Submission — 15 April 2011
Submission to the federal Department of Education, Employment and Workplace Relations review of the effectiveness of the Disability Standards for Education 2005.
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- Introduction
- Purpose and scope of the Education Standards Review
- Terms of reference
- Complaints of impairment in the area of education under the AD Act
- ADCQ submissions
- Attachment A - Table of cases at tribunal hearing (ADTQ and QCAT) on the ground of impairment in education 1993-2010.
- Footnotes
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1. Introduction
1.1. The Anti-Discrimination Commission (the ADCQ) is established under the Anti-Discrimination Act 1991 (the AD Act). One of the functions of the ADCQ is to promote an understanding and acceptance, and the public discussion of human rights in Queensland.
1.2. A major purpose of the AD Act is to promote equality of opportunity for everyone, including people with an impairment, by protecting them from unfair discrimination in the areas of the provision of education, goods and services, and the administration of State laws and programs.
1.3. In passing the AD Act in 1991, the Queensland Parliament cited its support of the Commonwealth in ratifying a number of international instruments. Those instruments include the Declaration on the Rights of Mentally Retarded Persons [1] and the Declaration on the Rights of Disabled Persons. [2]
1.4. On 30 March 2007 the Australian Government signed the United Nations Convention on the Rights of Persons with Disabilities (the Convention) and Australia ratified the Convention, with a reservation, on 17 July 2008. On 21 August 2009 Australia ratified the Optional Protocol to the Convention without reservation.
1.5. Subject to the reservation, both Australia and the State of Queensland have a duty to ensure that domestic laws conform to the obligations contained within the Convention.
1.6. Article 24 of the Convention concerns education and states:
1. States Parties recognize the right of persons with disabilities to education. With a view to realising this right without discrimination and on the basis of equal opportunity, States Parties shall ensure an inclusive education system at all levels and life long learning directed to:
- The full development of human potential and sense of dignity and self-worth, and the strengthening of respect for human rights, fundamental freedoms and human diversity;
- The development by persons with disabilities of their personality, talents and creativity, as well as their mental and physical abilities, to their fullest potential;
- Enabling persons with disabilities to participate effectively in a free society.
2. In realising this right, States Parties shall ensure that:
- Persons with disabilities are not excluded from the general education system on the basis of disability, and that children with disabilities are not excluded from free and compulsory primary education, or from secondary education, on the basis of disability;
- Persons with disabilities can access an inclusive, quality and free primary education and secondary education on an equal basis with others in the communities in which they live;
- Reasonable accommodation of the individual’s requirements is provided; [3]
- Persons with disabilities receive the support required, within the general education system, to facilitate their effective education;
- Effective individualized support measures are provided in environments that maximize academic and social development, consistent with the goal of full inclusion.
3. States Parties shall enable persons with disabilities to learn life and social development skills to facilitate their full and equal participation in education and as members of the community. To this end, States Parties shall take appropriate measures, including:
- Facilitating the learning of Braille, alternative script, augmentative and alternative modes, means and formats of communication and orientation and mobility skills, and facilitating peer support and mentoring;
- Facilitating the learning of sign language and the promotion of the linguistic identity of the deaf community;
- Ensuring that the education of persons, and in particular children, who are blind, deaf or deafblind, is delivered in the most appropriate languages and modes and means of communication for the individual, and in environments which maximize academic and social development.
4. In order to help ensure the realization of this right, States Parties shall take appropriate measures to employ teachers, including teachers with disabilities, who are qualified in sign language and/or Braille, and to train professionals and staff who work at all levels of education. Such training shall incorporate disability awareness and the use of appropriate augmentative and alternative modes, means and formats of communication, educational techniques and materials to support persons with disabilities.
5. States Parties shall ensure that persons with disabilities are able to access general tertiary education, vocational training, adult education and lifelong learning without discrimination and on an equal basis with others. To this end, States Parties shall ensure that reasonable accommodation is provided to persons with disabilities.
