The DDA and its impact in the area of Education
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Graeme Innes Pathways Conference |
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Introduction
May I commence by acknowledging the traditional owners of the land on which we meet today.
Perhaps it's just because I'm getting older, but I increasingly have the feeling that Australia is becoming a more sentimental and nostalgic nation. We have a Prime Minister whose vision for us is to be relaxed and comfortable. And many of us spent last night - after watching the final stages of the Australian cricket juggernaut's comprehensive winning of the ashes for the eighth time in a row - watch a bunch of old blokes who used to be rock and roll singers showing us that it was a long way to the top. Haven't we got anything more exciting to do than that?
But for people with disabilities it is a long way to the top. A long way, that is, to achieve equality within the Australian community. The DDA, passed by our Parliament ten years ago on 15 October last, is one of the tools which will help us get there. And all of you know, as education practitioners, that you are assisting to provide many of the building blocks to move people with disabilities along in that journey.
My role today is to talk to you about the progress that has been achieved during the last year or two by use of the DDA. Others at this conference will report on various areas where the education system has contributed to equality for Australians with disabilities. I want to focus on broad DDA compliance, and talk about DDA Education Standards, Purvis v State of NSW, and the forum which the Human Rights Commission ran this year on provision of materials for tertiary students with a print disability.
Broad compliance
We do not have available anything like a comprehensive or scientific evaluation of progress, even in a specific area such as education. But we do know that what has been achieved through the DDA in the education area has been the subject of some debate.
Here are some comments from a paper for the disability community's Disability Standards Project in 1997:
"Compliance with the DDA in the tertiary sector is patchy at best. There are some outstanding examples of tertiary institutions that accommodate students with disabilities in an exceptional manner. However, these institutions are in the minority and have to stretch their resources as more and more students with disabilities gravitate to them. This gravitation takes place because other tertiary institutions discourage enrollment or continued participation by students with disabilities."
That was five years ago, but I think it is still fairly representative of the situation, both with regard to primary and high school, as well as the tafe and tertiary sector. The decision in Finney v The Hills Grammar School, where damages were awarded against a school which rejected an application for enrollment from a girl with spinabifida, demonstrates that at that time (1999) participation of people with disabilities in the general education sector was not universally accepted.
Since then we have some encouraging pieces of evidence about Australia's tertiary education sector, although we also have some continuing questions. More than half of Australia's universities have provided the Commission with an Action Plan under the Disability Discrimination Act. These action plans vary from high level frameworks for further planning to quite detailed action lists with specific timelines. The best action plans are those which emerge from genuine processes between an organization and the constituency it serves, rather than being an off the shelf model imposed or copied from outside. Also, any plan is better if it does have some action in it, and is not just all plan.
DDA standards
Work has continued on the development of a DDA Standard in the area of education. Unlike the areas of transport and access to premises, this document does not set out time-lines for making infrastructure and rolling stock accessible, or determine performance requirements for a building to be accessible in the same way as the Building Code of Australia. What the draft does try to do is set out some broad policy guidelines which a assist education providers, as well as adults and children with disabilities seeking education, to be clearer about what does and does not constitute discrimination under the DDA. The document tries to fill in the framework set by the current legislation, and has the same aims of transport and building standards - to provide clarity and certainty for all.
In the Commission's view, the document does not extend the application of the DDA, or of the State and Territory legislation which has applied in most places in Australia for at least as long as the DDA, and in some cases for up to twice as long. In fact, in one particular area, that is the extent to which unjustifiable hardship applies, it limits the current DDA coverage. At present, the unjustifiable hardship provision in the DDA only applies to enrollment, but the Standard applies it across the board. This is correcting what in my view was an original drafting error, but it is narrowing the application of the Act.
However, despite this approach, a number of State government representatives have opposed the development of these standards. None of them have been as honest as the private school sector, which has openly indicated its opposition. Rather they have found reasons to delay and change the draft again and again, usually either just before or actually at meetings of the working group, causing maximum delay. The main offenders sit just north and west of a recent labor landslide, and I am not convinced that their bureaucrats have always acted with the support of their Ministers.
The worst example of this delaying tactic was when the representatives of a State whose Parliament has a view of the same harbour that we have today turned up at a meeting two weeks before the final draft was to go to Ministers with a legal advice asserting - quite wrongly - that the Draft Standards went much further than the current DDA, and that they might even breach the Australian constitution.
