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Two policy instruments are important for the regulation of access to education. The Disability Discrimination Act 1992 (Cth) and the related Disability Standards for Education 2005 require, at least implicitly, educational materials to be delivered in accessible formats.

Disability Discrimination Act 1992

The Disability Discrimination Act 1992 (Cth) (DDA) makes disability discrimination in education unlawful in several ways:

22 Education

(1) It is unlawful for an educational authority to discriminate against a person on the ground of the person’s disability:

(a) by refusing or failing to accept the person’s application for admission as a student; or

(b) in the terms or conditions on which it is prepared to admit the person as a student.

(2) It is unlawful for an educational authority to discriminate against a student on the ground of the student’s disability:

(a) by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority; or

(b) by expelling the student; or

(c) by subjecting the student to any other detriment.

(2A) It is unlawful for an education provider to discriminate against a person on the ground of the person's disability:

(a) by developing curricula or training courses having a content that will either exclude the person from participation, or subject the person to any other detriment; or

(b) by accrediting curricula or training courses having such a content.

(3) This section does not render it unlawful to discriminate against a person on the ground of the person’s disability in respect of admission to an educational institution established wholly or primarily for students who have a particular disability where the person does not have that particular disability.

Using educational materials which do not come in accessible format is an example of disability discrimination.

A number of claims of disability discrimination in education have been upheld.

For example, in Hurst v Queensland [2006] FCAFC 100 (28 July 2006), Tiahna Hurst, a profoundly deaf girl, was found to have been discriminated against on the grounds of disability when her school failed to provide an Auslan interpreter for her, causing her significant disadvantage.

Disability Standards for Education 2005

The Disability Standards for Education 2005 (‘the Standards’) were formulated by the Attorney-General under the Disability Discrimination Act 1992 (DDA). They endeavour to ensure that students with disability are able to access and participate in education on the same level as other students.

The Standards do this by providing clarity and specificity for education and training providers and for students with disability. The Standards are accompanied by plain English Guidance Notes, which provide additional material to assist educators to understand their obligations, and the students their entitlements, under the Education Standards.

The Standards came into effect on 18 August 2005. The DDA makes it unlawful to disobey a disability standard. The Education Standards apply to government and non-government providers in all education sectors, pre-school, school, vocational education and training, higher education and adult and community education, as well as to organisations whose purpose it is to develop and accredit curricula and courses.

An education provider is required to make any decisions about admission, enrolment or participation on the basis that reasonable adjustments will be made where necessary so that the student with disability is treated on the same basis as a student without the disability.

However, a provider is required only to make a ‘reasonable adjustment’. An adjustment is not mandatory if it would cause ‘unjustifiable hardship’ to the provider.

In particular, standard 6.3 (c) requires that education providers ensure that:

‘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’.

Not making an educational course or program of study available in an accessible format may therefore be a breach of the DDA and unlawful.

Review of Disability Standards for Education 2005

A significant review into the Standards for Education occurred in 2011 with over 200 written responses. As a result the Government response and report of the review were released in 2012.

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