Special Education Leaders Conference

Graeme Innes AM
Parramatta , 6 June 2008

I begin by acknowledging the traditional owners of the land on which we meet today, the Darug people.

I'd also like to acknowledge, as I have done at similar conferences previously, what I have owed personally to people in education in NSW. Education with the support of many great education professionals together with support from family and friends to achieve my goals is why I am in the position I hold now. I compare that to the position of many blind and vision impaired people, facing over 80 per cent rates of unemployment or underemployment.

As educators of people with disabilities, you are also well aware of the disadvantages which people with disabilities face more generally. The correlation between disability and poverty is very strong; the number of people with disabilities either unemployed or under-employed is at least twice as high - and for some groups ten times as high- as in the general community. Education provides a means by which people with disabilities can overcome at least some of the barriers leading to these unequal outcomes.

I was asked to give a speech on recent cases on disability discrimination in education and what we can learn from them.

I have to admit at the outset that I am going to approach today a bit like the student who answers the exam question they wanted to see, instead of the one actually on the paper. In two respects:

• I don't really want to just give a speech, so much as start a discussion between us on what you as educators need from us in the equal opportunity industry – and as part of that, to see how we can learn more from you and the experience of all the people working in practice to achieve equality and access in education.

• I also want to emphasise that, in a post- Disability Standards environment, case law should not be the main point.

I'll come back to that, and I will actually discuss some cases, to give myself some chance of passing the exam. But before I get there, let me set the scene with some discussion of the Disability Discrimination Act and then the Disability Standards on Education.

The Disability Discrimination Act as you all no doubt know makes disability discrimination unlawful in education, among other areas, and provides for remedies to people who believe that they have been discriminated against, through the lodging of complaints. This has been the case now for fifteen years under the Disability Discrimination Act, and nearly 25 years here in NSW under the similar provisions of the AntiDiscrimination Act.

Our legislators have provided these remedies, and some students and families - with the assistance of discrimination professionals - have used them, to the tune of around 100 complaints a year in the education area. Perhaps as many complaints again are made each year to our State and Territory sister bodies under State and Territory laws.

The Federal Commission, in particular, publishes on our website as much information as we can on complaint outcomes, to the extent consistent with the privacy of students and families and in some cases the need for confidentiality as part of the resolution of a complaint. Decisions are also published on the small proportion of cases that are not resolved by us at the investigation and conciliation stage and which are taken on to the courts.

It is clear though that complaints are only at best a very partial picture of what is going on and not necessarily a very representative sample. To state the obvious, complaints processes are likely to relate to those instances where something has gone wrong, and do not necessarily capture all of the picture of what it looks like to get things right and how it's done. [That's true even though we try hard to publish information which is as meaningful as possible on successful outcomes.]

Enforcement mechanisms, including provision for complaints, are very important in providing accountability for compliance with most laws including this one but they are not the first and last word on achieving the objects of the law. When you learn to drive or in my case when I learnt to sail a boat, you don't spend most of your time studying cases about negligent driving or navigation. You study a more detailed and more practically useful set of rules – which are based in part on what can be learned from previous experience including previous cases - and you learn from people with practical knowledge of how it's done. And in actually getting somewhere, of course you keep the road rules in mind, but you need to learn far more in skills and experience than that. And you rely on other people sharing their experience through compiling maps and charts and through using technologies effectively – like GPS navigation.

In achieving educational opportunity for students with disabilities, from my perspective at HREOC most of the experience and knowledge on making that journey successfully is out there collectively with you as educators, and with your students and their families.

But there hasn't been enough talking in the last 15 to 25 years between the discrimination professionals and school level educators. With more discussion you might learn a little bit from us and I am sure that we will learn much more from you.

We know that in the education sector many people are using the law effectively as a lever to achieve change within systems and institutions.

In other parts of the education sector, particularly in universities and adult and community education, education providers have taken up the invitation to develop voluntary disability action plans and to lodge them with the Commission. The process of developing an action plan has helped many organisations focus on what barriers it needs to address and what strategies is it going to use to address them. Publishing an action plan also provides a means of sharing that experience with other organisations.

