Part 1 Preliminary
1.1 Name
of Standards
These
Standards are the Disability Standards
for Education 2005.
1.2 Commencement
These
Standards take effect on the day on which the requirements of subsection
31 (3) or (4) of the Disability
Discrimination Act 1992 are first complied with.
1.3 Objects
The objects of
these Standards are:
(a) to eliminate, as far as possible,
discrimination against persons on the ground of disability in the area of
education and training; and
(b) to ensure, as far as practicable, that
persons with disabilities have the same rights to equality before the law in
the area of education and training as the rest of the community; and
(c) to promote recognition and acceptance within
the community of the principle that persons with disabilities have the same
fundamental rights as the rest of the community.
Note These
are also generally the objects of the Act in relation to education (see section
3 of the Act).
1.4 Definitions
In these
Standards, unless the contrary intention appears:
Act means the Disability
Discrimination Act 1992.
adjustment has the meaning given by section 3.3.
discrimination has a meaning corresponding to the meaning of discriminate.
education provider has the meaning given by section 2.1.
harassment has the meaning given by section 8.1.
prospective student, for an educational institution, means a
person who approaches the institution about seeking admission to, or applying for
enrolment in, the institution.
reasonable, in relation to an adjustment, has the meaning given
by section 3.4.
student means a person enrolled in an educational institution.
victimisation has the meaning given by section 42 of the Act.
Note The
definitions of terms in the Act apply to the Standard, under the Acts Interpretation Act 1901. These
definitions include the following:
associate,
in relation to a person, includes:
(a) a spouse of the person; and
(b) another person who is living with the person
on a genuine domestic basis; and
(c) a relative of the person; and
(d) a carer of the person; and
(e) another person who is in a business, sporting or recreational relationship
with the person.
disability, in relation to a person, means:
(a) total or partial loss of the person’s bodily or mental functions;
or
(b) total or partial loss of a part of the body; or
(c) the presence in the body of organisms causing disease or illness;
or
(d) the presence in the body of organisms capable of causing disease
or illness; or
(e) the malfunction, malformation or disfigurement of a part of the
person’s body; or
(f) a disorder or malfunction that results in the person learning
differently from a person without the disorder or malfunction; or
(g) a disorder, illness or disease that affects a person’s thought
processes, perception of reality, emotions or judgment or that results in
disturbed behaviour;
and includes a disability
that:
(h) presently exists; or
(i) previously existed but no longer exists; or
(j) may exist in the future; or
(k) is imputed to a person.
discriminate has the meaning given by sections 5 to 9 of the Act.
educational authority means a body or person administering an
educational institution.
educational institution means a school, college, university or other
institution at which education or training is provided.
1.5 Who
must comply with the Standards
These Standards
apply to education providers, subject to section 12 of the Act, and have effect
as if they were limited application provisions under that section.
Note 1 Education providers, bound by the Standards, include the following:
(a) preschools, including
kindergartens (but not child-care providers);
(b) schools in the public sector;
(c) schools registered through
school registration authorities in the private sector;
(d) post-compulsory education and training authorities and providers,
including:
(i) State or Territory Training Authorities; and
(ii) public providers that deliver education and training; and
(iii) private training providers, including
business colleges, enterprises and commercial training businesses; and
(iv) community-based not-for-profit providers; and
(v) industry skill centres; and
(vi) Registered Training Organisations and group training providers
that have satisfied the national criteria for provision of services and have
been registered by a State or Territory training authority;
(e) higher education providers, including:
(i) universities, that is, self-accrediting higher education
institutions, established under State, Territory or Commonwealth legislation;
and
(ii) any other organisations that offer higher education level
courses and are accredited or approved under the relevant State or Territory
legislation;
(f) providers of adult and
community education;
(g) bodies whose purpose is the
development and accreditation of curricula, training packages or courses used
by education authorities, institutions or providers, including:
(i) authorities that accredit school education; and
(ii) organisations that endorse training packages within the
Australian Qualifications Framework; and
(iii) authorities that accredit courses; and
(iv) State and Territory recognition agencies.
Note 2 An
education provider is responsible for defining the purposes and outcomes of the
educational services it provides. These responsibilities are set out in
legislation, regulations, published rules and guidelines that determine
curricula, courses, training packages, accreditation and assessment.
