аЯрЁБс>ўџ *+ўџџџ)џџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџмЅhcр e€2CЏPЋ?†NXNXXOXOXOXOXOlOlOlOlOlO xO ‚OlOКOhžOЂOИOИOИOИOИOИOИOКOКOКOКOКOКO"PXzP5КOXOИO"#ИOИOИOИOКOИOXOXOИOžOИOИOИOИOXOИOXOИOИO0"0*СlOlOXOXOXOXOИOИOИOИONational Council on Intellectual Disability HREOC Summit DDA - a tool of change? December 4 & 5, 2001 DDA – Focus or distraction? Is the funding of a complaint and conciliation structure the best use of limited government resources to change disability discrimination in our society? Consider that UNESCO has stated that the inclusion of children with disabilities in schools is the most effective means for combating discrimination. Is putting resources into inclusive education a much better use of resources? Given the fact that the DDA and Standards require a complaint to be made and won in a cost environment often against large corporate or government authorities who have access to large legal and financial resources, is this the most potent method for people with disability to enjoy living in a society free of discrimination? Elimination of discrimination of people with intellectual disability in employment People with intellectual disability are currently subject to systemic discrimination in employment. The terms and conditions of many thousands of employees with intellectual disability are well below the safety net wage and conditions enjoyed by employees without disability. NCID are also aware that employees with intellectual disability are at a distinct disadvantage in the negotiation of workplace agreements under the Workplace Relations Act 1996. The nature of intellectual disability heightens the vulnerability of employees to abuse, exploitation and discrimination in the negotiation of terms and conditions. NCID is particularly concerned with the issue of pro-rata award based wages. NCID is currently witnessing the legitimisation of wage assessment tools that discriminate and exploit people with disability. Our concern is increased by the fact that many assessment tools are being negotiated as part of workplace agreements where employees do not have the capacity to understand or negotiate powerfully enough to protect their rights. NCID was particularly concerned by the Disability Discrimination Amendment Regulations 1999 (No. 1) which were passed by the Commonwealth Parliament. This permitted sections of the SA industrial relations act to be prescribed under section 47 of the Act. This provided a legitimisation of employer practices that essentially exclude employees with intellectual disability in sheltered workshops from the rights of other employees and the responsibilities of employers to comply with the SA Act. This legislative act was mean spirited and an affront to the rights of people with disability. NCID would like to see the following developments in addressing the discrimination of people with intellectual disability in employment. A DDA Employment Standard An employment standard would provide a safeguard to this vulnerable population of employees. It would provide a clarification of the obligation of employers to ensure that workplaces and agreements were non discriminatory in terms of disability. It would provide guidance to the Australian Industrial Relations Commission (AIRC) which has a statutory obligation to ensure that workplace agreements meet the principles and objectives of the Disability Discrimination Act 1992. It would provide guidance to Commonwealth funded employment assistance agencies who have an obligation in their funding contracts to ensure compliance with the Disability Discrimination Act 1992. Compliance with the object, principles and objectives with the Disability Services Act This priority is also linked to the area of disability discrimination in relation to Commonwealth laws and programs, which is discussed below. People with intellectual disability are largely dependent on 'specialist' employment assistance to participate in the labour market. NCID is particularly concerned that a large component of organisations that provide 'specialist' employment assistance engage in disability discrimination in employment. It is imperative that such organisations are not in the business of utilising support funding to engage in disability discrimination in employment. There is an urgent need for HREOC to investigate this area of discrimination. Elimination of disability discrimination in education Discrimination of children and adults with intellectual disability in education is systemic. Disability discrimination in education has to date been the source of substantial separation of children with intellectual disability from their peers. International and national research into education indicates that the inclusion of students with disability is the most powerful method to combating discrimination. КкСЯЧщБЈеО growing up together provide opportunities for awareness and tolerance, currently not achievable by a separate or 'apartheid' education system. An objective for NCID is the concept of schools being 'non-discriminatory' where students with disability and their families are welcomed as part of the diversity of the student population. In recent times the international community through UNESCO and Inclusion International have provided leadership in the elimination of discrimination in employment. UNESOC have stated that the inclusion of students with disability in schools is the most powerful method to combating disability discrimination. Inclusive education is for NCID a key to the realizing the human rights of people