Creating Accessible Teaching and Support

A range of federal and state legislation has implications for universities in providing equitable treatment for people with disability. Of primary importance is the Disability Discrimination Act (DDA), which imposes legal obligations not to discriminate against people with disability.  There is complementary anti-discrimination legislation in each state and territory.

The DDA protects individuals in Australia from direct and indirect discrimination based on disability. It covers many parts of public life, such as employment, education and building access. It also promotes the development of disability standards such as the Disability Standards for Education and the development of Disability Action Plans.

Disability discrimination occurs when people with disability are treated less fairly than people without a disability, or when people are treated less fairly because they are relatives, friends, carers, co-workers or associates of a person with a disability. The Act also makes harassment on the basis of disability against the law.

If a student meets the essential entry requirements, then educators must make "reasonable adjustments" to the course design or delivery to enable the student to have a fair chance of participating unless this would impose an unjustifiable hardship on the university.

Section 22 of the DDA prohibits discrimination associated with enrolment in or admission to any school, college, university or other training or educational institution. This also includes an environment conducive to learning or extra-curricular activities. This may necessitate making reasonable adjustments to teaching practices or environment. It should be noted that the outcome of the course is irrelevant. 

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

• total or partial loss of the person's bodily or mental functions
• total or partial loss of a part of the body
• the presence in the body of organisms causing disease or illness
• the presence in the body of organisms capable of causing disease or illness
• the malfunction, malformation or disfigurement of a part of the person's body
• a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction a disorder
• illness or disease that affects a person's thought processes
• perception of reality, emotions or judgment or that results in disturbed behaviour.

The DDA makes it unlawful to discriminate against a person because of a disability:

• which he or she has
• which he or she used to have
• which he or she may have in the future
• which is imputed to him or her
• of an associate, such as a friend, partner, carer or family member of the person.

A person does not gain any special rights or benefits by coming within the definition of disability under the DDA - only the right not to be discriminated against.

The DDA provides protection against both direct and indirect forms of discrimination.

Direct discrimination means treating people with a disability less favourably than people without a disability would be treated under thesame circumstances.

Indirect discrimination includes:

• where there is a condition or requirement imposed (eg in the format of assessment in a subject) which may be the same for everyone but which unfairly excludes or disadvantages people with disabilities in a manner that is unreasonable

• when a person treats another unfavourably on the basis of a characteristic that appertains generally to people who have such an impairment (eg a lecturer refuses to allow a student with a vision impairment to undertake laboratory work because of concerns that blind people are a safety risk).

It is also unlawful for a person who is a staff member of an educational institution to harass, victimise (threaten or treat unfavourably) a student with a disability who has lodged a complaint under anti-discrimination legislation and/or discriminate against people because of their association with a student with a disability.

Discrimination in education is unlawful except, inter alia, if the person requires adjustments which would impose unjustifiable hardship on the educational institution.  Whether adjustments required by a student with a disability pose unjustifiable hardship for a university will depend on the circumstances of the case.

There are two stages to the process of determining whether there is unjustifiable hardship.  Firstly, adjustments the student requires are assessed and, secondly, the effect or likely effect of the student's disability - or any adjustments required - on the educational authority and its staff, other students and the student with a disability of his or her associate is assessed, including:

• any benefits the adjustment may have for other people - for example, flexible teaching methods to accommodate a student with a disability may enhance learning for other students
• any disadvantages the adjustment may have for others - for example, a student with a learning disability may require more teaching resources which detract from the resources available for other students
• the effect of the disability of a person - for example, other students may learn "signing" to improve their communication with a student with a hearing impairment.
• the costs involved in making the adjustment, taking into account the financial situation of the educational authority - for example, the cost of providing a modified computer for a person with a visual impairment may be beyond the financial resources of a small secretarial training college but is a minor expense for a university.

No single factor alone is likely to constitute unjustifiable hardship. All relevant factors must be weighed up to see if, in all the circumstances, there is unjustifiable hardship.

The Australian Human Rights Commission keeps an updated list of complaint decisions  under the Disability Discrimination Act including conciliated outcomes.