The right to belong
- disability discrimination law in education

Speech by Elizabeth Hastings, Disability Discrimination Commissioner 1993-97 Sydney, July 1997

Belonging

I
have called this paper "the right to belong", and it is with
this idea that I wish to begin my address to you this afternoon, before
discussing in more detail the current state of the law in relation to
disability discrimination.

The
most frequent word used by policy makers when considering the education
of people with disabilities is inclusion. The word is also now being used
by the churches, which have just discovered disability discrimination.
It is a word with which I have a very ambivalent relationship.

On
the positive side, the exercising of policy minds with the concept of
inclusion does result in more access for and participation by people with
disabilities. About the desirability of this I have no doubt, and the
imagination, flexibility and determination that has gone into the design
of inclusive curriculum must be acknowledged and applauded.

However,
the very word "inclusion" places the onus to decide whether
or not to include on those who do not have the disability. That is, those
of us who do have a disability will be included by the grace of those
who are making the decisions, not by our right as human beings, as members
of the common weal. We are still in some sense a supplicant group, depending
upon the good will of others for our involvement, our welcome, our belonging.
We are still in receipt of the favour, the benison, the conditionality
of the experience.

You
may think this is simply playing with words, however as a person with
a disability who has given serious consideration to these matters for
over 30 years, I can assure you that the Word is of paramount importance.
These days we talk about something being "only" a symbol, as
though a symbol is nothing much, "just words". This interpretation
has been most evident recently in the discussion of whether or not to
make an apology on behalf of the nation to our indigenous people for certain
government policies of the past. It is clear from the arguments and requests
of indigenous people that an apology is not "only" a symbol,
but is a concrete event which would be concretely felt both in the community
and in each person.

Similarly,
in the area of disability, words are concretely experienced in the body,
in the mind, in the soul. This is why self-definition has always been
so important to the disability rights movement; this is why labels such
as "mentally retarded", "crippled", "lunatic"
and "deaf and dumb" are no longer used, and why at last even
journalists are beginning to get a grip on the phrase "person with
a disability" and may, on occasion, overcome the temptation to describe
a person as "suffering".

Perhaps
I could best demonstrate the significance of language by looking briefly
at the Convention on the Rights of the Child, usually affectionately referred
to as CROC. This Convention was adopted by the United Nations General
Assembly on 20 November 1989 and entered into force on 2 September 1990.
In the third paragraph of the preamble there is the phrase "everyone
is entitled to all the rights and freedoms set forth [in the Universal
Declaration of Human Rights]", followed by a list of distinctions
which are not to be considered, as though the word "everyone"
has no meaning. Later, in Article 1, "a child" is defined as
"every human being below the age of eighteen years", yet Article
2 goes on again with a series of disallowed distinctions, this time mentioning
disability among others. Again, it appears that the phrase "every
human being" has no real meaning. Later in the Convention, after
22 articles referring to "the child", meaning "all children",
there is article 23 on "handicapped children", stating that
they too should enjoy a full and decent life, just in case that was not
assumed from the previous 22 statements - which no doubt it was not.

Is
this not an extraordinary phenomenon? It would leave me speechless were
I not committed to speak to you for at least another half an hour. It
suggests that "every human being" can be interpreted to mean
"some human beings", and to exclude some other human beings
unless they are fortunate enough to have been specifically described in
these qualifying phrases. Or perhaps it means that if one is different
in some respect from whoever wrote or administers the Convention, one
is not actually a human being: the list of disallowed statuses somehow
confers a type of honorary human being-ness on an otherwise non-human.

This
is the, as it were, deep knowledge of people with disabilities: "every
human being" does not mean me unless I am specifically pointed out
as also included. It is this that leaves me in some discomfort with the
word inclusion, a word which suggests I do not belong until you say I
do.

It
is the experience of people with disabilities that we have been actively
excluded from participation in ordinary living: excluded by flights of
stairs, unsuitable information formats, unyielding rules, inaccessible
facilities and hurtful attitudes. It would be more correct for policy
makers to plan to stop excluding rather than to start including, to acknowledge
our right to belong rather than to treat us as optional extras in our
community.