with intellectual disability, addressing disability discrimination, and providing a sound basis for the development of people with intellectual disability as valued participating members of Australian society. "At the core of inclusive education is the human right to education, pronounced in the Universal Declaration of Human Rights in 1949. Equally important is the right of children not to be discriminated against, stated in Article 2 of the Convention on the Right of the Child (UN, 1989). A logical consequence of this right is that all children have the right to receive the kind of education that does not discriminate on grounds of disability, ethnicity, religion, language, gender, capabilities, and so on. While there are also very important human, economic, social and political reasons for pursuing a policy and approach of inclusive education, it is also a means of bringing about personal development and building relationships among individuals, groups and nations. The Salamanca Statement and Framework for Action (1994) asserts that: “Regular schools with inclusive orientation are the most effective means of combating discrimination, creating welcoming communities, building an inclusive society and achieving education for all.” (Salamanca Statement, Art. 2)" (UNESCO: Overcoming Exclusion through Inclusive Approaches in Education. A Challenge And A Vision. Conceptual Paper for the Education Sector. 2001) NCID is particularly interested with the principle and practice of 'inclusion'. Inclusion is concerned with providing students with disability the opportunity to grow and learn together with students without disabilities in the same schools and classrooms. "Inclusive education as an approach seeks to address the learning needs of all children, youth and adults with a specific focus on those who are vulnerable to marginalisation and exclusion. The principle of inclusive education was adopted at the Salamanca World Conference on Special Needs Education (UNESCO, 1994) and was restated at the Dakar World Education Forum (2000). Inclusive education means that “… schools should accommodate all children regardless of their physical, intellectual, social, emotional, linguistic or other conditions. This should include disabled and gifted children, street and working children, children from remote or nomadic populations, children from linguistic, ethnic or cultural minorities and children from other disadvantaged or marginalised areas or groups.” (The Salamanca Statement and Framework for Action on Special Needs Education, para 3)." (UNESCO: Overcoming Exclusion through Inclusive Approaches in Education. A Challenge And A Vision. Conceptual Paper for the Education Sector. 2001) NCID is working to support the choice of students and thief families to be included in regular schools and classrooms. NCID is also supporting the work of Inclusion National to develop concepts of 'welcoming schools, evaluation of the success of inclusion, and creating a culture of inclusion within schools and policy makers. NCID would like to particularly commend the State of Tasmania for its recent review and action on moving its education system to one that embraces diversity and the inclusion of students with disability. There is still much to be done. Many states still have enrollment, assessment and placement policies that seek to separate, discriminate and take the choice of inclusion away from students and their families. The Disability Discrimination Amendment Regulations 1999 (No. 1) which was passed by the Commonwealth Parliament allowed the State of SA to prescribe elements of its Education Act from complaint under the Act. This action by the Commonwealth was mean spirited and aimed to legitimise discriminatory practices. Priorities include: A DDA Education Standard Much progress is currently being achieved with this objective. The current draft standard is progressing well and will provide an indication of the obligations under the DDA. The disability sector will have to consider whether it accepts the extension of the defense of unjustifiable hardship beyond that of enrollment. At this point in time, NCID is encouraged by the work of disability sector representatives in ensuring that the draft standard meets the interests of people with disability. Follow the lead of Tasmania There is an urgent need to set up a national education taskforce with all education jurisdictions to consider the development of inclusion practices including issues of budget policy, enrolment policy, curriculum development, advocacy support, assessment, teacher training, etc. Compliance with the draft DDA education standard will require education providers to undertake change and reform to a range of policy areas. It would be proactive of at least government providers to engage in national solutions to common areas of reform. Disability Discrimination Amendment Regulations 1999 (No. 1) which was passed by the Commonwealth Parliament The passing of the Disability Discrimination Act Regulation 1999 (No. 1) was a great disappointment to NCID. This provided a range of state legislation and regulation to be prescribed under section 47 (2). People with intellectual disability in SA are subject to industrial relations law that permits congregate employers (sheltered workshops) to seek exemption for employer obligations. This means that it is okay to exploit employees with intellectual disability. The prescribing of this law is mean spirited and essentially makes legal the exploitation of employees with intellectual disability. People