Site navigation

Change font size: SmallerLargerReload

navigation Disability Rights

Frequently asked questions: Education

Last updated 24 September 2007

Are there any standards in force on non-discriminatory education?

Yes. Disability Standards for education entered into force on 18 August 2005.

Can an education provider be required to move a course or event from an inaccessible venue to an accessible one?

Yes, where this is reasonably achievable. In the DDA case of Kinsela v Queensland University of Technology , decided by the Commission in 1997, the University was required to move its graduation ceremony so that a student who uses a wheelchair could participate fully and on equal terms with other students. The Commission found that the amount of additional expense and possible administrative inconvenience involved was not sufficient to make it reasonable to refuse to arrange for equal access in this way. Compare, however, the decision in Mrs J (on behalf of herself and A.J.) v A School , decided by the Commission in 1998. A.J. had hip disease making it difficult and dangerous for her to climb stairs. The Commission found the school had not imposed an unreasonable condition or requirement in refusing to move AJ's classes to downstairs classrooms. This would have involved disrupting the arrangements for 200 students and AJ had been offered the option of moving into a different but equivalent class downstairs, although it was acknowledged this would involve some loss of contact with friends already made in her existing classes. (A decision that the school in this case had discriminated in other respects was reversed by the Commission after review by the Federal Court: see Cowell and Cowell v A School .)

Can schools exclude children who have not been vaccinated against infectious diseases?

Yes. The exception in the DDA for measures "reasonably necessary to protect public health" has been held by the Commission to apply in this situation. See the decision in Beattie v Maroochy Shire Council.

Does the DDA affect rules about student behaviour?

Reasonable rules about behaviour are not discriminatory under the DDA. However, rules which are unreasonable or are unreasonably applied may involve indirect discrimination.

The decisions of the High Court in Purvis v NSW, Federal Court in State of NSW v HREOC and Purvis (29 August 2001) and the Full Court in Purvis v NSW (24 April 2002) confirm that applying the same rules about disruptive behaviour as would be or are applied to students without a disability does not involve direct discrimination - whether or not the behaviour is caused by a disability.

Treatment which is the same but which is less favourable in its impact will not be direct discrimination, but note that it may be indirect discrimination if it is unreasonable. Indirect discrimination under the DDA occurs if a person with a disability is required to comply with a condition or requirement, which he or she cannot comply with, and which a substantially greater proportion of people without than with the disability can comply with, and which is not reasonable. On this basis, reasonable rules, requirements or policies regarding student behaviour which are applied uniformly and reasonably are permitted by the DDA.

An unreasonable rule or unreasonable application of a rule, however, may be discriminatory if it disadvantages students with a disability compared to students who do not have that disability. See also the DDA case H v S discussed below, where indirect rather than direct discrimination was held to be the applicable concept of discrimination and where reasonable restrictions based on behaviour were therefore held to be permitted.What is unlawful and what is reasonable have to be considered in the circumstances of each case.

Automatic application of a standard penalty - such as suspension for fighting or other disruptive behaviour - may not always be reasonable where a disability has caused the behaviour. For example in I on behalf of BI v State of Queensland the Queensland Anti-Discrimination Tribunal found indirect discrimination in a student being excluded for breach of attendance policy without regard being had to his mental illness having caused the problems in attendance.

Equally, however, the fact that a student has, or is regarded as having, a disability does not excuse the student from complying with reasonable application of reasonable rules. In some cases there may also be an issue of whether a requirement has been imposed which the student cannot comply with, or whether he or she could comply but chose not to.

What circumstances should be considered in deciding whether treatment is reasonable?

In determining whether a rule, requirement, condition, practice or other treatment is reasonable, all relevant circumstances would be considered. In a passage which has been adopted on a number of occasions by the High Court (and by the Federal Court), Bowen CJ and Gummow J (speaking of the equivalent provision in the Sex Discrimination Act) said in the Federal Court case Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 at 263 that the test of "reasonableness"... is less demanding than one of necessity, but more demanding than one of convenience ... The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account. See now also Hurst v Education Queensland .