Note 3 The
Standards apply to education providers delivering education and training
through a range of modes including in-class tuition, distance education,
flexible delivery, computer-assisted learning, on-line delivery, part-time
study for post-compulsory students and the various combinations of these modes,
and on-the-job training.
1.6 Construction
of Standards
(1) These Standards are intended to be within the
power conferred by the Act, and are to be construed accordingly.
(2) A provision that, despite subsection (1),
cannot be construed as being entirely within the power conferred by the Act has
effect to the extent that it is within that power.
Part 2 Meaning
of important terms
2.1 Education
providers
For these
Standards, an education provider is:
(a) an educational authority; or
(b) an educational institution; or
(c) an organisation whose purpose is to develop
or accredit curricula or training courses used by other education providers.
2.2 Meaning
of on the same basis
(1) A person with a disability is able to seek
admission to, or apply for enrolment in, an institution on the same basis as a prospective student without a
disability if the person has opportunities and choices in admission or
enrolment that are comparable with those offered to other prospective students
without disabilities.
Note This
subsection is relevant to subsection 4.2 (1).
(2) An education provider treats a prospective
student with a disability on the same basis as a prospective student without a
disability if the provider makes any decisions about admission or enrolment on
the basis that reasonable adjustments will be provided in accordance with
section 5.2.
Note 1 This
subsection is relevant to subsection 4.2 (2).
Note 2 An
education provider that:
(a) refuses a prospective student with a disability a place in the
institution, or in the particular course or program applied for by the
prospective student, on the ground that the student would be able to enrol in
another institution, or in a course or program at another institution; and
(b) does not refuse students without disabilities places on the same
ground;
does not treat a prospective student on the same basis as a prospective
student without a disability.
(3) A person with a disability is able to
participate in courses or programs provided by an educational institution, and
use the facilities and services provided by it, on the same basis as a
student without a disability if the person has opportunities and choices in the
courses or programs and in the use of the facilities and services that are
comparable with those offered to other students without disabilities.
Note 1 This
subsection is relevant to subsections 5.2 (1), 6.2 (1) and 7.2 (1).
Note 2 In
some cases, students with disabilities will not be able to participate on the
same basis as other students if all students are treated in the same way, or if
all students with disabilities are treated in the same way.
Part 3 Making
reasonable adjustments
3.1 Application
of Part
This Part sets
out how a reasonable adjustment is to be identified for the purposes of
paragraphs 4.2 (3) (c), 5.2 (2) (c), 6.2 (2) (c),
7.2 (5) (c) or 7.2 (6) (c).
3.2 Meaning
of student
For this Part:
student includes a prospective student.
3.3 Adjustments
For these
Standards, each of the following is an adjustment:
(a) a measure or action (or a group of measures
or actions) taken by an education provider that has the effect of assisting a
student with a disability:
(i) in relation to an admission or enrolment —
to apply for the admission or enrolment; and
(ii) in relation to a course or program — to
participate in the course or program; and
(iii) in relation to facilities or services —
to use the facilities or services;
on the
same basis as a student without a disability, and includes an aid, a facility,
or a service that the student requires because of his or her disability;
(b) an adjustment mentioned in subsection 7.2
(4);
(c) if a change is made to an adjustment
mentioned in paragraph (a) or (b) — the adjustment as affected by the
change.
3.4 Reasonable
adjustments
(1) For these Standards, an adjustment is reasonable
in relation to a student with a disability if it balances the interests of all
parties affected.
Note Judgements
about what is reasonable for a particular student, or a group of students, with
a particular disability may change over time.
(2) In assessing whether a particular adjustment
for a student is reasonable, regard should be had to all the relevant
circumstances and interests, including the following:
(a) the student’s disability;
(b) the views of the student or the student’s
associate, given under section 3.5;
(c) the effect of the adjustment on the student,
including the effect on the student’s:
(i) ability to achieve learning outcomes; and
(ii) ability to participate in courses or
programs; and
(iii) independence;
(d) the effect of the proposed adjustment on
anyone else affected, including the education provider, staff and other
students;
(e) the costs and benefits of making the
adjustment.