with disability are also subject to statutory powers in SA which permits the Director General of education to dictate which school a student with disability will attend. The prescription of this piece of law was directed at providing a barrier to the choice of inclusion by students and families. The prescribing of these laws were an abuse of the intent of 47 (2) of the Act which allows for 'discrimination that is acceptable'. There were some laws and regulations that did fit this intent. However, it is not acceptable that people with intellectual disability are denied the right to employment conditions comparable to other employees. And it is not acceptable to deny students with intellectual disability access to regular schools and classrooms. NCID seeks that this regulatory law be repealed. Complaint Handling If the DDA is to be a tool of change then the complaint handling system requires to achieve resolution quickly. Many people with intellectual disability and their families report lengthy processes that span up to 3 years and more before a resolution is determined. This has been highlighted in the area of disability discrimination in education where a child's development is undermined by lengthy absences from school. The consultation of the disability sector for the DDA education standard signaled that this area requires reform. The 'Way Forward" document of the DDA Standards Project recommended the development of an alternative complaints process for complaints of discrimination in education. What is HREOC doing to address this issue? Is an alternative or complementary complaint system required? Accommodation The quality of accommodation support to people with intellectual disability continues to raise issues of basic human rights violations and the spirit of Disability Service Standards. Issues of institutionalisation, large congregate care, boarding houses, physical and sexual abuse, etc remain 'big' issues requiring resolution. It is particularly worrisome that some case law is indicating that States still have the choice to deliver accommodation services in an institutional setting (Colyer v State of Victoria). There is a need to begin development of a DDA standard on accommodation in which principles of maximum integration requirements could be developed. Commonwealth Laws and Programs NCID is particularly interested in the development of a Standard for Commonwealth Laws and Programs for people with disability. NCID is currently witnessing the administration of Commonwealth laws that give credibility to acts of discrimination. In our view the administration of the Disability Services Act (DSA) is giving legitimacy to systemic discrimination in employment of people with intellectual disability. There is a responsibility of the Commonwealth to ensure that it is not aiding and abetting disability discrimination. Despite the knowledge by the Commonwealth the DSA continues to provide funding to organisations that exploit people with intellectual disability. The development of a DDA standard in this area would provide clarity on the obligations of the administration of such laws by the Commonwealth. Special Measures NCID is concerned at the recent use of 'Special Measures" clause in the area of discrimination law. Special Measures is section 45 of the DDA and has its counterparts in anti discrimination legislation in other jurisdictions. Special Measure clauses are essentially intended to ensure that special needs and affirmative action programs can exist without fear of attack by persons outside the relevant class based on their exclusion from the program. "We now have the unfortunate situation where a provision which was intended to facilitate the needs and promote equal opportunities for people with disability and should have thus been construed beneficially to the interests of these people, has in fact been construed as limiting their rights relative to their non-disabled counterparts." There is an urgent need to amend the special measure clause to make it plain that the provisions are to facilitate affirmative action and special needs programs and not to limit the rights of people with disability. The comparative test for discrimination requires that a fair basis of comparison be available with services provided to persons without disability. This traditional comparative approach to discrimination has its shortcomings when dealing with special needs and affirmative action programs. We want HREOC to recommend to the Commonwealth Government that the DDA be amended to include a maximum integration clause. Criminal Justice System It has been estimated that 20% of people in prisons have intellectual disability. (Crime Prevention through Social Supports. NSW Law and Justice Committee, 2000, p. 160). This is currently an area of investigation and research by NCID. We are looking at the issue of arrests, legal representation, legal competence, court participation etc. A number of questions are emerging. What obligations do the police, courts, prisons have under the DDA. If there are obligations what action plans or other strategies are currently being pursued to address disability discrimination in the criminal justice system. The DDA as a Tool for Change. HREOC Summit. December 4 & 5 2001 Paper by National Council on Intellectual Disability  PAGE 8 ‘ФЁ™Єа/Ѕр=ІЇЈ Љ Њhi…QЄ] _ Є Н dЛa—ьГЖТ"љ&')")9*<+Љ+81K1y4‡4&7E7†:—:‰>Š>*@E@ЋB$C%C+C,C-C.C/C1C2CSCќњіњњђњяњњњэњэњъњчњњњњњќњќњќњхнйнднхњвu PacPcuDPcc]bU^^]^]cU]^]U]/,9Rghi…!"  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