Recommendations 4.25 and 4.26
1. |refer to the Discussion Paper for the Review of the DDA at Pages 47 and 48 - Changing
the term ‘reasonable adjustment’ and a stand-alone duty to make adjustments.
- The position put forward in the Discussion Paper to remove the word reasonable from reasonable adjustment is flawed. There should be no change to the term reasonable
adjustment.
- At page 48 dot point 2 under ‘Stand-along duty to make adjustments’ — it is stated that ‘schools are not agreeing to adjustments requested by parents, students and allied health, It uses a reference to the Royal Commission for the statement.
a.
The statement assumes that what the parent, student or allied professional is asking for is reasonable in the circumstances.
Removing the reasonableness requirement will skew the considerations related to the adjustment.
A school does not have a duty to provide an unreasonable adjustment, which is different than not providing the reasonable adjustment because of unjustifiable
hardship
- The Disability Standards for Education 2005 (DSE) identify the difference between an unreasonable adjustment and unjustifiable hardship.
a.
inthe note for 3.4 Reasonable Adjustments, page 17 of the DSE it states ‘There is no requirement to make unreasonable adjustments… The concept of unreasonable adjustment is different to the concept of unjustifiable hardship on
the provider’
The note goes onto state ‘In determining whether an adjustment is reasonable the factors in 3.4(2) are considered, including any effect of the proposed adjustment on anyone else effected, including the education provider, staff and other students, and the costs and benefits of making the adjustment.’
ls it to be understood from the statement in the Discussion Paper that when parents, students or practitioner requests an adjustment they need to factor in those other matters that go to determining whether or not it is a reasonable adjustment.
The fact is they do not consider these other matters because their proper and primary focus is their preference for the adjustment they consider to be the most appropriate for their son or daughter.
- Itis the duty of the provider to make the reasonable adjustment. In doing so the DSE also provides a duty upon the provider for it to consult with the student and/or parent.
a. Schools consult and in doing so must consider the request of the student or parent and the information they have from a practitioner. There is an obligation and an impetus for the School to take into consideration the student or parents request in determining what the reasonable adjustment should be.
b. In varying or providing a different reasonable adjustment the school will need to advise the student and/parent why they are not adopting the adjustment preferred by them and why the school is using the reasonable adjustment that it is. ,
-
The removal reasonable with respect to an adjustment will remove an element of fairness and practicality and a more multi dimensional consideration of reasonableness in an objective manner.
- I|question the assertions about confusion in interpretation and application. The
Discussion Paper states and page 47 —- The Royal Commission observed some misconception (misunderstanding) which is then equated to confusion that ‘may suggest to the duty holder, that they should consider whether a potential adjustment is ‘reasonable’ in the circumstances before considering whether the adjustment would impose unjustifiable hardship,
a. As stated above there is a difference between reasonable adjustment and unjustifiable hardship.
- The discussion around confused or better interpretation goes onto refer to, ad page 48 top para - ‘Removing ‘reasonable’ will bring the provisions into line with how the courts have interpreted the law on providing adjustments currently,
a. Isn’t the interpretation of the Act about what Parliament wants it to mean — clarifying the intent and purpose. {t seems to that setting the policy to align what the courts think it should be interpreted as is the wrong way around.
b. Any clarity to how it is to be interpreted through a step process and adding criteria for consideration to ‘reasonable’ may be a more Parliament policy driven response.
9. | note that none of the State jurisdictions are removing the intent, element or test that
consideration be given to appropriateness of the accommodation to be made in the circumstances.