So I'd like to pose a question and perhaps a challenge – why are there so few action plans from the school education sector? Are there things we could do together to change that?

I'm not suggesting that a formal action plan is the only way to have strategies to address disability discrimination and plan for disability equality, or the only way to share practical experience and strategies. I'd be very happy to hear more from you on other avenues which already exist and which I don't know enough about, or avenues which might be developed further.

Back for the moment from the future and where we might go to where are we now.

As I have said the Disability Discrimination Act makes discrimination unlawful. But despite the definitions of discrimination being quiet complicated, they do not give very much detail about what discrimination is and what to do instead. Just having the general discrimination provisions is a bit like just having the law of negligence without any road rules. Good for the lawyers perhaps but not that great a way to get to the destination.

So the Disability Standards for Education 2005 were created to clarify and elaborate on the rights of people with disabilities and on the obligations of education and training providers, under the Disability Discrimination Act. The Standards specify how education can be made more accessible, more supportive and more inclusive for students with disabilities.

These Standards were developed through a process of negotiation between the disability sector, government and non-government education providers and other interested parties. Indeed the drafting of the Standards was largely undertaken by representatives of education authorities rather than by anti-discrimination bodies or Attorney-Generals departments.

The Standards cover the areas of enrolment, participation, curriculum, student support services and the elimination of harassment and victimisation.

Each section of the Standards follows the same pattern. It states the right that a student with a disability is entitled to, describes the legal obligation on educational authorities and institutions toward students with disabilities and describes the measures to be implemented by educational authorities and institutions to achieve compliance with the obligations.

The Standards state that education providers must take reasonable steps to ensure that students are able to enjoy the rights on the same basis as students without a disability and without experiencing discrimination.

The Standards detail that consultation should take place with students to ensure that discrimination does not occur and if it appears after this consultation , that discrimination could occur, then reasonable adjustments' should be made, to address this situation and remove any potential for discrimination against students with disabilities. The decision on what "reasonable adjustments" are is to be determined by balancing the interests of all the parties affected, taking into consideration the benefits and disadvantages and the costs involved.

The Standards are intended to empower and educate those in the education and training sectors on how to be proactive in ensuring students with disabilities have equal access and opportunity in education, and helping to enable students with disabilities to achieve their educational objectives and goals and contribute to wider society in their chosen fields.

The intention was in fact to reduce the need to go through complaint processes to resolve issues and to find out what the law means. The intention as far as possible was that instead of looking to case law to see what courts and tribunals say the law means, we would all be looking to the Standards and the guidance material issued with them.

My own impression at present is that - with a couple of possible exceptions which I will discuss in a moment - there is much more need for easier access to practical information on solutions to issues that arise in seeking to provide equal educational opportunity than there is for much more detailed information about the law than the Standards themselves and the accompanying Guidance Notes.

Of course, if, despite the best intentions of the people who developed the standards, critical issues of the meaning and extent of rights and responsibilities in this area are still having to be worked out by development of case law, we need to hear that message clearly.

One reason is that the Standards were introduced with a commitment to review them at the point of 5 years of operation. Already that is only two years away – and the Commission will be arguing strongly that the review should be complete at the 5 year maker, not just started after that point. So in my view we are actually looking at a review starting next year. If the standards need improvement in any area, that will only happen through input from the people using them.

Obviously HREOC has a role in contributing to review of these and other disability standards, including through our experience as the body receiving complaints. But as I've said, most experience is out there with education providers, with students and their families, and in particular with networks of experts like yourselves who are working to make effective access and opportunity happen.

And of course that experience includes experience of all the issues and instances which never turn into complaints, hopefully because the Standards have worked as intended and assisted education providers to resolve the issue for themselves and provide effective outcomes for students.

In some areas of life it's unfortunately fairly clear that the complaints we receive are just small tips on some very big icebergs of discrimination. A few hundred complaints on access to buildings barely start to touch hundreds of thousands of inaccessible commercial and public buildings, for example, let alone the accessibility of millions of the houses in which we will all be hoping to live as we get older and thus more and more likely to have a significant disability.