Note A
detailed assessment, which might include an independent expert assessment, may
be required in order to determine what adjustments are necessary for a student.
The type and extent of the adjustments may vary depending on the individual
requirements of the student and other relevant circumstances. Multiple
adjustments may be required and may include multiple activities. Adjustments
may not be required for a student with a disability in some circumstances.
The
Standards generally require providers to make reasonable adjustments where
necessary. There is no requirement to make unreasonable adjustments. In
addition, section 10.2 provides that it is not unlawful for an education
provider to fail to comply with a requirement of these Standards if, and to the
extent that, compliance would impose unjustifiable hardship on the provider. The
concept of unreasonable adjustment is different to the concept of unjustifiable
hardship on the provider. In determining whether an adjustment is reasonable
the factors in subsection 3.4 (2) are considered, including any effect of
the proposed adjustment on anyone else affected, including the education
provider, staff and other students, and the costs and benefits of making the
adjustment. The specific concept of unjustifiable hardship is not considered. It
is only when it has been determined that the adjustment is reasonable that it
is necessary to go on and consider, if relevant, whether this would
none-the-less impose the specific concept of unjustifiable hardship on the
provider.
(3) In
assessing whether an adjustment to the course of the course or program in which
the student is enrolled, or proposes to be enrolled, is reasonable, the
provider is entitled to maintain the academic requirements of the course or
program, and other requirements or components that are inherent in or essential
to its nature.
Note In
providing for students with disabilities, a provider may continue to ensure the
integrity of its courses or programs and assessment requirements and processes,
so that those on whom it confers an award can present themselves as
having the appropriate knowledge, experience and expertise implicit in the
holding of that particular award.
3.5 Consulting
the student
Before the
education provider makes an adjustment for the student, the education provider
must consult the student, or an associate of the student, about:
(a) whether the adjustment is reasonable; and
(b) the extent to which the adjustment would
achieve the aim mentioned in paragraph 4.2 (3) (b), 5.2 (2) (b),
6.2 (2) (b), 7.2 (5) (b) or 7.2 (6) (b) in
relation to the student; and
(c) whether there is any other reasonable
adjustment that would be less disruptive and intrusive and no less beneficial
for the student.
3.6 Deciding
on an adjustment to be made
In deciding
whether to make a particular reasonable adjustment for a student, the education
provider must:
(a) assess whether there is any other reasonable
adjustment that would be less disruptive and intrusive and no less beneficial
for the student; and
(b) assess whether the adjustment may need to be
changed over the period of a student’s education or training.
3.7 Adjustments
to be provided in reasonable time
(1) The education provider must take reasonable
steps to ensure that any adjustment required to be made is made within a
reasonable time.
(2) Whether the time is reasonable depends, in
particular, on whether and when the student, or his or her associate, has
provided:
(a) in a timely way, any relevant information in
the possession of the student or associate about how the disability affects the
student in relation to education or training; and
(b) the student’s or the associate’s opinion about
the matters mentioned in paragraphs 3.5 (a), (b) and (c).
Note The
requirement for a provider to consult a student with a disability, or an
associate of the student, about how the disability affects the student in
relation to education or training is set out in paragraphs 4.2 (3) (a),
5.2 (2) (a), 6.2 (2) (a), 7.2 (5) (a) and 7.2 (6) (a).
3.8 Relation
to premises standards
(1) These Standards do not affect the application
of premises standards to building work undertaken as an adjustment or part of an
adjustment.
(2) If:
(a) these Standards require building work to be
undertaken as an adjustment, or part of an adjustment; and
(b) premises standards apply to the building
work;
these Standards do not require the building work to meet
specifications more onerous than those required by the premises standards.
(3) In this section:
premises standards means disability standards, formulated by
the Attorney-General under section 31 of the Act, that deal, in whole or in part,
with the access to or the use of any premises.
building work includes the construction of a new building.
Part 4 Standards
for enrolment
4.1 Application
of Part
This Part
applies in relation to:
(a) an individual with a disability who is a
prospective student for an educational institution; and
(b) an education provider that is:
(i) the educational institution mentioned in
paragraph (a); or
(ii) an educational authority that administers
the educational institution.