The importance of the purpose of the rule or requirement

Protection of the safety or rights of students or staff and the effectiveness of the learning environment are clearly important and legitimate purposes for an educational authority.

Whether there are other means of achieving that purpose

Even a compelling purpose does not necessarily mean that a particular means of achieving that purpose is reasonable to adopt or to maintain, if in the circumstances other means of achieving the purpose are reasonably able to be identified and implemented which would not have the same disadvantaging or excluding effect on students with a disability. However the courts have also emphasised that a rule is not automatically unreasonable only because an alterantive is able to be identified: all circumstances have to be taken into account.

The nature and extent of the disadvantage resulting from the rule

A severe sanction such as expulsion or long term suspension from an educational institution may require stronger justification than less severe disciplinary measures.

An example

Each case needs to be considered on its own facts, but the case of H v S decided by the Commission in 1997 may be a useful example.H was a student at university S. H alleged that S denied him access to a building on the university's campus because of his disability, a personality disorder. The respondent agreed that it had imposed restrictions on H but said that it had done so because of complaints made by staff about H's threatening behaviour and harassing manner. It denied that it had done so because of H's disability. The Commission found that there had not been unlawful discrimination.In relation to direct discrimination, the Commission held that anyone who displayed H's behaviour (whether or not he or she had a disability) would have had similar restrictions imposed. In relation to indirect discrimination, the Commission held that the requirement and condition that S placed on H - that he be excluded from certain areas and from approaching certain staff - was reasonable having regard to the circumstances of the case. These included the fact that other equivalent facilities remained available at the university such that H would not be prevented from continuing his studies. The Commission also noted that restrictions which were reasonable at the time they were imposed had been removed when further evidence had shown that H did not pose a danger to staff or other students.

Note also the comments of the Victorian Civil and Administrative Tribunal in Zygorodimos v Department of Education and Training:

... there was a good deal of evidence about what, ideally, was the best way to meet the needs of children like Ben who preferred tuition in the spoken word. Even viewed from the perspective of an ideal world, there was disagreement in the evidence about what was the best way. One view was expressed that full-time one on one tuition was important. Another view was that full-time one on one tuition might decrease the child's self-reliance. Then a view was also expressed that there ought to be greater and more intensive tuition in AUSLAN. But the Equal Opportunity Act is not concerned with ideal or perfect solutions. It prohibits discrimination in various specified areas of activity.

What evidence of disability can education providers require?

Is it discriminatory to ask for information and evidence about a person's disability?

No, if the inquiry is reasonably intended for the purpose of providing equal opportunity or particular services required as a result of a person's disability.Actions which are reasonably intended to provide equal opportunity to people with a disability or to persons with a particular disability are permitted by the DDA (section 45). In the Commission's view this provision clearly applies to inquiries, examinations or actions which are reasonably intended for the purpose of determining need and eligibility for, nature of and possibility of making any reasonable adjustment required.

Does this mean "anything goes"?

No. Inappropriate questions or examinations in relation to disability may lead to, or actually constitute, discrimination. Section 30 of the DDA makes it unlawful to require information for discriminatory purposes. Other requests or requirements, which are not shown to be for a discriminatory purpose but are not justified by a legitimate purpose either, may also constitute discrimination in some circumstances. Concerns in this area include

Failure to give appropriate protection to confidential personal information in relation to a person's disability may discourage disclosure and discussion of disability related issues.

What if sufficient information or evidence about disability is not provided?