1.7. This is the context in which the ADCQ makes this submission.
2. Purpose and scope of the education standards review
The Disability Standards for Education came into effect on 18 August 2005. The Standards seek to ensure that students with disability are able to access and participate in education on the same basis as other students. A primary objective of introducing the Standards was to make rights and responsibilities in education and training easier to understand.
The Federal Minister for Education, in consultation with the Attorney-General, is required to commence a review of the effectiveness of the Standards in achieving their objectives, within five years of their taking effect. The review will determine whether the Standards are effective and whether they continue to be the most efficient mechanism for achieving the objectives of the Disability Discrimination Act 1992 (DDA).
3. Terms of Reference
In reviewing the effectiveness of the Standards, the review will consider whether the Standards:
- Have provided clarity and specificity for education and training providers and for students with disability and their families in relation to their rights and requirements under the Disability Discrimination Act 1992
- Have assisted people with disability to access and participate in education and training opportunities on the same basis as those without disability
- Have assisted to eliminate discrimination (including harassment and victimisation) of people with disability in education and training
- Have promoted recognition and acceptance in the community of the principle that people with disability have the same fundamental rights as the rest of the community
- Are compatible with Australia’s current education and training.
4. Complaints of impairment in the area of education under the AD Act
4.1. Analysis of education complaints made to ADCQ.
Table 1 shows the number of complaints made to the ADCQ since 2002 on the attribute of impairment in the area of education.
Impairment in education complaints table
| Year |
No complaints received |
Sector |
Education level |
2002 |
5 |
3 public
2 private |
2 primary
3 tertiary |
2003 |
16 |
12 public
4 private |
1 pre-primary
8 primary
4 secondary
3 tertiary |
2004 |
10 |
8 public
2 private |
5 primary
2 secondary
3 tertiary |
2005 |
12 |
11 public
1 private |
6 primary
3 secondary
3 tertiary |
2006 |
12 |
11 public
1 private |
6 primary
2 secondary
4 tertiary |
2007 |
17 |
13 public
4 private |
8 primary
6 secondary
3 tertiary |
2008 |
15 |
12 public
3 private |
1 pre-primary
10 primary
3 secondary
1 tertiary |
2009 |
13 |
5 public
8 private |
7 primary
5 secondary
1 tertiary |
2010 |
19 |
8 public
11 private |
9 primary
5 secondary
5 tertiary |
Table 1: Impairment in Education Complaints lodged with ADCQ since 2002
Since 2005 [4], 88 complaints have been made to the ADCQ, 60 of which have involved a public sector education provider and 28 involved a private sector provider. Forty Seven (47) have concerned the pre-primary/ primary level, twenty four (24) involved secondary level and (17) involved the tertiary level.
4.2 Type of impairment complaints
Complaints have generally been made by parents on behalf of their children who have a range of disabilities. A number of complaints also involve adult students in the tertiary education sector.
The types of impairment experienced by the complainants range from short term medical conditions (for example back conditions; mastitis and post partum infection); long term medical conditions (such as diabetes and heart conditions); physical mobility impairments; mental health conditions; and other conditions such autism, Asperger’s syndrome and ADHD. However, by far the most common type of impairment complaint made to the Commission are those lodged on behalf of people with an intellectual or cognitive disability who may also experience problems with learning and/or behavioural issues. For these students the most common forms of conduct of education authorities complained about by complainants are:
- Enrolment refusal
- Limited hours of attendance at school
- Levels of support and accommodations provided while at school
- Disciplinary proceedings
- Suspension and exclusions.
4.3 Tribunal Cases
A number of impairment complaints in the area of education that have not been conciliated in the ADCQ have been pursued to final hearing by complainants since the passing of the ADA. Attachment A lists the cases and outcomes of complaints of discrimination on the basis of impairment in the area of education that have been heard and determined by the Anti Discrimination Tribunal (up to December 2009), and the Queensland Civil and Administrative Tribunal (from December 2009) since the commencement of the AD Act 1991.