Rights
given by this Part
The effect of the following standards is to give prospective students with disabilities
the right to enrol in an educational institution on the same basis as
prospective students without disabilities, including the right to reasonable
adjustments that are necessary to ensure that they are able to so enrol on the
same basis as prospective students without disabilities.
4.2 Enrolment
standards
(1) The education provider must take reasonable
steps to ensure that the prospective student is able to seek admission to, or
apply for enrolment in, the institution on the same basis as a prospective
student without a disability, and without experiencing discrimination.
(2) The provider must ensure that, in making the
decision whether or not to offer the prospective student a place in the
institution, or in a particular course or program applied for by the
prospective student, the prospective student is treated on the same basis as a
prospective student without a disability, and without experiencing
discrimination.
(3) The provider must:
(a) consult the prospective student, or an
associate of the prospective student, about whether the disability affects the
prospective student’s ability to seek admission to, or apply for enrolment in,
the institution; and
(b) in the light of the consultation, decide whether
it is necessary to make an adjustment to ensure that the prospective student is
able to seek admission to, or apply for enrolment in the institution, on the
same basis as a prospective student without a disability; and
(c) if:
(i) an adjustment is necessary to achieve the
aim mentioned in paragraph (b); and
(ii) a reasonable adjustment can be identified in
relation to that aim;
make a
reasonable adjustment for the student in accordance with Part 3.
(4) For this section, the provider has taken reasonable
steps to comply with subsection (1) if the provider has complied with
subsection (3).
Note See
Part 10 for exceptions to the legal obligations set out in the standards. These
include a provision that it is not unlawful for a provider to fail to comply
with a standard if, and to the extent that, compliance would impose
unjustifiable hardship on the provider (section 10.2).
4.3 Measures for compliance with
standards
Measures that
the education provider may implement to enable the prospective student to seek
admission to, or apply for enrolment in, the
institution on the same basis as a prospective student without a disability
include measures ensuring that:
(a) information about the enrolment processes:
(i) addresses the needs of students with disabilities;
and
(ii) is accessible to the student and his or her
associates; and
(iii) is made available in a range of formats
depending on the resources and purposes of the provider and within a reasonable
timeframe; and
(b) enrolment procedures are designed so that the student, or an
associate of the student, can complete them without undue difficulty; and
(c) information about entry requirements, the
choice of courses or programs, progression through those courses or programs
and the educational settings
for those courses or programs is accessible to the student and his or her
associates in a way that enables the student, or associates, to make informed
choices.
Part 5 Standards
for participation
5.1 Application
of Part
This Part applies in relation to:
(a) a student with a disability who is enrolled
in an educational institution; and
(b) an education provider that is:
(i) the educational institution mentioned in
paragraph (a); or
(ii) an educational authority that administers
the educational institution.
Rights
given by this Part
The effect of the following standards is to give students with
disabilities the right to participate in the courses or programs, and to use
services and facilities, provided by an educational institution, on the same
basis as students without disabilities, including the right to reasonable
adjustments, where necessary, to ensure they are able to participate in
education and training, on the same basis as students without disabilities.
5.2 Participation
standards
(1) The education provider must take reasonable
steps to ensure that the student is able to participate in the courses or
programs provided by the educational institution, and use the facilities and
services provided by it, on the same basis as a student without a disability,
and without experiencing discrimination.
(2) The provider must:
(a) consult the student, or an associate of the
student, about whether the disability affects the student’s ability to
participate in the courses or programs for which the student is enrolled and
use the facilities or services provided by the provider; and
(b) in the light of the consultation, decide
whether an adjustment is necessary to ensure that the student is able to
participate in the courses or programs provided by the educational institution,
and use the facilities and services provided by it, on the same basis as a
student without a disability; and
(c) if:
(i) an adjustment is necessary to achieve the
aim mentioned in paragraph (b); and
(ii) a reasonable adjustment can be identified in
relation to that aim;
make a
reasonable adjustment for the student in accordance with Part 3.
(3) The provider must repeat the process set out
in subsection (2) as necessary to allow for the changing needs of the student
over time.
(4) For this section, the provider has taken
reasonable steps to comply with subsection (1) if the provider has complied
with subsections (2) and (3).
