Pathways 2010:  It’s a long way to the top if you want an equal role

Brisbane 1 December 2010

Graeme Innes, Disability Discrimination Commissioner

Introduction

I acknowledge the traditional owners of the land on which we meet, and I pay my respects to their elders past and present.

When I was a student at Ashfield Boys High School in the 1970s, people with a visible disability in mainstream classes were not very common.

Almost certainly, there were a fair number of students with unrecognised learning disabilities.

But people with disability for the most part were either invisible within mainstream education, or invisible because they were excluded and segregated off somewhere else.

On some levels, though, the 1970s were a time of increasing diversity in Australian society and increasing recognition of that diversity.

1975 saw the first Federal discrimination law, the Racial Discrimination Act.

This was a major step in what remains a continuing pathway towards equal participation and opportunity within Australian society for people of diverse abilities and backgrounds – including people with disabilities, women and girls, Indigenous people and those who more recently have come across the seas.

Just ahead of me at Ashfield Boys High in the 1970s, there were some migrant boys who had grown up in what was then a migrant hostel at Villawood:  Angus and Malcolm Young.

Angus has been known to wear his Ashfield uniform on stage with AC/DC.

I usually don’t go that far in celebrating my old school, although I did think about it for today.

But I have spoken before about my appreciation for what education has done for me.

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.

Equal opportunity for people with disability is still very much a work in progress. As AC/DC might have said, it’s a long way to the top if you want an equal role.

The 1980s saw disability included in anti discrimination laws in most States (the rest followed in the 1990s). But there was uncertain and uneven progress towards equality and inclusion in education, and a distinct lack of progress in other important and related areas.

Some of you may recall a book edited by Robert Slee in 1993 with the poignant title “Is there a desk with my name on it”. Too often, of course, the answer still was, no.

Early in their career AC/DC gave us their own distinctive version of a call for recognition and equal participation in all aspects of student life, with “Can I sit next to you girl?”.  The answer might have been “no” a few times there too of course.

Discrimination law: hits and memories

1993 was the year the federal Disability Discrimination Act commenced operation. 

That same year, AC/DC had a song called “Big Gun” on the soundtrack of the film “Terminator 2”. You know, the one where Arnold Schwarzenegger arrives heavily armed with an objective of protecting the child who will be the leader of the future.

The DDA had a definite objective too: the objective of elimination of disability discrimination – in education and in other areas including employment.

The DDA didn’t come along as the Terminator of discrimination, with a big gun or sophisticated new weapons from the future to achieve its objectives.



Most of the DDA’s features were similar to those of discrimination laws which were already in place in NSW, Victoria, South Australia, Western Australia, the A.C.T. and Queensland and which were soon to follow in Tasmania and the N.T.

Those features included

• a broad definition of disability
• a prohibition of discrimination in quite general terms rather than a high level of detail in specifying what actions are required
• provision for complaints by or on behalf of people aggrieved by discrimination
• a major focus on conciliation as a means of resolving complaints.

The conciliation process did prove very successful in resolving complaints. There are summaries going back to 1993 on the Commission’s website of a selection of successful conciliation outcomes including outcomes on education.

Where resolution by conciliation cannot be achieved the DDA provided, at first, for consideration by the Commission in tribunal mode. Later this was altered to provide only for hearing by the Federal Court.

One case which attracted considerable publicity was one where I sat as the tribunal, Scarlett Finney’s case. I’d like of course to claim that the decision was innovative and technically complex. But really it came down to the point that a young girl should not be excluded from her chosen school just because of her disability. About as simple as a 1970s AC/DC riff really, even if it’s a riff we still need to hear. 



A case which we have to assume was not quite so simple, because it took the Full Federal Court, to settle it, was Hurst v Queensland. As some of you may recall, at first instance in the Federal Court this case was heard together with another case, Devlin v Queensland.

Both cases were about Deaf students who argued they were being discriminated against by lack of access to full time Auslan interpreting.

At the initial hearing, young Mr Devlin succeeded in his claim of discrimination. He was performing at below average level and there was evidence that greater access to Auslan instruction would assist. Ms Hurst however was unsuccessful at first, on the basis that she was such a capable student that she was coping in class and in fact performing at above average level even without Auslan. 

The Full Federal Court however had more to say on whether this was enough. They said:

A hearing impaired child may well be able to keep up with the rest of the class, or "cope", without Auslan. However, that child may still be seriously disadvantaged if deprived of the opportunity to reach his or her full potential and, perhaps, to excel.