In education, while it's certainly not all plain sailing, I think there have at the least been some titanic efforts made in recent years to clear channels through the ice.

There are certainly still areas where warm currents of money need to flow, and the sunlight of positive leadership and priority setting from the top needs to shine, to melt the way through to equal opportunity.

I'm thinking here mainly of issues for students needing significant amounts of time from dedicated support staff, whether to provide sign language interpreting, or assist in addressing behavioural issues, or provide assistance needed for some students with high levels of physical disability.

More could be done too within many education systems and institutions in policies and procedures to aid the efforts of the people chipping away to remove barriers. In particular I would like to see more educational institutions and systems at school level following the example of other levels of education in developing and publishing disability action plans – which in some cases of course might be as simple as emailing us the disability strategies they already have in place, but which we and others interested don't have easy access to at present.

But even in those matters which do come through to HREOC as complaints, our conciliation staff are reporting a pleasing number being resolved as soon as we raise the issue with the institution concerned, and a very clear majority being settled by conciliation overall rather than the parties being frozen in opposing positions and awaiting a decision from the courts.

Summaries of conciliation outcomes are on our website as I've said. I won't impose on your time to go through them now, but I hope you will look at them if you haven't already.

The sorts of cases presented there would be familiar to you all. If anything my point is that just because the issues involved have been the subject of complaints, does not mean that most of these are extraordinary issues any more difficult than those you deal with every day.

Probably those posing most difficulty are those involving a need to find additional funding, and those where disability involves issues with behaviour which may impact on learning by other students.

This does bring me - in the last few minutes before the examiners say “pens down, hands off Braille keyboards and no more dictation to your amenuensis” – to some discussion of case law in terms of decisions from courts and tribunals.

Let me start with Purvis: a landmark case that wasn't – at least for education providers.

The Purvis case involved a boy who had experienced brain injury and had various disabilities involving behavioural issues as a result. Very briefly, there was dispute about the school's response to those behavioural issues. The case went all the way to the High Court, and it is natural to think therefore that it must be an important decision.

Now clearly it was, for the people directly involved, on all sides, and it does have some importance for what the direct discrimination provisions of the DDA mean for areas beyond education. [A phrase which here means, it made it very difficult in several respects to determine exactly what those provisions now do mean (and incidentally how the same words in similar Federal discrimination laws could mean very different things). ]

The decision raises important law reform issues which I hope will be addressed as soon as possible. But the decision has basically less than zero continuing relevance to what happens in education – because the Disability Standards, not the general anti-discrimination provisions of the DDA, are the law to apply, and have been to anything happening since late 2005.

The Purvis case established that the direct discrimination provision of the DDA, section 5, does not contain any requirement to make reasonable adjustments rather than only to provide formal equality through treating everyone alike. It did not, however, establish anything like the proposition that the DDA as a whole fails to require reasonable adjustment.

First, as was pointed out in the case of Clarke v Catholic Education Office, by the Federal Court and then by the Full Federal Court on appeal, the general discrimination provisions of the DDA also refer to indirect discrimination – and removing indirect discrimination often does amount to the same thing as making reasonable adjustments.

Second, as I have noted, the DDA includes the Disability Standards for Education and those definitely do require making reasonable adjustments.

This point means that education providers (other than those involved in teaching the history of Australian anti-discrimination law) should pay precisely no continuing attention to the decision in Hinchcliffe v University of Sydney, despite the many pages of complicated and interesting discussion involved.

That case did highlight a major defect in the indirect discrimination provisions of the DDA (and similar provisions of a number of other Australian anti-discrimination laws) which I hope will shortly be remedied both for the DDA and for its sister Acts for the benefit of areas beyond education.

Ms Hinchcliffe is a student with a vision impairment who complained about provision of course materials only in paper format. Indirect discrimination as defined in section 6 of the DDA involves imposition of a requirement which a person with a disability is unable to comply with or does not comply with. The court found that in this case Ms Hinchcliffe could comply with having to deal with paper documents – albeit by her and her mother spending hours each week scanning rather than being able to work study or enjoy life in other respects.