Note See
Part 10 for exceptions to the legal obligations set out in the standards. These
include a provision that it is not unlawful for a provider to fail to comply
with a standard if, and to the extent that, compliance would impose
unjustifiable hardship on the provider (section 10.2).
5.3 Measures
for compliance with standards
Measures that
the education provider may implement to enable the student to participate in
the course or program for which the student is enrolled and use the facilities
and services provided by it on the same basis as a student without a
disability, include measures ensuring that:
(a) the course or program activities are sufficiently flexible for
the student to be able to participate in them; and
(b) course or program requirements are reviewed, in the light of
information provided by the student, or an associate of the student, to include
activities in which the student is able to participate; and
(c) appropriate programs necessary to enable participation by the
student are negotiated, agreed and implemented; and
(d) additional support is provided to the
student where necessary, to assist him or her to achieve intended learning
outcomes; and
(e) where a course or program necessarily includes an activity in
which the student cannot participate, the student is offered an activity that
constitutes a reasonable substitute within the context of the overall aims of
the course or program; and
(f) any activities that are not conducted in classrooms, and
associated extra-curricular activities or activities that are part of the
broader educational program, are designed to include the student.
Part 6 Standards
for curriculum development, accreditation and delivery
6.1 Application
of Part
This
Part applies if:
(a) a course or program is designed by an
education provider; and
(b) (whether the course or program is offered to
students by that provider, or by another) either:
(i) a student with a disability is undertaking
the course or program; or
(ii) the provider has a reasonable expectation
that students with disabilities may undertake the course or program.
Rights
given by this Part
The effect of the following standards is to give students with
disabilities the right to participate in educational courses or programs that
are designed to develop their skills, knowledge and understanding, including
relevant supplementary programs, on the same basis as students without
disabilities.
6.2 Standards
for curriculum development and accreditation and delivery
(1) The education provider must take reasonable
steps to ensure that the course or program is designed in such a way that the student
is, or any student with a disability is, able to participate in the learning
experiences (including the assessment and certification requirements) of the
course or program, and any relevant supplementary course or program, on the
same basis as a student without a disability, and without experiencing
discrimination.
(2) If a student is enrolled in the course or
program, the provider must:
(a) consult the student, or an associate of the
student, about whether the disability affects the student’s ability to
participate in learning experiences of the course or program, or any relevant
supplementary course or program; and
(b) in the light of that consultation, decide
whether an adjustment is necessary to ensure that the student is able to
participate in those learning experiences on the same basis as a student
without a disability who is enrolled in the course or program; and
(c) if:
(i) an adjustment is necessary to achieve the
aim mentioned in paragraph (b); and
(ii) a reasonable adjustment can be identified in
relation to that aim;
make a
reasonable adjustment for the student in accordance with Part 3.
(3) The provider must repeat the process set out
in subsection (2) as necessary to allow for the changing needs of the student
over time.
(4) For this section, in relation to a student
enrolled in a course or program, the provider has taken reasonable steps to
comply with subsection (1) if the provider has complied with subsections (2)
and (3).
Note See
Part 10 for exceptions to the legal obligations set out in the standards. These
include a provision that it is not unlawful for a provider to fail to comply
with a standard if, and to the extent that, compliance would impose
unjustifiable hardship on the provider (section 10.2).
6.3 Measures for compliance with
standards
Measures that
the education provider may implement to enable the student to participate in
the learning experiences (including the assessment and certification
requirements) of the course or program, and any relevant supplementary course
or program, on the same basis as a student without a disability, include
measures ensuring that:
(a) the curriculum, teaching materials, and the
assessment and certification requirements for the course or program are
appropriate to the needs of the student and accessible to him or her; and
(b) the course or program delivery modes and learning activities take
account of intended educational outcomes and the learning capacities and needs
of the student; and
(c) the course or program study materials are
made available in a format that is appropriate for the student and, where
conversion of materials into alternative accessible formats is required, the
student is not disadvantaged by the time taken for conversion; and
(d) the teaching and delivery strategies for the
course or program are adjusted to
meet the learning needs of the student and address any disadvantage in
the student’s learning resulting from his or her disability, including through
the provision of additional support, such as bridging or enabling courses, or
the development of disability-specific skills; and
(e) any activities that are not conducted in a classroom, such
as field trips, industry site visits and work placements, or activities that are part of the broader
course or educational program of which the course or program is a part, are
designed to include the student; and
(f) the
assessment procedures and methodologies for the course or program are adapted
to enable the student to demonstrate the knowledge, skills or competencies
being assessed.
