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Legislation and Policy

Some of the legislation and policy that is relevant to providing services and assistance to people with a disability in education are:

Defining Disability

The Commonwealth Parliament has defined what constitutes a disability under the Disability Discrimination Act (DDA) (1992). The definition under NSW anti-discrimination legislation is substantially the same.


The DDA states disability is:

  • total or partial loss of the person's bodily or mental functions; or
  • total or partial loss of a part of the body; or
  • the presence in the body of organisms causing disease or illness; or
  • the presence in the body of organisms capable of causing disease or illness; or
  • the malfunction, malformation or disfigurement of a part of the person's body; or
  • a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
  • 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:

  • presently exists; or
  • previously existed but no longer exists; or
  • may exist in the future; or
  • is imputed to a person.

The DDA protects people with a disability against discrimination in education in the following areas:

Admission

  • Refusal or failure to accept an application for admission from a person with a disability
  • Accepting a person with a disability as a student on less favourable terms or conditions than others. For example, asking a person with a disability to pay higher fees.

Access

  • Denying or limiting access to people with a disability. For example, not allowing a person to attend excursions or join in school sports, delivering lectures in an inaccessible format, inaccessible student common rooms.
  • Expelling a person because of a disability, or
  • Subjecting a person with a disability to any other detriment

Harassment

  • Humiliating comments or actions about a person's disability such as insults, or comments or actions which create a hostile environment.

Disability Standards for Education 2005

The Disability Standards for Education 2005 apply to education providers, including Universities under section 32 of the Disability Discrimination Act (1992). It is unlawful for a person to contravene a disability standard. Under section 34 of the DDA, a person acting in accordance with a disability standard will be acting in accordance with the Act.

The Disability Standards for Education 2005 specify how education and training are to be made accessible to students with a disability. They cover the following areas:

  • Enrolments
  • Participation
  • Curriculum development, accreditation and delivery
  • Students support services and
  • Elimination of harassment and victimisation

Each area includes a statement of the rights or entitlements and obligations of students with disabilities in relation to education and training, consistent with the rights of the rest of the community as well as a description of the legal obligations or responsibilities of education authorities, institutions and providers.

The objects of these Standards are:

  • to eliminate, as far as possible, discrimination against persons on the ground of disability in the area of education and training; and
  • 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
  • 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.

The Standards 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 Standards set out a process whereby education providers can meet this obligation. 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 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

More information and a copy of the standards can be found here.

Reasonable Adjustments

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.

More information and a copy of the standards can be found here.