Since the introduction of the Disability Standards for Education were introduced in August 2005, five (5) cases have proceeded to hearing, of which one complaint has succeeded in proving discrimination , 3 have been dismissed, and 1 was adjourned with a direction for the registry to contact various organisations to try and organise legal representation for the complainant.
5. ADCQ submissions
Question 1 - Providing clarity
- Are the Standards easy to understand or are there parts that require clarification?
- Is the format of the Standards useful for understanding rights and requirements under each of the Standards?
Response
The Standards are generally easy to understand, and the format is generally useful in assisting stakeholders in determining the rights and requirements.
The ADCQ also suggest that there is an ambiguity that would be helpful to clarify in the following paragraph of the Guidance Notes [5] :
Clause 3.4.2 of the Standards makes it clear that the interests of the student are a very significant consideration in identifying an appropriate and reasonable adjustment. This is made explicit by the requirement to have regard to the student’s disability and the effect of the adjustment on the student, and the costs and benefits including those accruing to the student. If in a particular situation the school could show that a student would be better off in another available school which had the adjustments required by the student, then this would clearly be a factor in determining whether any significant adjustment at the school would be reasonable.
The paragraph does not make it clear whether there is an expectation that the school in question should be able to match the adjustments provided by the other school, or if the expectation is that the child is expected to attend the other available school which had the adjustments. This ambiguity should be clarified.
- Are the terms used in the Standards clear to users and providers?
Response
The ADCQ suggests that there may be a level of confusion caused to stakeholders in relation to the use of the terms 'reasonable adjustment' and 'unjustifiable hardship', and how those terms relate to each other. Within the note to section 3.4(2)(e) of the Standard is the statement 'the concept of unreasonable adjustment is different to the concept of unjustifiable hardship on the provider', and a similar statement is again made in the note to section 10.2 (3).
The Australian Human Rights Commission publication Federal Discrimination Law publication states-
- 'Reasonable adjustments'
'Reasonable adjustment' is defined in subsection 4(1) as follows:
[a]n adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person.
Accordingly, ‘reasonable adjustments’ are all adjustments that do not impose an unjustifiable hardship on the person making the adjustments (emphasis added).[6]
The suggestion in the Standards and the accompanying Guidance Notes [7] that stakeholders must consider the concepts of reasonable adjustment and unjustifiable hardship in two separate and distinct phases may cause confusion and a level of complexity to the process that is not necessary.
Where possible confusion and complexity concerning the concepts of reasonable adjustment and unjustifiable hardship should be removed.
- Are there any parts of the Standards that need additional explanation or details of where to find additional information?
Response
The ADCQ suggest that the Standards and/or the Guidance notes would benefit from the inclusion of more practical information and examples. Although it may be difficult to keep practical information current and up to date, our experience is that complaint parties sometimes do not have a good appreciation of what types of adjustments could be considered, or the availability of technology that may be of assistance. References to the various types of technologies and how to contact experts in its use may be of benefit to users of the Standards.
And while each case does turn on its own facts, and while matters considered relevant may change over a period of time, complaint parties may still benefit from examples of what types of adjustments have been determined to be reasonable, and instances of where ‘unjustifiable hardship’ has or has not been established by reference to Tribunal or Court adjudications of disability/education complaints. Plain English examples of real situations that illustrate the concepts and principles embodied in the Standards would be useful.
Question 2 - Rights and Obligations under the Standards
- Are stakeholders aware of the rights of students to enrol, access support and participate and the requirements of education providers to enable students with disability to access and participate in education and training on the same basis as students without disability?