Part 7 Standards
for student support services
7.1 Application
of Part
This Part
applies in relation to:
(a) a student with a disability who is enrolled
in an educational institution; and
(b) an education provider that is:
(i) the educational institution mentioned in
paragraph (a); or
(ii) an educational authority that administers
the educational institution.
Rights
given by this Part
The effect of the following standards is to give students with
disabilities rights in relation to student support services provided by
educational authorities and institutions, on the same basis as students without
disabilities.
The standards also give students with disabilities rights in
relation to specialised services needed for them to participate in the
educational activities for which they are enrolled. These services include
specialist expertise, personal educational support or support for personal and
medical care, without which some students with disabilities would not be able
to access education and training.
7.2 Standards
for support services
(1) The education provider must take reasonable
steps to ensure that the student is able to use support services used by the
students of the institution in general on the same basis as a student without a
disability, and without experiencing discrimination.
(2) If a specialised support service is necessary
for the student to be able to participate in the activities for which he or she
is enrolled, and is of a kind that is provided by the education provider, the
provider must take reasonable steps to ensure that the student has access to
the service (but may arrange for it to be provided by another person or
agency).
(3) If a specialised support service is necessary
for the student to be able to participate in the activities for which he or she
is enrolled, and is of a kind that is not provided by the provider, the
provider must take reasonable steps to facilitate the provision of the service
to the student by another person or agency.
(4) Each of:
(a) the provision of access to specialised
support services mentioned in subsection (2); and
(b) the facilitation by the provider of the
provision of specialised support services mentioned in subsection (3);
is an adjustment for the purposes of these Standards.
(5) The provider must:
(a) consult the student, or an associate of the
student, about whether the disability affects the student’s ability to access
support services used by the students of the institution; and
(b) in the light of that consultation, decide
whether an adjustment is necessary to ensure that the student is able to access
those support services on the same basis as a student without a disability; and
(c) if:
(i) an adjustment is necessary to achieve the
aim mentioned in paragraph (b); and
(ii) a reasonable adjustment can be identified in
relation to that aim;
make a
reasonable adjustment for the student in accordance with Part 3.
(6) The provider must:
(a) consult the student, or an associate of the
student, about the need for the student to have access to specialised support
services that are provided by the provider or by other persons or agencies; and
(b) in the light of that consultation, decide
whether an adjustment of the kind mentioned in subsection (4) is necessary for
the student to be able to participate in the activities for which he or she is
enrolled; and
(c) if:
(i) an adjustment is necessary to achieve the
aim mentioned in paragraph (b); and
(ii) a reasonable adjustment can be identified in
relation to that aim;
make a
reasonable adjustment for the student in accordance with Part 3.
(7) The provider must repeat the processes set
out in subsections (5) and (6) as necessary to allow for the changing needs of
the student over time.
(8) For this section:
(a) the provider has taken reasonable steps to
comply with subsection (1) if the provider has complied with subsection (5) and
with subsection (7) as it relates to subsection (5); and
(b) the provider has taken reasonable steps to
comply with subsections (2) and (3) if the provider has complied with
subsection (6) and with subsection (7) as it relates to subsection (6).
Note See
Part 10 for exceptions to the legal obligations set out in the standards. These
include a provision that it is not unlawful for an education provider to fail
to comply with a standard if, and to the extent that, compliance would impose
unjustifiable hardship on the provider (section 10.2).
7.3 Measures
for compliance with standards
Measures that the education
provider may implement to ensure that the student is able to access support
services used by students in general, on the same basis as a student without a
disability, and to ensure his or her access to specialised support services,
include measures ensuring that:
(a) staff
of education providers are aware of the specialised services available for the
student and are provided with information that enables them to assist the
student to access the services that the student needs; and
(b) the provision of specialised services for the
student, where necessary, is facilitated, including through collaborative
arrangements with specialised service providers; and
(c) any necessary specialised equipment is
provided to support the student in participating in the course or program; and
(d) appropriately
trained support staff, such as specialist teachers, interpreters, note-takers
and teachers’ aides, are made available to students with disabilities.
