1. Purpose of Guidance Notes
The
Disability Standards for Education (2005) (the Standards) are formulated
under the Disability Discrimination Act 1992 (DDA). The primary purpose of the Standards is to
clarify, and make more explicit, the obligations of education and training
service providers under the DDA and the rights of people with disabilities in
relation to education and training.
The
Standards include introductory information to assist the reader in interpreting
the Standards. Notes are also included
in each part of the Standards with a view to assisting the reader in the same
way.
The Guidance Notes, set out below, seek to provide additional
explanatory material, including background information and comment, to assist
the reader in interpreting and complying with the Standards. The Notes are intended to enhance
understanding of the scope and practical application of the Standards, in much
the same way that an Explanatory Memorandum can assist in the interpretation of
an Act of Parliament.
2. Application
of the Standards (Standards, section 1.4)
Section
1.4 of the Standards provides a list of education providers bound by the Standards. The effect of section 1.4 of the Standards is
that, subject to Section 12 of the DDA (which deals with the application of the
Act and applies to the Standards), the Standards apply in relation to the
provision of education and training to persons with disabilities by:
(a) the Commonwealth; or
(b) a State; or
(c) a Territory; or
(d) a public authority of the Commonwealth; or
(e) a public authority of a State or Territory;
or
(f) organisations in the private sector.
3. Rights of students with
disabilities (Standards,
Parts 4 to 8)
Parts 4 to 8 of the Standards set out the
standards that education providers must comply with to achieve the objects of
the DDA in relation to the provision of education and training. Each of these parts deals with different
aspects of education and training.
Part 4 deals with enrolment, Part 5 with
participation, Part 6 with curriculum development, accreditation and delivery
and Part 7 student support services.
Part 8 requires providers to develop and implement strategies and
programs to prevent harassment and victimisation.
The note at the foot of the Application
provision for each of the Parts sets out the effect of the Part in terms of the
rights of students with disabilities.
The Standards are intended to give students
with disabilities the same rights as other students. The Standards are based on
the position that all students, including students with disabilities, should be
treated with dignity and enjoy the benefits of education and training in an
educationally supportive environment that values and encourages participation
by all students, including students with disabilities. To achieve this, the effect of the Standards is
to give students and prospective students with disabilities the right to
education and training opportunities on the same basis as students without disabilities. This includes the right to comparable access,
services and facilities, and the right to participate in education and training
unimpeded by discrimination, including on the basis of stereotyped beliefs
about the abilities and choices of students with disabilities.
4. Standards
for enrolment, participation, curriculum and support services (Standards, sections 4.2,
5.2, 6.2, and 7.2)
The
Standards apply to education providers in relation to the provision of their
education and training services. Sections
4.2(1),(2), 5.2(1), 6.2(1), and 7.2(1),(2) require education providers to take
reasonable steps to ensure that students with disabilities are provided with
opportunities to realise their individual potential through their participation
in education and training on the same basis as students without disabilities,
and that they are not subject to discrimination (the concept of on the same
basis is discussed below in part 4.1).
The
Standards set out a process whereby education providers can meet this obligation
(sections 4.2(3), 5.2(2), 6.2(2), and 7.2(5), (6); there is no process for section
4.2(2), which relates simply to decisions to offer enrolment). This includes an obligation to make reasonable
adjustments where necessary to ensure that students with disabilities are able
to participate in education and training on the same basis as students without
disabilities (the concept of reasonable adjustment is discussed below in part
4.2).
The process includes:
consultation with the student;
consideration of whether an adjustment is necessary;
if an adjustment is necessary, identification of a reasonable
adjustment;
making the reasonable adjustment.
If
the provider complies with this process, then they have complied with the
Standards, and they cannot be said to have discriminated (sections 4.2(4),
5.2(4), 6.2(4), and 7.2(8).
However,
education providers are required only to make reasonable adjustments. They are also exempted from making
adjustments that would impose unjustifiable hardship on them. Exceptions from the legal obligations in the
Standards are set out in Part 10.
In cases where a provider decides that an exception applies, it is the
responsibility of the provider to demonstrate how the exception operates.