This demonstration of bad faith from one of the negotiating parties helps no-one. These States know that they are currently not complying both with the DDA and their own legislation, and are worried that DDA Standards will just highlight this fact. It's about time they concentrated on getting their own houses in order, rather than continuing the uncertainty in the education area for all Australians. I hope that the Commonwealth will take a strong stand on this issue early next year, and work with the disability sector and the other States to move towards release of a draft Standard.
Purvis case
Many of you would be aware of the decision in Purvis v State of NSW. In this decision, the Commission's finding that challenging behaviour was part of the complainant's particular disability, and that his exclusion from South Grafton High School therefore constituted direct discrimination, was overturned by the Federal Court and the full Federal court. However, the High Court has just granted leave to the complainant to appeal this decision, and the appeal will be heard in the first half of next year. The Commission is also a party to this action.
The Comments of the High Court Judges in granting this leave suggest that they were not all in accord with the way the Federal Court made its decision, so we may get some new law from the highest possible court in the education area quite soon. The Commission will keep people advised of the hearing and the decision on its website and there is a place on this site where you can subscribe for regular updates. So watch this space.
Access to tertiary materials
There are probably many things for which US then Vice-President Al Gore won't be remembered, but he will certainly earn a place in history as the originator of the phrase "information superhighway". Some of us like it, some of us don't, but we all now live within sight, sound or touch of it, and that highway is bringing more information into our lives than ever before. But, like most highways, the information superhighway has come at a price: we have information, but we also have information overload; we have more spam than Monty Python could ever have imagined; and some sections of our society continue to experience information traffic snarls.
The would-be information prophets told us that we'd son have the paperless office, and that print books would soon be housed only in museums (where, presumably, they'd charge the people a dollar and a half just to see 'em, to paraphrase a Joanie Mitchell song). Like most prophets, they were wrong, of course: the information highway has given us more print than ever before in human history, along with all the other newer technologies such as the Internet and mobile phones. Having a print disability today is far more challenging than it was in the days of papyrus and hieroglyphics.
With each new revolution in the development of our civilisation, people with disabilities have had to develop new strategies for turning challenges into opportunities. In many respects, the forum on accessible tertiary materials that the Commission organised earlier this year is part of this ongoing process of adapting to change. The higher education sector is changing rapidly; the number of students with a print disability is increasing, but so are the costs of producing materials in braille, large print, e-text, and other alternative formats; the range and complexity of course materials is increasing, and students are expected to be computer-literate enough to send email, participate in online conferences, search electronic databases, and download lecture notes from the Web. The result is that many university students with a print disability have experienced frustrating traffic congestion and dead ends on the information superhighway.
Early this year, the Commission was asked by advocacy groups and students
themselves to investigate ways of improving the situation. We felt that
the most effective way forward was to convene a forum that all Australian
universities would be invited to attend, to initiate the development of
strategies for providing curricular materials in accessible formats in
a cost-effective, efficient, and needs-appropriate way.
The forum was held on May 29; approximately 90 people participated, representing
35 of Australia's 39 universities, university librarians, government departments,
publishers, and students. Prior to the forum, on May 28, a session was
held to clarify and discuss copyright legislation and regimes as they
impact on students with a print disability. Most participants in the forum
also attended this session on copyright. In organising the forum, the
Commission received strong support from the Australian Vice-Chancellors'
Committee, and I want to acknowledge their contribution to the forum itself
and also to the work that has taken place as a result.
The forum included the presentation of a number of "perspective papers" that examined relevant issues from a variety of standpoints, including student, academic, disability support staff, and government. These papers are on the HREOC website, along with other background material, including the discussion paper that the Commission wrote to provide an overview of the issues to be discussed. Anyone unfamiliar with the issues would probably find it useful to begin by reading this discussion paper, and then move on to the perspective papers and other materials.
After the various presentations, the forum divided into 5 discussion
groups, each group dealing with a specific topic area:
1. Approaches to Production;
2. Copyright and Publishing;
3. Digital Libraries and the Sharing of Information in Accessible Formats;
4. Sector and Cross-sector Standards and Guidelines
5. University Policies, Practices and Procedures.
Each group was asked to develop recommendations aimed at improving access to curricular materials by students with a print disability. The complete list of recommendations is also available on our website, but I would like to highlight some of the recommendations that we feel are the most significant in terms of the benefits that will flow from their implementation.