You
may have noticed that I am using the first person in relation to people
with disabilities: I am saying "we" and "our" instead
of "them" and "their". There is always an awkwardness
for me in how to align myself when speaking as the Commissioner: if I
say "we" and "our", potential respondents may think
I am biased; if I say "them" and "their" I am alienated.
I have decided on this occasion to acknowledge that I am of the "optional
extra" class. I hope it will become evident that belonging to a particular
group does not preclude me from the capacity for impartial and disinterested
consideration of the issues as required by my appointment.

A
decision to belong (Bradley Kinsela v QUT)

The
DDA has been used in a way which illustrates very clearly what I have
been saying. In February 1996 Mr.Bradley Kinsela wrote to the Commission
alleging that he had been treated unfavourably by the Queensland University
of Technology ("the University") because of his disability.
The complaint was in relation to his graduation ceremony. Mr. Kinsela
alleged he would be unable to graduate alongside his fellow students because
of difficulties with access at the venue chosen for the ceremony. The
complaint could not be resolved by conciliation, and I referred it to
the Commission for formal hearing pursuant to section 76 of the Act.

Mr.
Kinsela uses a manual wheelchair for mobility. For the previous 3 years
he had been studying full-time for a Bachelor of Science (Human Services)
degree, a course to which he was attracted after the accident that caused
his disability and made him rethink his aims in life. The course philosophy
is that all people (there it is again!) should enjoy fundamental civil,
political, economic, social and cultural rights. As early as September
1994 one of Mr. Kinsela's lecturers sent a memorandum to the relevant
Pro-Vice-Chancellor, drawing attention to the experience of another student
who used a wheelchair for mobility and who was segregated from fellow
students during their graduation ceremony, and alerting organisers to
the need to ensure that the University observed modern disability practice
(not to mention the law!) by finding a way to allow students with such
mobility impairments to be an ordinary part of the experience offered
to other students. However, nothing adequate was done to accommodate Mr.
Kinsela.

The
Hearing Commissioner found the complaint substantiated and made a declaration
that the university provide or arrange for the provision of facilities,
including choice of venue for the graduation ceremony, that would enable
the complainant to participate in that ceremony alongside his fellow students,
and in the same way as they would be participating.

Clearly,
Mr. Kinsela wanted to belong, and be seen to belong, to the ordinary category
of graduand, and not be obliged to accept different treatment which would
have singled him out as a different kind of student. Where the protocol
manual dictated what all students would do at any point in the ceremony,
Mr. Kinsela wished to be automatically included in, to belong in, the
category "all students", just as I have pointed out the wish
of people with disabilities to belong automatically in the category "every
human being".

A
law to belong: the Disability Discrimination Act

In
Australia the right to belong is recognised in State and Federal anti-discrimination
law. Our national commitment to human rights, formalised by the signing
of various international instruments, requires that people who have a
disability be recognised as full citizens and that our rights to equal
participation in the life of the community be assured, along with all
Australians. It is implemented by means of domestic laws, both commonwealth
and state, which specify in what areas people's rights are to be protected,
and on what grounds it is unlawful to discriminate against us. The word
"inclusion" does not appear, but it may be unlawful to exclude.

As
the Disability Discrimination Commissioner, I am a member of the Human
Rights and Equal Opportunity Commission. I perform various functions for
the Commission under the Disability Discrimination Act. The major objectives
of this legislation are to eliminate, as far as possible, discrimination
against people on the ground of disability; to ensure, as far as practicable,
that people with disabilities have the same rights to equality before
the law as the rest of the community; and to promote community acceptance
of the principle that people with disabilities have the same fundamental
rights as all members of the community.

Disability
is broadly defined in the legislation to include physical, intellectual,
sensory, neurological and psychiatric disabilities as well as certain
conditions or potential conditions which may have a disabling effect.
Discrimination is unlawful in education, employment, public transportation,
sport, clubs and associations, accommodation, finance and banking, insurance
and superannuation, access to premises and to goods, services and facilities,
and in Commonwealth laws and programs. Harassment on the basis of disability
is unlawful in employment, education and the provision of goods and services.

It
is an error frequently repeated that anti-discrimination and equal opportunity
legislation confers some special or extra rights over and above those
enjoyed by the community in general. This is not so: such legislation
simply ensures and protects the enjoyment of ordinary rights and ordinary
responsibilities. Nothing is added except a guarantee of that equal access,
expected and assumed by most but still denied to many, to the social,
educational, commercial, political and cultural life of the community
of which we are all members. It has been necessary legislatively to establish
this guarantee for certain groups of people because the community at large
does not honour it in the ordinary conduct of its affairs.