4.1 Meaning of on the same basis (Standards, section 2.2)
The
concept of on the same basis is used in relation to the basic requirement of
the Standards in sections 4.2(1),(2), 5.2(1), 6.2(1), and 7.2(1),(2). This concept is fundamental to the operation
of the requirement of a provider not to discriminate against students with
disabilities. An education provider
treats a student with a disability on the same basis as a student without the
disability if the student has opportunities and choices, which are comparable
with those offered to students without disabilities, in relation to:
admission or enrolment in an institution; and
participation in courses or programs and use of facilities and services.
A provider is required to make any decisions about admission and
enrolment on the basis that reasonable adjustments will be made where necessary
so that the student with a disability is provided with opportunities and
choices that are comparable with those available to students without
disabilities (section 2.2(2)).
4.2 Making reasonable adjustments (Standards, Part 3)
Education
providers are required to provide reasonable adjustments (sections 4.2(3),
5.2(2), 6.2(2), and 7.2(5), (6)), and can meet their general obligations under
the Standards by doing so (sections 4.2(4), 5.2(4), 6.2(4), and 7.2(8)).
An
adjustment is a measure or action taken to assist a student with a disability
to participate in education and training on the same basis as other
students. An adjustment is reasonable if
it achieves this purpose while taking into account the students learning needs
and balancing the interests of all parties affected, including those of the
student with the disability, the education provider, staff and other
students.
The need for an adjustment and
the nature of an adjustment should be determined in consultation with the
student or their associate (sections 4.2(3)(a), 5.2(2)(a), 6.2(2)(a), and
7.2(5)(a), (6)(a), and 3.5). This might
include consultation on whether there is any other adjustment that would be no
less beneficial for the student but less disruptive and intrusive for others.
In
providing reasonable adjustments for a student with a disability, it is good
practice for an education provider to ensure that the processes for seeking an
adjustment are accessible and transparent.
In deciding on a reasonable adjustment, it may be necessary to seek
professional expertise. This might
include a detailed assessment by an independent expert of the nature of the
students disability and the adjustment(s) that is (are) appropriate for the
student. It is good practice for an
education provider to ensure that there are review mechanisms in place to deal
with any grievances arising from differences in the students preferred
reasonable adjustment and the adjustment recommended by professional experts.
In
assessing whether a particular adjustment is reasonable for the student with a
disability, the education provider should take into account:
the nature of the students disability;
the information provided by, or on behalf of, the student about how the
disability affects the students ability to participate;
views of the student, or an associate of the student, about whether a
proposed adjustment is reasonable and will enable the student with a disability
to access and participate in education and training opportunities on the same
basis as students without disabilities;
information provided by, or on behalf of, the student about his or her
preferred adjustments;
the effect of the proposed adjustment on the student, including the
students ability to participate in courses or programmes and achieve learning
outcomes;
the 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 (sections 3.4(2),
4.2(3)(a), 5.2(2)(a), 6.2(2)(a), 7.2(5)(a), and 7.2(6)(a)).
In
making a reasonable adjustment, the provider should ensure that the integrity
of the course or program and assessment requirements and processes are
maintained (section 3.4(3)).
The
education provider should act upon information about an adjustment in a timely
way that optimises the students participation in education or training
(section 3.7).
Clause
3.4.2 of the Standards makes it clear that the interests of the student are a
very significant consideration in identifying an appropriate and reasonable
adjustment. This is made explicit by the
requirement to have regard to the students disability and the effect of the
adjustment on the student, and the costs and benefits including those accruing
to the student. If in a particular
situation the school could show that a student would be better off in another available
school which had the adjustments required by the student, then this would
clearly be a factor in determining whether any significant adjustment at the
school would be reasonable.
In meeting its obligations to
provide reasonable adjustments, an education provider may provide an
alternative adjustment to the students preferred form of adjustment, if the
alternative is effective in achieving the desired purpose.
As noted, there is no
requirement to make unreasonable adjustments.
Once an adjustment is considered reasonable in the circumstances,
balancing the interests of all parties affected, the next step is to consider
whether it would nonetheless impose unjustifiable hardship on the education
provider (see section 4.4 below).