The Commission's view is that an education provider's obligation to make reasonable adjustments only arises if the provider knows, or reasonably ought to know, that an adjustment is required. The reasonableness of any condition or requirement imposed by an education provider needs to be judged on the basis of the information which the provider had or reasonably should have had at the time. On this point see for example the Commission's decision in H v S .In some circumstances, an education provider might reasonably be expected to be aware of and accept the need for an adjustment without a specific request or without detailed independent evidence of this need. For example, a large university ought to expect that some students will require wheelchair access.In other circumstances, it may be reasonable to require that a request for adjustment be made in advance or that it be supported by medical or other expert evidence. Students or parents should be prepared to meet reasonable requests for information and evidence about the nature or existence of a disability and in some circumstances may need to take the initiative in providing information and evidence, rather than expecting an education provider automatically to be aware of a disability and any needs arising from this, or to accept an assertion of the existence of a disability or disability- related needs.

What does the DDA say about disclosure of disability?

The Disability Discrimination Act and the Disability Standards for Education made under the Act do not contain any provisions directly on disclosure of disability.

The Guidance Notes issued in association with the Disability Standards for Education however do state:

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.

This advice in the Guidance notes is based on the point that it is only lawful to request disability related information from or in relation to a student in the first place for the purposes of identifying and making possible reasonable adjustments - or for the purposes of other lawful requirements including assessing a student's ability to satisfy course requirements.

Education providers should also refer to the Privacy Act which incorporates Information Privacy Principles including that personal information should only be used for the purposes for which it has been provided. The University of Western Sydney has prepared material on disclosure of disability which seeks to explain the application of both the Privacy Act and discrimination law in this area: http://pubsites.uws.edu.au/rdlo/disclosure/index2.htm

Are international students covered by the DDA?

Yes. The DDA applies to services and facilities provided by Australian educational institutions to all students or persons seeking to become students. Its protection is definitely not limited to students who are Australian citizens or permanent residents.The only exception to this principle is that actions in relation to the administration of the Migration Act are exempt from the DDA. This would cover, for example, decisions by migration authorities to refuse a visa to a student with a disability. This exception would not cover discrimination in admission decisions or provision of services by educational institutions.

Can universities charge extra fees from international students with a disability to cover disability related costs?

Under the DDA, it would constitute unlawful discrimination to exclude a person from being a student because he or she would require special services or facilities because of his or her disability or to refuse to provide the person with these services or facilities, except where provision of the services or facilities would impose unjustifiable hardship. Unjustifiable hardship would need to be demonstrated by the educational institution in the event of a complaint.Clearly, a requirement to pay an additional fee for this reason constitutes less favourable treatment because of the person's disability and therefore would amount to unlawful discrimination unless some exception under the DDA applies.Where provision of facilities would otherwise involve unjustifiable hardship and thus not be required, provision of the service on condition of the payment of an additional fee may be permissible. This defence depends on the provision of the service being an unjustifiable hardship if the additional fee is not imposed. This must always be an uncertain matter until and unless determined by the Commission or the courts in hearing a complaint.Where possible, it would be safer and more consistent with the objects of the DDA to build the costs of disability services into general cost and funding structures, either for international students or for students more generally as appropriate. This approach would be consistent with the recognition, which the DDA in fact requires, that people with a disability are inherently part of the Australian community and indeed of any community with which Australian institutions have dealings.

Does the DDA cover disability harassment of students by other students?

The specific harassment provisions of the DDA in relation to education - sections 37 and 38 - prohibit harassment only by staff. Each of these sections commences with the words "It is unlawful for a person who is a member of the staff of an educational institution to harass ...".The vicarious liability provisions do not alter this position. Rather, they make the employer jointly responsible for the actions of staff unless the employer took "reasonable precautions" and exercised "due diligence". They do not extend to making an institution responsible for the actions of students.The general non-discrimination provision regarding education - section 22 - also needs to be considered since, on the basis of decisions on sex discrimination legislation, harassment can also be covered under general discrimination provisions.Section 22 is framed only in terms of discrimination by educational authorities, and does not deal directly with harassment by other students. There are, however, a number of possible ways that the DDA may be relevant to this form of harassment.

Liability on any of these bases will depend on the circumstances. These provisions and their application are yet to be tested. Clearly, however, it would be prudent for educational authorities to ensure that effective policies to prevent and deal with disability harassment, including by students, are adopted and effectively implemented.