Since
1981 every State except Tasmania has enacted anti-discrimination legislation,
including on the grounds of disability, and including in the area of education.
The DDA does not make demands other than those already made in anti-discrimination
legislation. It does provide uniform protection of internationally recognised
rights. Section 12 of the DDA sets out the constitutional basis for its
powers and jurisdiction, including s12(8) which states that the relevant
provisions have effect in relation to discrimination against a person
with a disability to the extent that the provisions relate to matters
external to Australia or relate to matters of international concern. The
Convention on the Rights of the Child, which was ratified by Australia
in December 1990 and which is implied in these provisions, specifically
mentions disability in its discrimination clause which applies to all
the substantive rights recognised, education included, as well as there
being a specific article on children with disabilities which emphasises
integration and provision of appropriate supports. Laws of the States
are not excluded or limited where they are capable of operating concurrently
with the DDA: otherwise the Commonwealth law prevails.

Some
of my functions under the Disability Discrimination Act are: the handling
of complaints; education and promoting public awareness concerning disability
issues; advice to Government and to the Parliament; encouragement and
monitoring of compliance with the objects of the Act; and inquiry into
laws and programs of government which appear to infringe human rights
or which may be discriminatory. In this latter category I am currently
conducting an examination into certain Medicare regulations relating to
rebates for psychiatric treatment. The Commission may also grant exemptions
from its legislation, and I advise on these in relation to the DDA; so
far there have been three such applications, one from an education provider.
There is also a capacity for the Commission to publish guidelines in relation
to certain aspects of the law: the Commission has recently released guidelines
on access to premises which will be relevant to those of you who are providers
of education and who are managers of buildings, grounds and plant.

All
the anti-discrimination laws administered by the Human Rights and Equal
Opportunity Commission provide the opportunity for people who think they
have been discriminated against on grounds covered by the legislation
to make complaints and either have them resolved through conciliation,
or proceed to a formal hearing if conciliation fails. Approximately 8-10%
of DDA complaints relate to education: I will return to this aspect of
my work later.

A
standard for belonging

The
Disability Discrimination Act includes provision for a process that is
not common in other legislation, but is a very practical means of assisting
in the implementation of the Act. I am referring to the provision in section
31 for the Attorney General to formulate Standards under the Act. These
Standards may be made in the areas of public transport, employment, accommodation,
education, and Commonwealth Government laws and programmes.

There
are two main reasons for the inclusion of this provision. The first is
to provide clearer delineation of what actually must be done to ensure
access and equity than is provided for in the Act itself, in which the
requirements for equal access for people with disabilities are only broadly
stated. This type of open-ended legislation has its advantages, but is
limited in its capacity effectively and consistently to achieve equality
for people with disabilities. The second reason for the Standards-making
provision is to set time scales in place under the law for achieving equal
access for people with disabilities in the areas covered by the DDA; plainly,
it is not feasible to bring in far-reaching mandatory requirements and
expect the world to change from that point on. The existing built environment,
for example, is not amenable to instantaneous transformation.

Disability
Standards, then, will reduce some of the uncertainty arising out the broadness
of the provisions, and, importantly, will reduce the burdens of time,
staff resources, expense, uncertainty, and personal stress and anxiety
involved for people in pursuing complaints under the Act and indeed for
those pursued by such complaints.

Currently,
there is a Task Force of the Ministerial Council on Education, Employment,
Training and Youth Affairs established to draft Disability Standards in
Education under the DDA. If agreement is reached, the draft will be circulated
to specific interest groups for comment. When the comments have been considered
and incorporated as appropriate, the draft Standards will be presented
to the federal Attorney-General for approval and tabling in Parliament.
It is unlawful to do an act that contravenes Disability Standards. Because
of the complexity of the whole area, I am not expecting this process to
be concluded in the very near future, however the sooner the better for
all parties. I have been contributing the benefit of the Commission's
experience in the development of other Standards, most relevantly a national
accessible public transport Standard and a draft employment Standard under
the DDA, and advising as to the requirements of the DDA.

The
scope of education decided upon by the Task Force encompasses, as does
the DDA, the whole range of lifelong learning, virtually from the cradle
to the grave: it includes early intervention, pre-school and child care
services, the compulsory schooling sector, adult vocational education
and training, higher academic education, and adult recreational learning.