Response
Part of the ADCQ’S complaint handling role is to attempt to facilitate conciliation between the various parties to a complaint of discrimination. This will usually involve an exchange of information between the parties, and a face to face conciliation conference where the issues involved in the complaint are discussed. Parties to complaints of discrimination on the basis of impairment in the area of education usually involve the person with disability or if that person is a child, their parent, and they may also have a lawyer or advocate assisting them (the complainant parties). The education provider involved in a complaint may involve a number of persons, ranging from teachers, principals, representatives from the corporate sections of their agencies, and their lawyers (the respondent parties).
Our complaint handling service operates from four locations, Brisbane, Rockhampton, Cairns and Townsville and each of those offices services regional Queensland. In gathering information for this submission, a short survey was conducted with all the conciliators engaged by the ADCQ across Queensland where the following questions were asked:
In dealing with education/ impairment cases have you had experience of either the complainant or the respondents referring to or relying on the Standards?
Would this occur in most cases, or is it a rare occurrence?
Do you believe most complainants have an awareness of the Standards?
Do you believe most respondents have an awareness of the Standards?
The feedback from conciliators indicates that many complainant and respondent parties are generally not aware of the Standards, or if they are, it is rare for either to refer to the Standards before making a complaint or during the complaint process. There are some occasions where the Standards have been used and referred to by complainant parties where people with some expertise in disability issues are involved e.g. a mother of a child with a visual impairment who was also a teacher with a level of expertise in teaching children with visual impairments; or where a disability legal service lawyer is involved.
It is the experience of the ADCQ through attending meetings where policy officers and other officials from education authorities are also in attendance, that those persons have a good level of awareness of the Standards and utilise them in their work.
From our experience and observations, it would appear that at a grass roots level that among both parents and teachers within school communities and other educational institutions there is a low level of awareness of the Standards and as such the Standards have not assisted stakeholders in understanding the requirements of providers under the DDA.
Even where there is a good awareness of the Standards, at the time the Commission is involved in dealing with a disability/education complaint the issue revolves around the reasonableness of adjustments provided. The Standards talk about 'balancing the interests of all concerned' in arriving at what is reasonable. It is rare that no adjustments at all have been provided by the respondents. While it would be possible to point the parties to the Standards, the discussion to try and resolve the complaint revolves around clarifying the facts of the complaint, and then reviewing and attempting to conciliate between the parties in relation to the accommodations or adjustments that have or have not been provided. As mentioned previously plain English examples of real situations that illustrate the concepts and principles embodied in the Standards would be useful.
The ADCQ recommends that there needs to be a greater effort at informing all those involved within the education system, including students (where age appropriate) parents, teachers, principals, administrators and officials of the existence of the Standards. It is also important that information about the Standards be presented in a way that is easily digested, written in plain English, and accessible to the broad school community. In a best case situation copies of the Standards, or literature that explains the standards in straight forward accessible manner, should be provided to any student or parent who presents at an educational institution and identifies that the student has a disability.
Question 3 - Access to education and training opportunities
- Have users of education and training experienced difficulties enrolling in educational institutions or participating in educational activities on the same basis as people with out disability?
Response
The fact that the ADCQ has dealt with over 88 disability/education complaints since the introduction of the Standards indicates that some users of training and education have experienced difficulty in enrolling in educational institutions or participating in educational activities on the same basis as people without disability. Indications are that the vast majority of people who may have experienced difficulties are reluctant to make formal complaints about the matters that concern them, and that the level of complaints received by the ADCQ each year would be a very small proportion of persons who have experienced such difficulties.
- Are the provisions for consultation and reasonable adjustment clear and adequate?
Response
See the response to Question 2 above.
Question 4 - Eliminating discrimination
Response
See the response to Question 1 above.
Other comments
- Is there anything else you would like to tell us about the Standards? For example are there any gaps that need to be addressed.
Response
CRPD Obligations
Since the Education Standards commenced in 2005, Australia has ratified the United Nations Convention on the Rights of Persons with Disabilities (the Convention).[8]
Both the Disability Discrimination Act 1992 and the Education Standards need to be reconsidered to ensure they reflect the obligations set out in Article 24 of the Convention.