Clearly, it would be far better if indirect discrimination provisions referred only to people being disadvantaged rather than using an all or nothing, “can / cannot comply” test. This is an important law reform issue but, again, it has no remaining relevance to education providers. It was a complaint about actions before the Disability Standards came into force and the same complaint now would not have been lost on this basis: there would have to be an assessment instead of the real issue, which is what adjustments can reasonably be provided in each case.

The same comment can be made about the Devlin and Hurst cases, which were heard together. Two Deaf students seeking access to Auslan interpreting. Both alike in dignity and rights – but with different outcomes in the Federal Court. One succeeded in his claim of indirect discrimination – he could not comply with a requirement to be educated without interpreting. The other, Ms Hurst, lost her case at first – unfortunately for her she was so capable a student that she could manage to comply even with a requirement which the court found was unreasonable. The Full Federal Court restored a more commonsense interpretation and one which clearly renders irrelevant to education providers the substandard decision in Hinchcliffe. The Full Court held that the critical issue was not whether the student could cope but whether, by reason of the requirement or condition that she be taught without Auslan assistance, she suffered serious disadvantage. The Court further held that a child may be seriously disadvantaged if deprived of the opportunity to reach his or her full potential and, perhaps, to excel.

I welcome and endorse the decision of the Full Court in this matter and I am working to have the indirect discrimination provisions of the DDA reformed to reflect this approach as the Sex Discrimination Act already does. Again, though, for education providers the Standards are the thing, not the complexities of indirect discrimination law.

The most significant recent case has in fact been one under the Victorian Equal Opportunity Act rather than under the DDA or the federal Disability Standards, and from a tribunal rather than in the High Court.

I'm referring to Rebekah Turner's case against the Victorian Department of Education. Rebekah is a year 11 student with a severe language and learning disorder. A few months ago the Victorian Civil and Administrative Tribunal awarded her $80,000 compensation for lack of individualized adjustments and support in the past and access to a full-time teacher's aide for her last two years of school.

The decision attracted some controversy with some comments being made to the effect that it was easy for courts and tribunals to cater for the needs of an individual student, but schools had to stretch limited disability support budgets to cover the needs of all students requiring assistance.

Now I have to admit there is a fair bit of plausibility in the view that educators should run schools and that elected governments have ultimate responsibility for deciding resource allocation. At the same time, one of the major purposes of having human rights laws at all is to make sure that the less powerful and the disadvantaged don't miss out on their share of freedom and opportunity in the democratic scramble.

Being a child with a disability puts you firmly in the camp of the less powerful in our society even before you take account of the extraordinary rate of disabilities such as hearing impairment among indigenous children in particular.

To me, what the Tribunal decision in Rebekah Turner's case says is that looking at the issue as one of how to divide up a limited disability support budget is the wrong way to look at it. The issue is how to allocate resources available for education to meet the needs of all children.

This is consistent with what the DDA says on how to decide if particular adjustments would impose an unjustifiable hardship. The DDA directs attention to the resources available to the organisation concerned – not the resources that happen to have been allocated specifically to disability support services.

Of course, this does raise major issues for education systems and governments on how to plan and allocate resources.

But this is a good time for creative thinking and for being ambitious in aiming to make a big difference for people with disability in Australia .

The Government this week put before Parliament a proposal to ratify the United Nations Convention on the Rights of Persons with Disabilities. Linked with that is a commitment to develop a National Disability Strategy based on the Convention.

I'm hopeful from discussions so far that this strategy will include all areas of government and all levels of government. Already being developed as part of the same process is a national disability employment strategy. My own view is that we should be looking for Commonwealth, State and Territory Ministers in each and every area of public policy and service delivery to develop disability strategies for that area. Certainly a national disability education strategy has a ring to it to me.

You are the people working closely with school students with disability and their families to make opportunity in education a reality. I am very sincere in my interest for us to work more closely together to assist you in your work and through this to make human rights a reality for students with disability – everywhere, everyone, every day.

Thanks.