Extraordinarily
complex though it is, the development of Disability Standards in education
will set parameters for the elimination of discrimination and will allow
providers and users to get on with the business of education.

Complaints,
settlements and hearings

Let
me now come to the specific provisions of the Act in relation to education,
the issues that have arisen both through complaints and through my consultations
in the sector, and the current state of the law.

Section
22 states it is unlawful for an educational authority to discriminate
against a person on the ground of the person's disability or a disability
of any of the person's associates by refusing or failing to accept the
person's application for admission as a student; or in the terms or conditions
on which it is prepared to admit the person as a student. Furthermore,
it is unlawful to discriminate on the ground of disability by denying
access, or limiting access, to any benefit provided by the educational
authority; or by expelling the student; or by subjecting the student to
any other detriment. It is not unlawful to refuse or fail to accept a
person's application for admission as a student where the person, if admitted,
would require services or facilities that are not required by students
who do not have a disability and the provision of which would impose unjustifiable
hardship on the educational authority.

You
will notice that there is at present no provision for the lawful exclusion
of a student once admitted to an educational institution. This lacuna
in the legislation was highlighted in an application for an exemption
from the Act, and I have written to the Attorney-General pointing it out.
I think the Act requires amendment here to accommodate situations where
the status of a student changes through the course of education, and to
preclude the possibility of a student being refused admission in case
later adjustments may prove too onerous, for example in the case of a
child with a progressive disease.

The
Commission has received a wide variety of complaints under section 22.
These include matters relating to every level of education from pre-school
to tertiary, and every type of disability. Where the matter concerns pre-
or post-school provision of education there has been, on the whole, a
willingness to arrive at a conciliated settlement. There has been less
willingness for this from departments of school education and many of
these matters have not, in the first instance, been conciliable. In those
cases I have referred the complaint to the Commission for Hearing; in
almost every case this has resulted in a confidential settlement immediately
before or during the Hearing. Generally these have been an agreement by
the department to allow the child to be enrolled at the school of the
parents' choice.

This
pattern of late settlement is noteworthy and indicates that some education
authorities are keen to avoid setting precedents in this area. In my opinion
this ad hoc solution of individual cases is not the best way to make decisions:
the important issues are not aired, discussed or determined, and our case
law remains impoverished and unhelpful as to how to eliminate discrimination
and thereby avoid complaints.

There
are currently two matters which have actually gone to Hearing, although
both are substantially delayed by various factors and there is no decision
yet available.

There
is, however, one recent case which has added a little to our body of law
on these matters. In January last year the Queensland Anti-Discrimination
Tribunal dismissed a matter between "L" and the Minister for
Education for the State of Queensland. "L" was a seven year
old girl with an intellectual impairment which had a severe impact on
her intellectual development, her ability to communicate, her gross motor
skills and her capacity to care for herself in matters such as eating
and hygiene. She spent two days a week in a Special Education Development
Unit, and three at a regular State primary school until a changed arrangement
in placed her in the primary school for five days per week. She was assessed
as requiring the highest level of support, so an individual program was
developed for her and funding for a teacher's aide was obtained.

Despite
these arrangements, and many attempts to solve problems as they arose,
the school experienced significant difficulties in managing "L's"
behaviour, her tendency to regurgitate, and difficulties with toileting.
The teachers felt she was learning very little and they experienced great
stress in having to cope with "L" while meeting their obligations
to other students. At one point it was proposed to "L's" mother
that she be placed in another special education unit, but Mrs. O, believing
a regular school setting to be the best for "L", declined this
offer. In July 1995 "L" was suspended from attendance at the
school. Various reviews took place, and the suspension remained in effect.
A complaint was brought under the Queensland Anti-Discrimination Act,
and finally went to the Tribunal for determination.

The
respondent defended its actions on three bases: the claim of potential
infective hazard was rejected by the Tribunal; that of unjustifiable hardship
was accepted by the Tribunal after consideration of complex evidence,
not limited to assessment of financial cost; and the claim that the suspension
was specifically required or authorised by an existing provision of another
Act was also upheld by the Tribunal. The finding was that there had been
discrimination on the ground of disability but that it was not unlawful,
and the complaint was dismissed.