Is education in a mainstream class always required by the DDA?

Not always: but an education provider would need to be prepared to demonstrate that provision of education in a mainstream class would impose unjustifiable hardship. See for example the decisions of the Queensland AntiDiscrimination Tribunal in P v Director General of Education; K v N School and L v Minister of Education.

Does the DDA make it unlawful to fail to acknowledge that a student has a learning disability?

The definition of disability for the purposes of the DDA is:

Not every difficulty in learning will necessarily be regarded by the Commission or the courts as resulting from a "disorder or malfunction". In particular, literacy problems and behavioural problems will not automatically be accepted as constituting or resulting from a disability. What evidence of disability may be reasonable for an education provider to require, and what evidence the Commission or the courts may need, will depend on the circumstances.Failure to provide reasonable adjustments that prevents a child with a learning disability from benefiting equally from education would be capable of being dealt with under the DDA. "Denying the student access, or limiting the student's access, to any benefit provided by the educational authority" and/or "subjecting the student to any other detriment" are forms of discrimination made unlawful by section 22 of the DDA. This would include failure to provide these adjustments because the disability was not recognised when reasonably it should have been.The DDA, like State and Territory discrimination legislation, covers indirect as well as direct discrimination. Application of a rule or practice which is neutral in form but discriminatory in effect is covered by the DDA, where that rule or practice is not reasonable.Specifically, requiring a student with a learning disability to be able to participate in education without necessary adjustments or assistance would be unlawful where that assistance or adjustment can and should reasonably be provided. There is no other restriction in the DDA on the forms of adjustment which may be required.What is reasonable, and the related question of whether necessary adjustments will impose "unjustifiable hardship", can only be determined in the circumstances of each case. The DDA requires that in determining whether there is unjustifiable hardship in any case, the Commission must consider all relevant factors, including the financial resources of the party required to make the adjustment and the benefits and detriments to all persons concerned. Case law under other legislation indicates that the issue of reasonableness should also be determined having regard to all the circumstances including financial circumstances..Clearly, a body with the resources of a State government department would be in a weaker position to argue that an adjustment was unreasonable or imposed unjustifiable hardship on financial grounds than a body with more limited resources.Where an adjustment has relatively minor costs, the argument that such adjustments are reasonable would be stronger accordingly.

Does the DDA require provision by education authorities of disability assessment?

There is no direct entitlement in the DDA to have a disability assessed or identified. This applies to other disabilities equally with learning disabilities. There is, for example, no direct obligation on educational authorities to provide eye tests.However, where failure to undertake assessment which could reasonably have been undertaken leads to failure to make reasonable and necessary adjustments, this will lead to liability for unlawful discrimination.

Is targeting education assistance to particular groups of students with a disability permitted under the DDA?

Concerns arise in this area when the groups selected as priority targets are narrower than the range of people with a disability as defined for the purposes of the DDA.Section 45 of the DDA provides (in relevant part):

This Part does not render it unlawful to do an act that is reasonably intended to:
(c) afford persons who have a disability or a particular disability grants, benefits or programs, whether direct or indirect, to meet their special needs in relation to:
(i) ... education ... .

In the Commission's view grants or programs provided by the Commonwealth or others may have a target group of people with a disability more narrowly defined than the full range of disabilities within the DDA definition. Non-provision of such grants or programs to students who do not have a disability of the kind required to bring them within the target group would not therefore constitute unlawful discrimination. The only proviso to this is that targeting must genuinely be intended, on some reasonable basis, to meet special needs of the target group.The permissibility of targeting special programs and grants does not remove the general obligation of education providers to provide access and opportunity on a non-discriminatory basis, subject only to those limitations provided in the DDA itself including in relation to "unjustifiable hardship".

What adjustments in exams and assessment procedures are required by the DDA?

An assessment or examination procedure which unreasonably disadvantages students with a disability relative to students who do not have that disability will constitute indirect discrimination under the DDA. Adjustments to avoid or remedy this disadvantage will be required by the DDA except where this is unreasonable (or where the unjustifiable hardship exception applies).There is little clear guidance from case law to date on what is reasonable and what unjustifiable hardship involves in this area. However, a number of points of advice can be given.