Inclusion and the pursuit of excellence

My predecessor as Disability Discrimination Commissioner, the late Elizabeth Hastings, spoke a number of times about her unease with the language of “inclusion”. To her it suggested being allowed in by grace and favour, and that being inside rather than outside was all that was up for discussion, rather than the full spectrum of opportunity being available, including excellence and leadership.

Not of course that she thought that equality only mattered for the sake of those who might make it all the way to the top, the “famous cripples” as she put it:

We do not all need to be Stephen Hawking or Beethoven or Helen Keller, or Einstein with the attention deficit disorder now attributed to him, for our contribution to matter and be worth having.

Of course I agree with that too. But the opportunity to excel and not just to be included is still something important to ensure.

Stephen Hawking of course is a world famous physicist; a person with significant disability resulting from motor neurone disease; and a successor to Isaac Newton in the chair as Lucasian Professor of Mathematics at Cambridge University.  This chair which is perhaps the most prestigious academic appointment in the world has been held by just 19 people to date, and at least 4 of them including Hawking have had a significant disability. That's strikingly close to the 20% of the population generally estimated as having a disability.

• Charles Babbage held Newton and Hawking's chair in the 19th century. Among many other attainments he basically invented the concept of the computer. He also had a depressive illness, and with a number of friends he founded a group called “the extractors” pledged to rescuing any member should any of them be committed to the mental institutions of the day.
• Another one of Newton’s successors, Paul Dirac, was central to the development of quantum physics. He also seems to have had an autistic disorder.
• Newton’s immediate successor, Nicholas Saunderson, continued Newton’s work on optics and wrote an 800 page mathematics textbook. He was also blind.

This last instance is particularly striking for me given that in the 1970s it wasn’t possible for blind students like me to do HSC level science.

Moving forward?

Despite that depressing instance of moving backwards since the 1700s, hopefully we have for the most part been moving forward in the 17 years of operation of the DDA so far.

The key word there, though, is “hopefully”.

Because the truth is that, at the least, we at the Commission do not know anywhere near adequately where we are at on the pathway to elimination of discrimination.

We know about the level of success we have in resolving complaints and we have quite good measures of satisfaction of participants in the complaint process.

It is clear though that complaints are only at best a very partial picture of what is going on. Around 100 complaints a year are made under the DDA 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.

This is obviously only a very small sample, 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.

We really do not know at all well what level of success the DDA and equivalent State and Territory legislation is having in promoting systemic change and achieving equality of opportunity in education.

On this basis I have to say I seriously considered whether I would have enough to say to justify accepting this invitation and taking time in your program. Obviously, since I am here, I did decide in the end that it was worth us talking together about exactly that: what do we know between us about where we are; and what is the pathway forward.

I want to talk about those things in the context of some related processes of review and policy development:

• the review of the Disability Standards for Education which is now commencing
• reporting by Australia under the Convention on the Rights of Persons with Disabilities
• and the Draft National Disability Strategy announced by the Prime Minister during the recent election.

Review of the Disability Standards for Education

I said earlier that most features of the DDA were similar to those of pre-existing discrimination laws, including relying on very general definitions of discrimination. The exception to that of course was the provision for making of Disability Standards:

• Disability Standards for Accessible Public Transport which came into effect  in 2002;
• Disability Standards for Access to Premises are due to come into effect in 2011; and
• the Disability Standards for Education came into effect in 2005

Initially there was considerable concern in the disability community and in particular among some discrimination lawyers that standards would undermine existing rights.

There was even a paper released on this theme with the title “Dirty Deeds Done Dirt Cheap”.

More recently though the concern has been about whether the standards are having the impact they were intended to have.

The Transport Standards still have much of their work left to do but they have clearly contributed to progress on a very large scale.

The Transport and Premises standards contain a mix of specifications and performance requirements. The Education standards concentrate more on setting out principles and processes.

It would be tempting to see Standards as the “big gun” for enforcing the objectives of discrimination law. But it would be misleading.

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.

As I have said before, 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.

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 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 to reduce the need to go through complaint processes to resolve issues and to go through court processes or seek legal advice to find out what the law means. As I have pointed out on some other occasions, the Standards also make irrelevant most of the pre-existing case law on disability discrimination. And a good thing too: considering the complicated and unsatisfactory nature of some of the case law.

Like the other Standards, the Education Standards were produced by co-operative processes between government, sector representatives in the area concerned, and disability community representatives.

For each of the Disability Standards introduced so far there is a requirement built in for review after five years operation to assess their effectiveness and any needs for revision.

The transport standards review was due in 2007, but we are still waiting for release of the final review documents. Clearly, to quote AC/DC again, “I tell you folks, it’s harder than it looks”.