Unjustifiable
hardship

This
matter required the Tribunal to consider unjustifiable hardship in its
broadest sense, including the nature of the benefit likely to accrue or
the detriment which may be suffered by any persons concerned; the effect
of the disability of the person concerned; the financial circumstances
and the estimated amount of expenditure required to be made by the person
claiming unjustifiable hardship; and any other factors which may be relevant
in the particular circumstances. These words are taken from s11 of the
DDA outlining what must be taken into account when deciding whether or
not the defence of unjustifiable hardship will hold up. As you can see,
and as the Queensland Tribunal emphasised, this assessment must be made
afresh for each case as it arises.

Such
assessments have been made informally and without the pressure of the
law for many years. Indeed, I remember when in 1981 the first two blind
children were allowed to attend a mainstream primary school in Victoria
- a mere 16 years ago. Thank heaven for the International Year of Disabled
Persons which was, in this country, a sort of Rubicon for people who have
disabilities: we may have exhausted ourselves in swimming across it, but
once the other shore was achieved there has been no turning back.

Although
the assessment of unjustifiable hardship takes account of a variety of
considerations, there can be no doubt that the factor most often cited
as preventing the integration of a child with a disability into mainstream
schooling is funding. The McRae report, released last year, estimated
that on average the cost is double that for a child without a disability:
but, as the report noted, such averaging is meaningless when the extra
cost for one child may be a few hundred dollars for computer software
while for another it could be tens of thousands for full time, one-to-one
support.

Although
complainants often assert otherwise, the provision of "adequate resources"
as such is not demanded by the Act. The DDA cannot require State or other
governments and authorities to make particular budgetary decisions: it
can only require that whatever budget is available is distributed in a
non-discriminatory way.

The
purpose of ensuring access to education for young people with disabilities,
and so for providing the funding, is learning, to whatever level is possible;
it is of no use to have access to "being present", just sitting
in a classroom, if genuine learning is not facilitated. The DDA does not
make any judgement as to the best type of education for students with
disabilities; it does not favour mainstream over special, or vice versa.
It does require that where a choice is made for mainstream education there
be no unlawful discrimination on the ground of disability. Many parents
may continue to prefer special education for their child, and the DDA
allows for such special measures under s45, provided they do not infringe
the child's human rights and are reasonably intended to benefit the child.

The
problem of funding, resourcing and supporting non-discriminatory principles
has not yet been solved at the political and budgetary end. There is still
a tendency to plan and budget for an artificial or non-existent community:
the fantasy community of happy young people who do not have disabilities
and whose mums and dads are contentedly married, interested in their education,
actively and competently involved on school councils and management committees
and pack nutritious lunches. Until our governments begin designing for
the real world the needs of children who have disabilities will continue
to be set aside as too expensive an addition to the "core" budget.
If I did nothing else in my five years as Commissioner than begin to get
politicians and treasury officials to recognise people who have disabilities
as "core" human beings, "core" citizens, "core"
members of our community, with the right to be included in "core"
budget, then that one thing would have been worth it. But I'm not holding
my breath!

On
this point, let me share with you something which was presented in 1995
to the American House Subcommittee on Early Childhood, Youth and Families
by Richard Riley, Secretary of the U.S. Department of Education. He reported
to the House:

"Disabled
students and their families do not want to be shut away and given a
watered-down curriculum; they want an opportunity to study and to work
so that they can contribute to society. Special education is being shown
to be an important asset in overall school improvement. Where special
education is seen as a "service", and not a "place",
it contributes to the overall resources of the school, enriching the
teaching and learning for all children.

This
means that we must stop thinking about "special education"
as a separate program and a separate place to put students, and start
thinking about "special education" as the supports and services
children need in whatever setting is the least restrictive - whether
it be the regular classroom, a resource room, a separate classroom,
or a separate school."

Education
complaints

I
shall now return to some more specific aspects of the DDA in education.