4.3 Obtaining disability information (Standards, section 3.7)
When considering an adjustment
for a student with a disability, a provider is entitled to information about
the students disability and individual requirements if that information is
directed towards:
providing the adjustment, including assessing the nature and extent of
the adjustment needed and assessing the providers capacity to provide the
adjustment; and
an assessment that is intended to clarify the students ability to
comply with any non-discriminatory requirements of a course or training
program.
Any
confidential information provided to education providers for the purposes of
making adjustments should not be disclosed except for the purposes of the
adjustment or in accordance with a lawful requirement.
4.4 Unjustifiable
hardship (Standards, Part 10)
Under section 10.2 of the
Standards, it is not unlawful for an education provider to fail to comply with
a requirement of the Standards if, and to the extent that, compliance would
impose unjustifiable hardship on the provider.
Unjustifiable hardship has a meaning in accordance with Section 11 of
the DDA. However, the exception of unjustifiable hardship does not
apply to Part 8, the Standards for harassment and victimisation.
In determining whether
unjustifiable hardship applies, within the meaning of Section 11, in relation
to an adjustment for a student with a disability, it is good practice for an
education provider to:
take into account information about the nature of the students
disability, his or her preferred adjustment, any adjustments that have been
provided previously and any recommended or alternative adjustments. This information may be provided by the
student, an associate of the student or independent experts (or a combination
of those persons);
ensure that timely information is available to the student, or an
associate of the student about the processes for determining whether the
proposed adjustment would cause unjustifiable hardship to the provider; and
ensure that these processes maintain the dignity, respect, privacy and
confidentiality of the student and the associates of the student, consistent
with the rights of the rest of the community.
Where a claim of unjustifiable
hardship is made, an education provider should take into account all the
financial and other resources that are reasonably available for the purpose of
making any necessary adjustments for the student, and the impact of those
adjustments on the providers capacity to provide education of high quality to
all students while remaining financially viable. The provider should consider all costs and
benefits both direct and indirect that are likely to result for the provider,
the student and any associates of the student, and any other persons in the
learning or wider community, including:
costs associated with additional staffing, the provision of special
resources or modification of the curriculum;
costs resulting from the students participation in the learning
environment, including any adverse impact on learning and social outcomes for
the student, other students and teachers; and
benefits deriving from the students participation in the learning
environment, including positive learning and social outcomes for the student,
other students and teachers, and any financial incentives, such as subsidies or
grants, available to the provider as a result of the students participation.
If the provider decides to rely on unjustifiable hardship, it is good
practice for the provider to ensure that a notice stating the decision and the
reasons for the decision is given to the student, or an associate of the
student, as soon as practicable after the decision is made.
4.5 Treatment of a person who has an associate with a
disability (Standards, Part 9)
Under
section 22 of the DDA, an educational institution or an authority must not
discriminate against a person on the basis of a disability of any of the
persons associates. The Standards
generally do not deal with this type of discrimination. Part 9 of the Standards provides that the
provisions of the Act continue to apply to this type of discrimination.
5. Legal implications of the Standards
The Standards are enacted
under Section 31 of the DDA and form subordinate legislation of the DDA. If a person acts in accordance with the
Standards, they comply with the DDA. An
education provider must comply with the Standards or it will be acting
unlawfully. A breach of the Standards
will generate a right of complaint to the Human Rights and Equal Opportunity
Commission (HREOC) under the relevant provisions of the DDA and the Human
Rights and Equal Opportunity Commission Act 1986 (the HREOC Act).
The obligations, set
out in Parts 4 to 8 of the Standards, are the legal standards with which
education and training providers must comply.
The measures accompanying each statement of obligation provide
examples of actions that providers may take to ensure compliance with their
legal obligations. Providers are not
obliged to comply with the measures. In
general, compliance with some or all of the measures may be relevant to a
defence against a complaint.
There are some areas in which
discrimination may arise in the education context that are not covered by the
Standards. However, this does not mean
that education providers are not obliged to attempt to eliminate discrimination
in such areas, if those areas or issues are covered by the DDA. For example, employment of people with
disabilities by education providers is not covered by these Standards, but it
is covered by the employment provisions of the DDA.