Examples
Examples of the specialised services mentioned in paragraph 7.3 (c)
include services in health, personal care and therapy, and services provided by
speech therapists, occupational therapists and physiotherapists.
Examples of the specialised equipment mentioned in paragraph 7.3 (d)
include adaptive technology and assistive devices.
Part 8 Standards
for harassment and victimisation
8.1 Meaning
of harassment
For these
Standards, harassment:
(a) in relation to a person with a disability,
includes an action taken in relation to the person’s disability that is
reasonably likely, in all the circumstances, to humiliate, offend, intimidate
or distress the person; and
(b) in relation to a person who has an associate
with a disability, includes an action taken in relation to the associate’s
disability that is reasonably likely, in all the circumstances, to humiliate,
offend, intimidate or distress the person or the associate.
Note Harassment
in education or training is unlawful under sections 37 and 38 of the Act.
8.2 Application
of Part
This Part
applies in relation to an education provider that is:
(a) an educational institution; or
(b) an educational authority that administers
the educational institution;
if either:
(c) a student with a disability is enrolled in
the educational institution; or
(d) the provider has a reasonable expectation
that a student with a disability may enrol in the educational institution.
Rights
given by this Part
The effect of the following standards is to require strategies
and programs to support the right of students with disabilities to education or
training in an environment that is free from discrimination caused by
harassment or victimisation on the basis of their disability.
The standards also support the right of students who have
associates with disabilities to an educational environment free from
discrimination, harassment or victimisation in relation to those disabilities.
Note The
exception set out in section 10.2, relating to compliance that imposes
unjustifiable hardship on an education provider, does not apply to a
requirement in this Part.
8.3 Standards
for eliminating harassment and victimisation
(1) An education provider must develop and
implement strategies and programs to prevent harassment or victimisation of a
student with a disability, or a student who has an associate with a disability,
in relation to the disability.
(2) The provider must take reasonable steps to
ensure that its staff and students are informed about:
(a) the obligation not to harass or victimise
students with disabilities, or students who have associates with disabilities;
and
(b) the appropriate action to be taken if
harassment or victimisation occurs; and
(c) complaint mechanisms available to a student
who is harassed or victimised in relation to a disability of the student or of
an associate of the student.
8.4 Harassment
and victimisation provisions of the Act continue to apply
For section 34
of the Act, an action that contravenes section 37, 38 or 42 of the Act is not
an action in accordance with these Standards.
Note Section
37 of the Act makes it unlawful for a member of staff of an educational
institution to harass a student or prospective student with a disability.
Section 38 of the Act makes it unlawful for a member of staff of
an educational institution to harass a student or prospective student who has
an associate with a disability.
Section 42 of the Act makes it an offence to victimise a person
for acting to assert or support a right given by the Act.
8.5 Measures
for compliance with standards
Measures that
the education provider may implement to enable the student to participate in
education and training in an environment free from harassment and victimisation
include measures ensuring that:
(a) the provider’s policies, procedures and
codes of conduct for its staff and students explicitly prohibit harassment and
victimisation of students with disabilities, on the basis of disability,
including:
(i) the need for individual strategies and
adjustments for a student; and
(ii) the need to use such supports as a
wheelchair, hearing aid, breathing support, an interpreter, a reader, an
assistant or carer or a guide or hearing dog, or other appropriately trained
animal; and
(b) the policies, procedures and codes of
conduct for staff and students explicitly prohibit harassment and victimisation
of the associates of students with disabilities, on the basis of disability;
and
(c) the procedures for handling any cases or
complaints of harassment and victimisation relating to disability are fair,
transparent and accountable; and
(d) the provider’s students and staff are
effectively informed and reminded, at appropriate intervals, of their rights
and responsibilities in maintaining an environment free from harassment and
victimisation on the basis of disability; and
(e) the professional development programs offered to the provider’s
staff ensure that policies, procedures and codes of conduct, including matters
of harassment and victimisation, are known and understood by staff, and that
staff are trained to detect, and deal with, harassment in education and
training settings; and
(f) any cases or complaints of harassment or
victimisation on the basis of disability are handled promptly and with due
regard to the severity of the matter.