I said
earlier that 8-10% of the complaints under the DDA relate to education.
Most of these are brought by parents on behalf of their child with a disability,
usually in relation to a State Department of Education that wants them
to place the child in a special education unit or school, or in relation
to behaviour management practices for children whose disability results
in challenging behaviours. These latter are, as you can imagine, extremely
difficult to handle: often the complaint is a result of the total breakdown
of relationship with the school and teachers, and the positions may well
be intractably polarised. Sometimes investigation makes it evident that
the school has done everything reasonably in its power to sort out the
problem, and I may decide to decline the complaint as not involving an
unlawful act, or as lacking in substance. On other occasions the perceived
discriminatory act may have nothing to do with the child's disability,
or there may be no sufficient evidence of the connection, and again I
may decline to inquire further into the matter. All my decisions to decline
a matter carry a right to review by the President of the Commission. For
your peace of mind, most of my decisions are upheld.

Apart
from access to the school of choice or behaviour management in the school,
complaints cover a wide range of alleged failures to provide adequate
or appropriate assistance, for example: Auslan signing, note taking, assessment
and examination arrangements, accessible student accommodation and/or
personal care, and the recognition of and adjustment for certain learning
disabilities. Some research conducted last year suggested that teasing
and bullying of students with disabilities by other students and by staff
was a significant experience for many, but although harassment in education
is covered by the DDA I have received almost no complaints about this.

Most
of those matters which proceed to a full investigation, which are found
to have some substance, and which do not involve State departments of
education will settle by conciliation. Conciliations in the disability
area are not only focused on a financial remedy: although this may be
a part of the desired outcome, people who have disabilities tend also
to be focused on achieving policy change and staff training, and on receiving
an apology.

They
may also require the institution to develop and lodge with the Commission
an Action Plan detailing the steps that will be taken in the future to
avoid discrimination on the ground of disability. Many of the 40 or so
Action Plans I have received are from education providers - though not
all are the result of a complaint.

Drawing
lines in the sand

In
my discussions with education providers I hear another set of problems.
These involve staff stress as more and more responsibilities are given
to teachers, some of which it could be argued are not a part of teaching.
Is it appropriate that teachers are responsible for the administration
of psychotropic drugs? For treating diabetic, allergic or other medical
emergencies? For taking an incontinent child to the toilet several times
a day? For feeding a child through a gastric stoma? For assisting a child
with a catheter? Not to mention in the near future placing children in
employment! These are real issues of reasonableness and unjustifiable
hardship which have as yet been barely tested by anti-discrimination legislation,
and which are part of the whole picture that must be considered in any
single complaint. These issues must be addressed in the development of
a disability Standard in education because such a Standard will set the
maximum that can be demanded as well as the minimum that must be provided:
in a Standard these two become, effectively, one. Compliance with the
Standard in the relevant area of a complaint would be deemed to be compliance
with the DDA for that complaint.

When
I addressed the Australian Association of Special Education last year
I encouraged teachers, and their representative associations, to begin
to draw the line in the sand that states, as far as they are able, what
it is reasonable to expect from a teacher. People who have disabilities
will then draw another line, and unions, parent groups and other interested
parties will all draw their lines. Only when those lines are drawn, when
the various parties can see the edges of each others' positions, can we
hope to achieve some negotiated outcome, some shared expectation. My experience
of teachers is that they will bend and yield as far as possible, and then
a little further, so highly do they value the opportunity for education
for every child. They are unwilling to draw any line until the stress
is so great that eventually a line much more limited that necessary is
laid out as the not negotiable maximum, the ditch to die in. This is not
the way to create a sensible, workable Standard of any kind. All parties
must work towards the creation of a Standard that ensures the level of
access to education demanded by the DDA, taking into account reasonableness
and unjustifiable hardship, without either diminishing the rights of students
with disabilities or expanding the responsibilities of providers.

This
process of negotiation and eventual agreement has already been successful
in the development of a draft Disability Standard for accessible public
transport. The draft Standard has been accepted in principle by all relevant
Ministers for Transport, and this decision was reconfirmed at their meeting
in May this year. It will not surprise you to learn that the question
of school buses has loomed large, particularly the idea that these should
be exempted from the Act. My view is that the unjustifiable hardship provisions
are sufficient protection for operators who may face a complaint.

Access
to education premises: Advisory notes

One
of the major issues for students with physical and sensory disabilities
is simple access to the premises where the educational enterprise is being
carried out, and where people are employed or seeking employment. New
school and other educational facilities now also have multiple uses outside
of ordinary school hours, for which they need to be accessible.

