Legal exceptions

On rare occasions, schools are not required to make adjustments.

Under the law, education providers may decide not to comply with the Disability Standards for Education 2005 This link will open in a new window (the Standards) only if they can argue successfully for an exception.

The education provider must then be able to explain their position to students, parents, guardians and carers and their education authority. If a formal complaint is made, the education provider may also need to explain the decision to the relevant tribunal or court of law.

Education providers should aim to make reasonable adjustments for students with disability when needed. However, in some circumstances, education providers are not required to comply with the Standards when there is a legal exception.

Definitions

Unjustifiable hardship is when complying with the Standards imposes an excessive burden on the education provider, staff or other students. This might even occur in the case of an adjustment that the school and parents, guardians or carers feel would achieve the desired goal. Unjustifiable hardship does not usually refer to financial hardship, and it does not apply to the Standards for harassment and victimisation.

The four exceptions

Educators must explain why they will not make adjustments.

The four exceptions to the Standards are:

• unjustifiable hardship
• protection of public health
• other legal acts or provisions
• actions to benefit students with disability.

If a school or education provider decides not to make an adjustment or to provide other types of assistance or support to a student with disability, they need to explain:

• why the adjustments should not be implemented
• how their decision is an exception that is allowed under the Standards.

The education provider should also be able to explain the reasons for the exception to the student, the student’s parents, guardians or carers, their education system authority and, if an official complaint is lodged, to a tribunal or court of law.

There are no exceptions to the Standards regarding preventing harassment and victimisation.

Unjustifiable hardship

Claims for exemptions from the Standards due to unjustifiable hardship are rarely upheld in court. By working together with students and their associates, education providers can usually identify a reasonable adjustment that balances the interests of all parties.

Protection of public health

An exception to the Disability Discrimination Act 1992 and the Standards may be made on the grounds of the need to protect public health. For example, it may be reasonably necessary to isolate or discriminate against a student whose disability is an infectious disease, in order to protect the health and welfare of the student with disability or the health and safety of others.

Claims for exemptions from the Standards due to the need to protect public health and welfare are rarely upheld in court. By working together with students and their associates, education providers can usually identify a reasonable adjustment that balances the interests of all parties, such as in the example of Chad under the heading Questions below.

Other legal acts or provisions

Exceptions to the Standards may also be made when an education provider is obliged to comply with other legal acts or provisions, such as other laws or court orders with which the Standards may be in conflict. However, the education provider must demonstrate that they have made every attempt to balance the two obligations.

Actions to benefit students with disability

Exceptions to the Standards are allowed for the purposes of implementing actions to benefit students with disability. This allows for affirmative action and special measures to be taken for students with disability that are not made available to students without disability. Examples of special measures include grants, programs, goods, and access to facilities, services or opportunities.

Story: Charlie has chickenpox

Charlie was born with a health condition that affects his lungs and means that he tires easily and is affected by strenuous physical exercise. His school makes regular adjustments for him to participate in sports, but some challenges were posed by the sports carnival. The school had a policy that each student should participate in at least one event, and they included novelty events to ensure the participation of students who were unlikely to participate in, or win, any of the other events. However, none of the novelty events was suitable for Charlie and he remained the only student who could not participate in a single event. Clearly it was time for additional consultation.

The sports teacher discussed Charlie's participation with his mother, and they agreed that it was important to ensure that there were events which involved skill and dexterity rather than speed and strength, such as an archery competition. Charlie was terrifically excited by the prospect, and the school undertook to hire appropriate equipment for the event.

A few days before the carnival, Charlie came home with an itchy blister on his back, which was confirmed by the doctor to be chickenpox. The doctor explained that Charlie should not attend school until he was quite well again, and that this could take as much as three weeks. When Charlie's mother rang the school, the deputy principal confirmed that the school was obliged to follow the doctor's recommendation and that Charlie would not be able to attend the sports carnival.

Charlie was devastated. He understood that the school often arranged things so that he could do sports with the other kids, and that the archery event had been included especially so that he had an opportunity to participate. He said he felt fine, was just itchy, and could still do archery, and he wanted to know why they couldn’t arrange something so he could still come along to the sports carnival. He said it wasn’t fair, and complained bitterly.

Finally, after a long talk with his mother and his teacher, Charlie understood. It would not be reasonable for the school to re-schedule the carnival, and they had to keep him away from the carnival in order to protect the health of the other students.

Although the school couldn’t allow Charlie to participate in the sports carnival, he didn’t miss out. When Charlie was back at school, they organised a lunchtime archery competition. They also decided to nominate one event in the carnival to be the Charlie’s Chickenpox Run, and asked Charlie if he would present the prize at the next school assembly.

Question

Chad is an energetic 15-year-old. In certain circumstances, he may be distractible, hyperactive and impulsive. He enjoys playing basketball but is inclined to act out physically towards other players during games. It is decided that Chad should not be on court for longer than five minutes at a time, and that his class teacher will organise a substitution roster accordingly. The teacher also proposes a clear signal that she will give to Chad when she thinks that he is getting too ‘into’ the game and may be at risk of losing control. Chad agrees to come off court immediately if the teacher uses this signal. What is this an example of?

• Unjustifiable hardship

  No. The school is complying with the Standards by making a reasonable adjustment so that Chad can safely participate in sport with his class.

• Protection of public health

  Yes and no. There was a consideration that Chad’s participation in basketball compromised the safety of his classmates. However, in this instance, a reasonable adjustment has been made to balance the needs of all students so that Chad is able to participate, rather than by an exception to the Standards. It is very rare that reasonable adjustments cannot be made that balance the needs of all concerned.

• Reasonable adjustment

  Yes. In this instance, the school was able to comply with the Standards and find a solution that allowed Chad to participate without compromising the safety of his classmates.