Part 9 Treatment
of a person who has an associate with a disability
9.1 Act
continues to apply in relation to person who has associate with a disability
For section 34
of the Act, an action that contravenes the provisions of section 22 of the Act
in relation to a person who has an associate with a disability is not an action
in accordance with these Standards.
Note The
relevant provisions of section 22 of the Act provide that an educational
authority must not discriminate against a person in admission to an education
institution, or as a student, on the ground of a disability of any of the
person’s associates.
Part 10 Exceptions
10.1 Exceptions
(1) These Standards do not render it unlawful for
an education provider to fail to comply with a requirement of these Standards
if section 10.2, 10.3, 10.4 or 10.5 applies.
(2) If an exception is invoked, it is the
responsibility of the provider to demonstrate that the exception operates.
10.2 Unjustifiable
hardship
(1) This section does not apply to a requirement
in Part 8 of these Standards.
(2) These Standards do not render it unlawful for
an education provider to fail to comply with a requirement of these Standards
if, and to the extent that, compliance would impose unjustifiable hardship on
the provider.
(3) The provider must comply with the Standards
to the maximum extent not involving unjustifiable hardship.
Note Section
11 of the Act provides that, for the purposes of the Act, in determining what
constitutes unjustifiable hardship, all relevant circumstances of the
particular case are to be taken into account including:
(a) the nature of the benefit or detriment likely to accrue or be
suffered by any persons concerned; and
(b) the effect of the disability of a person concerned; and
(c) the financial circumstances and the estimated amount of
expenditure required to be made by the person claiming unjustifiable hardship;
and
(d) in the case of the provision of services, or the making available
of facilities — an action plan given to the Commission under section 64 of
the Act.
The application of unjustifiable hardship should take account of
the scope and objects of the Act and the Standards, particularly the object of
removing discrimination as far as possible, and of the rights and interests of
all relevant parties. In determining whether the exception of unjustifiable
hardship can be relied on, all relevant circumstances of the particular case
are to be taken into account.
The Standards generally require providers to make reasonable
adjustments where necessary. In determining whether an adjustment is reasonable
the factors in subsection 3.4 (2) are considered, including any effect of
the adjustment on anyone else affected, including the education provider, staff
and other students, and the costs and benefits of making the adjustment. There
will be possible adjustments which are not reasonable. There is no requirement
on providers to make unreasonable adjustments. The concept of unreasonable
adjustment is different to the concept of unjustifiable hardship on the
provider in section 10.2. Where the obligation to make a reasonable adjustment
none‑the‑less imposes unjustifiable hardship on the provider,
section 10.2 will operate. The concepts of reasonable adjustment and
unjustifiable hardship seek to provide a balance between the interests of
providers and others, and the interests of students with disabilities.
10.3 Acts done under statutory authority
These
Standards do not render unlawful anything done in the circumstances described
in section 47 of the Act.
10.4 Protection
of public health
These
Standards do not render it unlawful for an education provider to isolate, or
discriminate against, a student with a disability if the disability is an
infectious disease or other condition and it is reasonably necessary to so
isolate or discriminate to protect the health and welfare of the student with a
disability or the health and welfare of others.
10.5 Special measures
(1) These Standards do not render it unlawful for
an education provider to provide special measures (including specialised units
or institutions) intended specifically for the benefit of students with
disabilities.
(2) In this section:
special measure means an act mentioned in section 45 of the
Act.
Note Special
measures are intended specifically for the benefit of students with
disabilities, and can take the form of programs or initiatives that afford
students with disabilities, or with a particular disability, benefits, grants,
programs, goods, or access to facilities, services or opportunities to meet
their special needs in relation to education and training. However, providing
specialised support services will not necessarily be sufficient to eliminate
discrimination.
Part 11 Review
11.1 Timetable for review
The Minister for Education, Science and
Training, in consultation with the Attorney-General, must:
(a) within 5 years after the commencement of
these Standards, conduct a review of the effectiveness of these Standards in
achieving their objects, including a consideration of whether any amendments
are desirable; and
(b) conduct further reviews to be completed at
intervals of not more than 5 years.