Article 24(2) puts a major emphasis on the concept of full inclusion of students with disability in the general education system.
The article states inter alia that States Parties shall ensure that:
- Persons with disabilities are not excluded from the general education system on the basis of disability, and that children with disabilities are not excluded from free and compulsory primary education, or from secondary education, on the basis of disability;
- Persons with disabilities can access an inclusive, quality and free primary education and secondary education on an equal basis with others in the communities in which they live;
- Reasonable accommodation of the individual’s requirements is provided;
- Persons with disabilities receive the support required, within the general education system, to facilitate their effective education;
- Effective individualized support measures are provided in environments that maximize academic and social development, consistent with the goal of full inclusion.(emphasis added)
There is a need to ensure both the DDA and the Standards reflect the emphasis on full inclusion stated in the Convention.
Communication
In addition to greater effort to educate identified stakeholders in the education system about the Standards, there is also a need to educate those within the education community (parents and other students without disability) of the right to education and full inclusion of students with a disability. Anecdotal evidence provided to the ADCQ indicates that resistance within the school community from parents of children without disability can sometimes be a significant problem for the child with disability and their family including siblings remaining within and receiving an education within that particular educational institution.
Leadership and Commitment to inclusion
Legislation and Standards alone will not achieve the goal stated in the Convention of ensuring that persons with disabilities are able to access general tertiary education, vocational training, adult education and lifelong learning without discrimination and on an equal basis with others. It requires leadership and commitment from all those involved in the education community to ensure that this becomes a reality.
The ADCQ thanks the Department of Education, Training and Workplace Relations for the opportunity to make this submission.
KEVIN COCKS AM
Anti-Discrimination Commissioner Queensland
6. Attachment A - Table of cases at tribunal hearing (ADTQ and QCAT) on the ground of impairment in education 1993-2010.
Attachment A
| |
Case |
Details |
Outcome |
Costs |
| FH |
YB v State of Qld [2010] QCAT 395 (16 August 2010) |
Endicott, C – Snr Member – final hearing – indirect impairment (phonological disorder and organisational difficulties) discrimination in education |
Complaint dismissed |
|
| I |
Z v U & Ors [2008] QADT 11 (12 June 2008)
(No. 2) [2008] QADT 23 (21 October 2008) |
Boddice SC, D – Member – application to dismiss complaint by a full-time post-graduate research student and scholarship holder alleging impairment and victimisation. |
Complainant ordered to file & serve lists of documents & witness statements - complainant failed to comply with those orders and the complaint was dismissed. |
|
| FH |
Beanland v State of Queensland & Anor [2008] QADT 5 (9 April 2008) |
Boddice SC, D – Member - student with cerebral palsy and cortical visual impairment - assessment for Senior English and Senior German - special consideration. |
Complaint dismissed |
|
| I |
JC on behalf of BC v State of Queensland [2006] QADT 27 (11 July 2006) |
Dalton SC, J – President – 11 interlocutory applications by complainant who acts on behalf of her son |
Directed that the Registrar contact the Bar Assoc Qld & the Qld Law Society to enquire whether or not there is a lawyer who is able to assist the complainant with this matter on a pro bono basis.; |
|
| FH |
I on behalf of BI v State of Qld [2005] QADT 37 (14 December 2005)
[2006] QADT 19 – compensation & costs |
Dalton SC, J – President - inability to attend school because of schizophrenia or side-effects of medication - cancellation of enrolment |
$27,000 (general) - includes interest - to be held in trust |
Respondent to pay costs of $14,080. Complainant to pay Respondent $15,000 for costs. |