Does the DDA require changes in course requirements?

The DDA does not require education providers to make changes to courses which would undermine the academic integrity of the course.This is confirmed by a decision of this Commission in its former tribunal function (a function now vested instead in the Federal Court and Federal Magistrates Court). The decision in question is W v Flinders University.

The Disability Standards for education state a similar position in their section 3.4.3:

(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.

It seems clear from the decision in W v Flinders University that the academic standards which the DDA will not require to be changed can include standards which are connected with subsequent fitness to practice a profession - there is no imposition by the DDA of a disconnection between academic courses and their professional application if genuine academic requirements are structured around professional requirements. That is, if a course is designed to teach and test abilities which are based on the entry requirements for a profession, the DDA does not require changes to the course requirements, even though a less professionally focussed course might have been open to a wider range of students with disabilities.

None of this is to prejudge the issue of whether a particular student can or cannot meet relevant course requirements, including with provision of equipment, assistance or other modifications which can be provided without unjustifiable hardship and without compromising academic standards.

Some adjustments - such as provision of course materials in alternative formats - would not appear to raise any issues of academic standards. Others, however - such as being excused from performing a practical task - could well call into question whether the student has mastered and demonstrated the skills which the course is designed to teach and test, depending on the nature of the course.

In some cases it may not be clear in advance whether a student with a disability can or cannot meet course requirements, until the student and the university have discussed possible difficulties and adaptations. The Standards will require some process of consultation before decisions are made on what adjustments are possible to accommodate a student's disability. A process of consultation before deciding that a student or prospective student cannot fulfil course requirements likewise seems an important step in avoiding unlawfully discriminatory decisions under the existing DDA provisions.

Do universities have to provide computer equipment for home use by students with disabilities?

While it is not possible to be definitive on the extent of obligations under the Disability Discrimination Act (since the Federal Court rather than this Commission would make authoritative determinations in the event of a complaint on this issue), it seems highly unlikely that a claim would succeed that a University is discriminating by failing to provide computers for home use, notwithstanding that some students with disabilities could benefit from such provision.

First, while the DDA deals with discrimination in provision of educational services, and thus may require some degree of reasonable adjustment in the way those services are provided, it does not require education providers to deliver services they are not in the business of providing. Otherwise it might be argued, perhaps equally convincingly, that universities should assist students with disabilities affecting mobility by providing free and individualised transport to campus. Long term loan of computers for use at home would be likely to found to be a fundamentally different service than short term access on campus to computers able to be shared between larger numbers of students.

Second, the concept of indirect discrimination under the DDA requires finding a condition or requirement which a person with a disability cannot comply with, and which substantially higher proportions of people without than with the disability can comply with. While it may well be that students with disabilities would find it more convenient to have access to a computer at home than on campus, this does not seem the same as being unable to access the computers on campus.

Third, the concept of indirect discrimination under the DDA requires consideration of issues of reasonableness. In this context issues which would arise would include issues for a university of cost and administration of provision of computers for long term home access; and issues of why the university should be expected to provide computers given the commercial availability of computers at costs which have declined significantly in recent years in real terms and still more so in terms of capability for a given price.

Do universities have to provide personal care services for students requiring this?

No. An education provider must provide non-discriminatory access to the education and other services they provide but are not obliged by the DDA to expand their services to students into areas such as this.

The Disability Standards for Education take the same position on this issue, providing as follows:

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.

Are childcare services covered by the education provisions of the DDA?

If a service is providing early childhood education, then they would be educational institutions for DDA purposes. In any event childcare services would be within the coverage of services more generally under section 24 of the DDA.

What conciliated settlements have there been in education complaints under the DDA?

An expanded collection of summaries of conciliated outcomes in education complaints is now available.  See also the links to Commission decisions and decline decisions on the decisions page.