A key aspect of providing accessible curricular materials is ensuring that they are produced in a cost-effective and efficient way. Achieving this goal has implications for all sections of what we can think of as the "commodity chain" for accessible-format materials, from a lecturer who writes a set of lecture notes, disability support staff who liaise with lecturers, specialist producers of accessible-format material, and, of course, students themselves. To ensure that there is a unified and consistent approach to the production chain as a whole, it was recommended by the forum that a working group be established to examine production-related issues, including the current and projected demand for accessible-format materials, the extent of production that is occurring both within the sector itself and via outsourcing to specialist producers, and ways of facilitating the sharing of existing material and preventing unnecessary duplication.
A second key group of recommendations that was developed by the forum relates to publishing and copyright. One of the most exciting opportunities that the information superhighway makes possible is the use of source files from publishers as the basis for producing accessible-format versions of books. This would substantially reduce the time and cost of production, since there would be no need to scan the print book or type it into the computer. The forum's recommendations in this area envisage the creation of a national clearing-house of publishers' files to which producers would have access. This is clearly a medium- to long-term project, but it is one that will have significant benefits for students.
An associated recommendation calls for greater discussion of the ways in which copyright laws and regulations can be used to enhance, rather than restrict, access to materials by students with a print disability. Continuing my earlier metaphor, the copyright stretch of the information superhighway is full of deep potholes, and our task is to re-tar the surface so that people with a print disability don't become stranded.
The forum provided a unique opportunity for the higher education sector and the disability community to share their expertise at the beginning of a process of achieving systemic change through consensus. The recommendations were directed towards achieving greater access by improving current processes, and by opening up mainstream channels. For the forum to be effective, however, requires ongoing work by the sector. Shortly after the forum, the Commission held discussions with AVCC to decide how best to go about the task of implementing the forum's recommendations. We decided to establish a Steering Committee on Accessible Curricular Materials for Universities. The main role of this committee is to develop strategies for implementing the forum recommendations. The committee is chaired by Prof. Sue Johnston, who is the Pro-Vice-Chancellor (Teaching and Learning) and the University of Tasmania; Kerri Allen, who is Chair of the University of South Australia's Disability Advisory Group, is the other university representative; other members of the committee are AVCC, Blind Citizens Australia, Department of Education, Science and Training, the Tertiary Education Disability Council of Australia (TEDCA), and the Commission.
The first meeting of the Steering Committee was held in Sydney on November 1, and the next meeting has been scheduled for February 18 next year. Notes from the meeting will shortly be available on the Commission's website, but some of the key outcomes of the meeting are: first, a working group has been established to consider the forum recommendations relating to production; second, the Commission will be following up with the publishing and copyright sector to establish a process for dealing with the recommendations in these areas; third, TEDCA will be compiling a register of current producers of accessible-format curricular material for university students.
The Commission believes that the forum and the work that is taking place as a result will, over time, lead to greater access and equity for university students with a print disability. Now is the ideal time for all universities to review their individual and collective policies, practices and procedures to ensure that they complement and support this work.
Conclusions
I don't think it would be a good idea to spend all of the Commission's limited budget on trying to gain a fully scientific evaluation of what has been achieved over the first decade of the DDA - we could spend years trying to count ramps installed, pages published in accessible forms and so on. But as in any activity, in the business of seeking to eliminate disability discrimination, it is important that we do have some idea of what an acceptable degree of success would look like, and some idea of whether we are getting there.
In October of this year, HREOC announced that for the tenth anniversary of the commencement of the Disability Discrimination Act (March 2003), we will be releasing a publication on achievements so far: achievements in moving towards equal opportunity and access for people with disabilities. This publication will include information on outcomes where HREOC has been directly involved, through the complaint process and also through other avenues provided by the legislation, such as standards development, exemption processes and public inquiries. But of course, a small national human rights commission cannot be involved in every activity across Australia, or even know about these activities, unless people tell us about them. We cannot and do not know about every issue still to be addressed, without input from people closer to the action - as people with disabilities or as service providers or as both. I would very much welcome any views and information you have on where we have got to so far. I would also like to receive views on where we need to go over the next ten years in eliminating discrimination and achieving equality - both in terms of issues to address and in terms of the right processes for addressing them.
So to return to my introduction: for Col Joye and others it was a long
way to the top, and more importantly a long time since they've been there.
For people with disabilities we haven't made it yet. But let's dream of
the day in 20 years time when nostalgic tv program makers will be airing
specials on pathways conferences, and the contribution those attending
them made to equality or reaching the top for people with disabilities.
This may only be a dream, but you know that dreams are made in heaven,
and if there's a rock and roll heaven, then the inclusion of people with
disabilities would make one hell of a band.