Section 3.8 of the Standards
deals with the alignment of the Disability Standards for Education with any
standards made in relation to access to or the use of any premises that may be
formulated by the Attorney-General under Section 31 of the DDA. If no Access to Premises Standards are in
place, then Disability Standards for Education will apply to any adjustments
that education providers are required to make in relation to access to
premises.
Nothing in the Standards
should prevent or limit education providers from developing measures that
extend beyond the requirements of the Standards. Education providers are encouraged to
provide, or organise for the provision of, support services or other measures
designed to provide students with disabilities with education on the same basis
as students without disability.
The Standards operate within
the context of other relevant Federal and State or Territory legislation, which
includes anti-discrimination, education, building, planning and occupational
health and safety laws.
6. Ensuring Compliance
Compliance with the Standards
is the responsibility of providers.
Enforcement is achieved through HREOC, the Federal Court or the Federal
Magistrates Court.
A new procedure for handling
complaints of unlawful discrimination under the DDA and the HREOC Act was
implemented in April 2000. It aims to
resolve complaints quickly and inexpensively by way of conciliation in the
first instance. If a student with a
disability or a students associate (the complainant) believes that a provider
is failing to comply with the Standards, a complaint about unlawful discrimination
can be made to HREOC. Complaints may
also be made to HREOC on a representative basis. The President of HREOC is responsible for
inquiring into the complaint.
A complainant can apply to the
Federal Court or the Federal Magistrates Court seeking an interim injunction to
maintain the status quo that existed immediately before a complaint was lodged
or to maintain the rights of any affected person. Such an application can be made at anytime
after a complaint is lodged with the Commission and allows for fast access to a
binding process in order to maintain the status quo or the rights of the
complainant or respondent while conciliation is attempted.
After an initial inquiry, the
President or the Presidents delegate must decide whether to attempt
conciliation or to terminate the complaint.
A complaint that is settled by way of conciliation is implemented by
both parties agreeing to abide by the terms of the agreement.
Where the parties are not
willing to conciliate or conciliation is unsuccessful, HREOC can no longer deal
with the complaint and the parties will be issued with a termination
notice. The President may terminate a
complaint for a number of reasons, which are set out in Part IIB of the HREOC
Act (including that unlawful discrimination has not occurred, the complaint was
lodged more than 12 months after the unlawful discrimination took place, the
complaint is trivial or vexatious, or that there is no reasonable prospect of
the matter being settled by conciliation).
On receiving a termination
notice, the complainant can apply to the Federal Court or the Federal
Magistrates Court to have the complaint heard and determined. Both courts encourage parties to resolve
their disputes in appropriate cases through counselling, mediation or other
alternative dispute resolution methods.
Both courts are able to make a wide range of orders if they are
satisfied that there has been unlawful discrimination (including an order
requiring the payment of damages or an order requiring the performance of a
reasonable act). A respondent to a
complaint is required to comply with any order of the court.
Any discrimination issues not
covered by the Standards remain subject to the provisions of the DDA. For a fuller understanding of the obligations
and processes involved, interested parties should consult the DDA and the HREOC
Act.
Education providers can also
establish their own alternative grievance or complaint resolution
procedures. Such alternative procedures
may assist in resolving disputes at an early stage without the need for
recourse to legislative dispute resolution procedures. However, such procedures would rely on the
cooperation of all parties involved to resolve and abide by the terms of any
settlement. An agreed settlement would
not be legally binding upon the parties and the alternative mechanism would not
prevent a party from seeking to lodge a complaint under the HREOC Act (as this
right is preserved by legislation).
7. Professional
development and awareness raising
Good practice requires
education providers to ensure that their staff are proficient in interacting
with students in ways which do not discriminate against people with
disabilities.
Attitude is one of the main
barriers to non-discriminatory access to education and training for people with
disabilities. To counter any inherent
discrimination in the provision of education and training, it is recommended
that staff induction and professional development programmes include components
on disability awareness and rights and on the obligations of education and
training providers under the Standards.
Such programmes should enable staff to provide assistance that is
helpful, for example during enrolment, without being patronising in language,
attitude or actions.