Another
Queensland Anti-Discrimination Tribunal finding, in late 1994, was that
compliance with the minimal access requirements of the Building Code of
Australia was not compliance with the QADA (nor, by implication, with
the DDA) and that the new Queensland Convention Centre should be made
accessible at its front or principal entrance. This decision created great
consternation in the building industry, such that the BCA is now under
review to produce a Code that is more consistent with the DDA. A draft
document is currently being circulated for comment, along with a set of
Advisory Notes recently issued by the Commission under its guideline making
function. These Advisory Notes set out the issues that designers, builders,
owners and managers of premises should consider when attempting to meet
their responsibilities under the DDA.

An
access to premises Standard is not possible under the DDA as it now stands
(though I have made submissions to two Attorneys-General for amendment
to the Act): the best that can be done at present is the provision of
as much information as possible so those with responsibilities can make
informed decisions - decisions they are ready and able to defend in the
event of a complaint.

Exemption
Application

The
Lutheran Church of Australia, Queensland District, operates a non-government
school system, one aim of which is to provide a school environment free
from discrimination. They were concerned that in undertaking special assessments
to provide for the needs of students with disabilities, their schools
may be open to complaint on the ground that the assessments are treatment
different from that accorded to other students, and therefore discriminatory.
They asked the Commission to approve a process for resolving disputes
with the final stage of the process being an application for exemption
from the DDA if all else failed.

The
Commission accepted my recommendation and reasons for refusing the application.
I pointed out that however reasonable the proposed process may be, it
was a matter entirely for the applicants to decide and the Commission
had no power to approve it. Further, there was no scope for the Commission
to say that a person could or could not make an application for an exemption.
Such applications were provided for by the DDA and had to be treated on
their merits once received.

The
application, and my draft reasons, were subjected to consultation with
interested parties according to Commission policy adopted at my recommendation
three years ago. It was this application which, though not granted, alerted
us to the problem with s22 that I referred to earlier and prompted my
submission to the Attorney-General. The applicants have accepted the outcome
of their application, and the process has been very useful for all concerned.

This
decision and reasons, like so much material from the Disability Discrimination
Policy Unit, is accessible to all in a discrimination free format on our
home page on the World Wide Web.

Conclusion

As
most of you will be aware, the Commission has recently sustained massive
cuts to our budget such that we are currently planning the retrenchment
of at least a third of our staff, with all that means in contraction of
activity.

The
government has also made clear its preference for removal of specialised
Commissioners and their replacement with a much smaller Commission comprised
of a President and an as yet undisclosed number of generalist Commissioners
- the actual proposal is not yet known to us.

It
is in this context that I make my final remarks:

As
you can see, even in this one area of disability discrimination in education,
there has been much activity and thought occurring over the last four
and a half years. When you add to this the other areas covered by the
DDA, this is clearly a complex and important piece of legislation. The
right to belong - in a particular school, or in our community in general
- is not one that can yet be taken for granted by people who have disabilities.

Despite
disability being included in most State anti-discrimination legislation
it was only when the DDA and a designated Commissioner came into being
at the federal level that significant national activity took place to
ensure the rights of people who have disabilities to be full and equal
citizens of Australia.

In
the brief life of the federal Act real movement has occurred in access
to public transportation, to premises and the built environment, to employment,
education, insurance, Commonwealth government laws and programs, and in
other significant areas. Even major corporations such as banks, insurance
companies and leading retailers have begun to get to grips with the issues
involved in ceasing unlawfully and unnecessarily to exclude people who
have disabilities.

For
almost the whole life of Australia since European settlement, people who
have disabilities have been dealt with as recipients of charity or government
welfare. The perception of people with disabilities only as such recipients
is embedded still in the general Australian imagination and understanding.
Just over four years of an Act which has as its aim and objective the
recognition of the equality under the law of people who have disabilities
has not been enough to redress that traditional and limiting perception
which still beleaguers and frustrates the legitimate aspirations of people
with disabilities to participation in, enjoyment of and contribution to
the ordinary life of Australia.

Having
a specialised Disability Discrimination Act and a designated Commissioner
has enabled people who have disabilities more confidently to exercise
their rights as citizens and realise their value as equal Australians
belonging among their fellow Australians. It is vitally important that
the impetus be continued, and I am confident that future Disability Discrimination
Commissioners will be tireless in pursuing the objectives of the Act.

This
participation in the civic life of the nation is something that people
who have disabilities will not readily relinquish.