| I |
N v State of Queensland [2005] QADT 3 (3 February 2005) |
Dalton SC, J – Member - Application to dismiss complaint |
Application dismissed – complainant to file evidence & relief sought. |
|
| I |
N on behalf of N v State of Queensland (No 2) [2007] QADT 12 (30 March 2007) |
Wensley QC, R – Member - Hearing of matter remitted by Supreme Court |
The complainant is to pay the sum of $28,168.25 in relation to the two complaints which were dismissed on 22 August 2005. |
|
| I |
Cordery v State of Queensland [2005] QADT 2 (3 February 2005) |
Dalton SC, J - Member - Application to strike out parts of amended points of claim – student with Autism Spectrum Disorder & ADD – not allowed to attend state school |
Parts of amended points of claim struck out – complainant to file statements & evidence – review hearing to be arranged. |
|
| FH |
I v O'Rourke [2001] QADT 1 (31 Jan 2001)
[2001] QADT 2 – costs (30 April 2001) |
Copelin, R – President – student with ‘spastic quadriplegia’ and severe intellectual disability – access to school formal – excursion to Tangalooma – year 12 dinner |
Complaint successful in part (tourism excursion to Tangalooma) - $3000 (general) |
Each party bear own costs, as both parties partially successful |
| I |
Brackenreg v Queensland University of Technology [1999] QADT 11 (20 December 1999) |
Copelin, R – President – excluded student seeking readmission – impairment & ADHD |
Not sufficient evidence to find a real issue of discrimination under the Act. While there may be some justification for complaint as to procedures adopted by QUT that is not a matter for this Tribunal. The complainant has had access to the due process of QUT in that she has applied for re-admission and has taken advantage of the appeal procedures. |
|
| FH |
P v Director-General, Department of Education [1997] QADT 11 (13 March 1997) |
Keim, S – Member – exclusion from state school of student with Down Syndrome following reduction in funded special support – offer of place at special school |
Complaint dismissed |
|
| FH |
K v N School [1997] QADT 1 (7 January 1997) |
Homes, CE – Member – not allowing a child with an impairment and behavioural problems to re-enrol at a small Christian school with limited government funding |
Complaint dismissed |
|
| FH |
L v Minister for Education [1996] QADT 2 (18 January 1996) |
Holmes, CE – Member – 7 yr old girl with intellectual impairment – suspension from attendance at a regular state school |
Complaint dismissed - exemptions under s.44 and s.106 made out |
|
| I |
Hashish v Minister for Education [1996] QADT 1 (9 January 1996) Note: age & impairment in education |
Holmes, CE – Member - blind and deaf student required to leave school on turning 18 – interim order sought to continue education |
respondent prohibited from doing any act preventing complainant from attending school or receive appropriate special education services there, pending the resolution of this matter |
|
| I |
Finn v Minister for Education [1995] QADT 4 (19 July 1995) Note: age & impairment in education |
Atkinson, RG – President – 18 yr old girl intellectually impaired, profoundly deaf and has right hemiplegic cerebral palsy – discontinued enrolment at special school on turning 18 – interim order sought to continue education |
respondent re-admit the applicant to special school pending the determination of her complaint |
|
| |
CAD on behalf of SMD v JK and Scott [1993] QADT 5 (11 November 1993) |
Atkinson, RG – President – student with Down Syndrome - cancelation of an independent travel program by school –Tribunal hearing for costs. |
Compensation through conciliation with award of $950 compensation to mother. |
Costs refused |
FH = final hearing
I = Interlocutory hearing
7. Footnotes
- Proclaimed by the UN General Assembly in 1971.
- Declaration of the UN General Assembly made on 9 December 1975.
- 'Reasonable accommodation' means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms;
- The year the Disability Standards for Education 2005 commenced
- Section 4.2 9th paragraph
- Federal Discrimination Law - chapter 5 on DDA page 52 - http://www.hreoc.gov.au/legal/FDL/pdf/5_DDA.pdf
- Guidance Notes to Disability Standards for Education, Section 4.2 p46
- On 17 July 2008.
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