It is further recommended that
timely, relevant and ongoing professional development is provided to staff, to
ensure they are equipped with the knowledge, skills and understanding to enable
students with disabilities to participate in the full range of educational programmes
or services, on the same basis and to the same extent as students without
disabilities.
8. Due Diligence and Reasonable
Precautions
8.1 Liability for acts
by employees or agents
Under Section 123 of the DDA,
an education provider is liable for unlawful conduct by the providers
employees or agents unless the provider can establish that it took reasonable
precautions and exercised due diligence to avoid the unlawful conduct. This includes instances where employees or
agents of a provider fail to comply with the Standards. In such cases, the education provider bears
the onus of demonstrating that reasonable precautions had been taken and due
diligence has been exercised.
The DDA does not define due
diligence or reasonable precautions. The meaning of these terms will be determined
by the courts in relation to individual complaints. In one case involving a similar defence under
the Sex Discrimination Act 1984, the Federal Court implied that it would
be necessary for an employer to show that effective policies with respect to
non-discrimination against people with disabilities are in place and that the
employer was active in trying to avoid discriminatory behaviour.
8.2 Discrimination by agents
Education providers sometimes
arrange for delivery of educational services by contract with other individuals
or organisations, rather than providing services directly. In these cases the service provider may be
considered to be an agent of the education provider, in which case the
education provider may be liable under Section 123 for discrimination in the
course of service provision by the agent unless reasonable precautions have
been taken and due diligence exercised by the education provider. Part 7 of the Standards sets out standards
for support services.
Reasonable precautions and due
diligence in this context may include prompt and effective action being taken
by the education provider in response to any indications that the service
provider is not complying with the DDA or the Standards.
Where reasonably available,
auditing or reporting mechanisms and the establishment or promotion of consumer
grievance procedures may also be required and should be considered to ensure
that the Standards and the DDA are being complied with.
8.3 Discrimination by
staff
A single model of reasonable
precautions and due diligence to prevent discrimination by employees or agents cannot
be prescribed for all education providers.
However, the following elements of an effective strategy should be
considered by providers:
making all relevant staff aware of the need to avoid
discrimination. This might include
issuing a formal policy statement on compliance with the DDA and the Standards
and more direct advice to staff;
taking reasonable measures to ensure that staff have sufficient
information and expertise concerning non-discriminatory methods of service
delivery. This may include the provision
of formal training;
establishing or using and promoting existing complaint procedures in
relation to discrimination;
ensuring that complaints are properly and effectively dealt with; and
implementing other reasonably available monitoring strategies,
additional to complaint mechanisms, including internal monitoring through
supervisory and management responsibilities and external monitoring through
customer reference groups.
9. Harassment
and victimisation (Part 8)
The Standards require
education providers to have strategies and programs to prevent harassment and
victimisation of persons with a disability (section 8.3). Harassment means an action taken in relation
to a persons disability that is reasonably likely to humiliate, offend,
intimidate or distress the person (section 8.1). The strategies and program must extend to
students with an associate who has a disability (such as a relative or
carer). An education provider is
required to ensure that staff and students are aware of the obligation not to
harass or victimise students with disabilities or students who have associates
with disabilities. The Standards require
the education provider to take reasonable steps to ensure that staff and
students are aware of appropriate actions to be taken if harassment or
victimisation occurs.
An education provider that has
no strategy or program to prevent or remove harassment and victimisation,
simply because it was not aware that these were occurring, is not likely to be
able to establish a defence under the Standards or the DDA. Similarly, the exception of unjustifiable
hardship is not available as a defence where a provider fails to comply with
the Standards for Harassment and Victimisation.
10. Review
of the Standards
Part 11 of the Standards provides
for a review of the Standards every five years to determine whether the
Standards continue to be effective and remain the most efficient mechanism for
achieving the objects of the DDA.
The review will determine:
whether discrimination has been removed, as far as possible, according
to the requirements for compliance with the DDA;
whether the Standards continue to be compatible with contemporary practices
in education and training; and
if any amendments are required to ensure the effectiveness of the Standards
including those to ensure the Standards are compatible with contemporary practices
in education and training.