The Education Standards review was delayed by the extended caretaker period around the recent Federal election but I understand that consultations should be kicking off very shortly.

If the standards need improvement in any area, and if they need better supporting measures whether that is access to information or practical resources, that will only happen through input from the people using them.

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

I would urge everyone in the sector to contribute your knowledge and experience towards ensuring that the Standards are the most effective mechanism they can be for achieving equal opportunity in education for people with disability.

DisCo time

The review of the Education Standards will be occurring in a context which has moved on from when the Standards were introduced, in two important respects.

First, since July 2008 Australia has been a party to the Convention on the Rights of Persons with Disabilities – or as my colleagues in the Attorney-General's Department have named it for short, the DisCo.  Moving away a bit from the AC/DC theme there obviously.



I won’t go through every aspect of the Convention here. But it provides far more detail than simply stating the right of people with disability to education. That’s the first sentence of Article 24, but it goes on for 5 paragraphs of important content from there, both on the purposes that an inclusive education system should aim for and a series of policy directions and actions to achieve those purposes:

1. States Parties recognize the right of persons with disabilities to education. With a view to realizing 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 realizing 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;
• 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.

The DisCo makes clear that compliance is not just about having discrimination laws in place. Compliance requires ongoing policy measures and monitoring of progress towards outcomes.

Australia has to report every five years to the international Committee on the Rights of Persons with Disabilities on how we are going in implementing these commitments. As you may have seen, Australia’s own Professor Ron McCallum of Sydney Law School was recently re-elected chair of this Committee.

I would encourage anyone involved in planning, policy and reporting on measures to achieve equal opportunity in education to have a look at the reporting guidelines which the Committee has issued. Along with the Convention itself I think they are among the most practical and useful United Nations documents ever issued.

Of course, like any lawyer I  have a few suggestions of my own for improvement and as people involved one way and another in education perhaps the same will be true for you. I would welcome your feedback on this.

Australia’s draft Initial Report was released for comment earlier this year.

I would describe the draft Australian Initial Report as a good first try rather than as the last word in reporting. I mean no disrespect to my colleagues in Government who prepared it, in my saying that.

First, the draft was just that, a draft issued with an invitation to submit comments and suggestions for improvement. 

Second, as the Attorney-General’s Department website very helpfully points out, it is possible for non-government organisations and others to submit their own information directly to the Committee rather than the Government version of how things are being the only possible version.

Third, although the draft report fairly clearly does not contain all of the information requested in the Committee’s reporting guidelines, I think nonetheless that the report is entitled to state as it does that “This report has been prepared in accordance with the Committee’s Guidelines”.

It’s like saying a student is tracking well against course objectives, has handed in a good first term paper, shows reasonable awareness of areas where substantial improvement is needed and has good prospects of performing well at the end of the year. You don’t say they have failed just because it would be better if they had already passed the course.

The draft report takes up the invitation to approach reporting as part of a forward looking policy process, rather than only as a process of reporting completed actions. It notes that

The Australian and State and Territory Governments are in the process of developing a National Disability Strategy (NDS).  The NDS will help Australia to fulfil its obligations under the Convention by establishing a framework to promote, protect and monitor the implementation of the Convention, as required under article 33(2).  …

The NDS will be released in 2010.  It is intended to be a living document that will be refreshed over its ten year life span against which Australians can assess progress for persons with disability, and will inform Australia’s future reporting under the Convention.

National Disability Strategy

In November 2009 Prime Minister Rudd announced the development of a National Disability Strategy as a central mechanism for implementation of the Convention on the Rights of Persons with Disabilities in Australia.

This will be the first of the major international instruments which has actually had a comprehensive national implementation strategy in Australia.

In July 2010 Prime Minister Gillard released the draft Strategy with a commitment to take it to the Council of Australian Governments for endorsement early in the term of the new Government.

The draft strategy acknowledges that

At present there remains a significant gap between students with disability and those without, notably in the attainment of year 12 or equivalent, vocational education and training qualifications, and participation in university studies.

It quotes the Shut Out report from the National Disability and Carer Council:

Despite education standards drafted under the Disability Discrimination Act, the education system continues to fail to respond to the needs of students with disabilities and, as a result, these students continue to lag behind on a range of attainment indicators

It notes Australian Institute of Health and Welfare figures from 2006 indicating that  



Around 63 per cent of school children with disabilities experienced difficulty fitting in at school

It also notes Australian Bureau of Statistics figures on disparities in completion of levels of education:

In 2003, 29.6 per cent of people aged 15 to 64 years with reported disability had completed Year 12 compared to 49.3 per cent of people without a disability (ABS, 2004). In 2003, 12.7 per cent of people with a disability had completed a bachelor degree or higher compared to 19.7 per cent of people without a disability (ABS, 2004).

