Document ID: chunk:federal_register_of_legislation:F2005L00767:body:0:p18
Version: federal_register_of_legislation:F2005L00767
Segment Type: other
Provision Reference: 
Character Range: 44397–47259

Standards.

Note   The relevant provisions of section 22 of the Act provide that an educational authority must not discriminate against a person in admission to an education institution, or as a student, on the ground of a disability of any of the person's associates.

Part 10 Exceptions

10.1 Exceptions

 (1) These Standards do not render it unlawful for an education provider to fail to comply with a requirement of these Standards if section 10.2, 10.3, 10.4 or 10.5 applies.

 (2) If an exception is invoked, it is the responsibility of the provider to demonstrate that the exception operates.

10.2 Unjustifiable hardship

 (1) This section does not apply to a requirement in Part 8 of these Standards.

 (2) These Standards do not render it unlawful for an education provider to fail to comply with a requirement of these Standards if, and to the extent that, compliance would impose unjustifiable hardship on the provider.

 (3) The provider must comply with the Standards to the maximum extent not involving unjustifiable hardship.

Note   Section 11 of the Act provides that, for the purposes of the Act, in determining what constitutes unjustifiable hardship, all relevant circumstances of the particular case are to be taken into account including:
(a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned; and
(b) the effect of the disability of a person concerned; and
(c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship; and
(d) in the case of the provision of services, or the making available of facilities — an action plan given to the Commission under section 64 of the Act.

The application of unjustifiable hardship should take account of the scope and objects of the Act and the Standards, particularly the object of removing discrimination as far as possible, and of the rights and interests of all relevant parties. In determining whether the exception of unjustifiable hardship can be relied on, all relevant circumstances of the particular case are to be taken into account.

The Standards generally require providers to make reasonable adjustments where necessary. In determining whether an adjustment is reasonable the factors in subsection 3.4 (2) are considered, including any effect of the adjustment on anyone else affected, including the education provider, staff and other students, and the costs and benefits of making the adjustment. There will be possible adjustments which are not reasonable. There is no requirement on providers to make unreasonable adjustments. The concept of unreasonable adjustment is different to the concept of unjustifiable hardship on the provider in section 10.2. Where the obligation to make a reasonable adjustment none‑the‑less imposes unjustifiable hardship on