 The draft Strategy identifies a range of areas for future action:

• Reduce barriers and simplify access for people with disability to a high quality inclusive education system including early learning, child care, school and further education.
• At the review points of the National Education Agreement, the National Agreement for Skills and Workforce Development, Smarter Schools—Improving Teacher Quality National Partnership and other learning and skills-related National Partnerships, parties agree to consider including strategies, consistent with the National Disability Strategy, and performance indicators to ensure they address the needs of students with disability.
• Develop innovative learning strategies and supports for students with disability which are accessible, reliable and responsive to strengthen their aspirations and enable them to reach their full potential.
• Investigate options for reporting on educational outcomes of students with disability.
• Identify and establish best practice for transition planning and support through all stages of learning and from education to employment.
• Respond to the recommendations of the review of the Disability Standards for Education.
• Ensure the Early Years Learning Framework, Australian Curriculum and national assessment processes incorporate the needs of students with disability within an inclusive education framework.
• Promote leadership development for people with disability.

I think it is fair to say that most of these are correctly described as broad areas for action rather than as specific and measurable actions and targets.

But very importantly there is also a commitment to develop a more detailed implementation plan. People with disability and other key stakeholders are to be involved in this including in setting priorities and in finalising draft indicators for monitoring of progress.

At this point the draft indicators for educational achievement of people with disability

• the proportion of people with disability in mainstream schools.
• The proportion of people aged 19-25 with disability who have attained at least Year 12 or equivalent qualification
• The proportion of people with disability with post-school qualifications.

Measurement of progress in human rights against any objective indicators would of course be a positive move. I am also aware how hard it can be to get agreement across different systems on what should be measured and how to measure it. I do wonder though whether it might not be possible to include a few more indicators than this.

The implementation plan including timelines is to be included in a report  back to COAG at the 12 month point.

While community and disability services Ministers are indicated as having lead responsibility the draft emphasises that it is intended to address mainstream programs and services as well, and roles for Education Ministers are specifically mentioned.

Although the Strategy still awaits COAG endorsement I have been writing to a number of Ministers to suggest that 12 months is not a long time, and that this exam is one where it would be a good idea to start work before the official starting time. I would make the same suggestion to everyone in the education sector.

A pathway forard: a National Disability Insurance Scheme

On one part of the National Disability Strategy, though, the examiners have already said “your time starts now”.

Everyone involved with disability knows that there are extra costs for participating in many areas of life – whether it’s a need for personal assistance, or needing to use taxis instead of cheaper forms of transport, or needing specialised equipment and services. Just having discrimination laws doesn’t make those costs go away. Often they fall on people with disability and their families. Often they go unmet - so that people simply miss out on opportunity and participation, and our society misses out on everyone contributing to their full potential.

So as part of the National Disability Strategy the Productivity Commission has already been asked to examine a national social insurance scheme for disability.

An issues paper has been published, a first round of hearings held and over 600 submissions received.

Unless I have missed them somehow, I have not seen amongst those submissions any specifically from education sector organisations, or any addressing implications in detail of such a scheme for equal opportunity in education. The most I have seen in submissions on this issue is in fact the following paragraph in the Australian Human Rights Commission’s own submission:

An NDIS or similar scheme and institutions administering such a scheme could have major roles in ensuring non-discriminatory access to education including making of reasonable adjustments. These roles could include

• conducting, co-ordinating or funding research on technical and other innovations
• funding for making of adjustments (including human and technological supports) – to people with disability and possibly to educational institutions
• funding or coordinating training
• conducting or funding legal and other advocacy .

I have seen some views in submissions from disability sector organisations that funds from a national disability insurance scheme should not be spent on funding reasonable adjustments – on the basis that these adjustments are already required by law.  I think though that more discussion is needed of this issue. 

Availability of funding changes the location of the legal boundary between what is reasonable and what would involve unjustifiable hardship. I think it is also highly likely that availability of funding would also change the practical boundary between what adjustments and facilities and services are likely to be provided and what are not.

On this and other debates around an NDIS I think that people and organisations in the education sector have important contributions to make.

As indicated on the Productivity Commission website, a draft report is scheduled to be available in February 2011, as the basis for a second round of submissions.

This inquiry is I think potentially at least as important for equal opportunity in education as the DDA and the Disability Standards for Education. Because while dirty deeds might be done dirt cheap, equality requires resources.

It’s still a long way to the top if you want an equal role – but I think the Productivity Commission inquiry offers an important pathway, and I encourage you all to get involved.