The Disability Discrimination Act (DDA) imposes legal obligations on institutions not to discriminate against people with disability and has three aims:
- eliminate discrimination
- ensure equal treatment before the law
- promote community understanding.
The DDA covers direct and indirect discrimination in most areas of life in Australia and uses a very broad definition of disability. The Act defines discrimination in terms of less favourable treatment or less favourable consequences. It also promotes the development of disability standards such as the Disability Standards for Education and the development by organisations of Disability Action Plans.
In Section 22 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.
In practical terms this means that education and training providers must ensure that a person with a disability is not discriminated against and must make changes to any practices or procedures that deliberately or inadvertently discriminate. Organisations are encouraged under the Act to develop DDA Action Plans which can assist them in making the changes necessary to comply with the Act.
Direct and Indirect Discrimination
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 the same 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.
The definition of disability is intentionally broad and includes physical, intellectual, psychiatric, sensory, neurological and learning disabilities. Physical disfigurement and the presence in the body of organisms capable of causing disease (eg HIV) are also covered.
Duty of Care and Common Law Negligence
A duty of care is owed to all students by the educational or training authority and their staff. This duty exists at all times where there is a staff/student relationship. Authorities have a vicarious liability for the actions of staff (except where a member of staff is acting in a manner completely outside his or her duties) and in some cases for the actions of students.
Unjustifiable Hardship
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 an educational authority will depend on the circumstances of the case. It is a matter for fact, to be decided on a case by case basis, bearing in mind the purposes of the Act.
SECTION 22 (4) does not render it unlawful to refuse or fail to accept a person's application for admission as a student at an educational institution where the person, if admitted as a student by the educational authority, would require services or facilities that are not required by students who do not have a disability and the provision of which would impose an unjustifiable hardship on the educational authority.
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 teacher 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 (AHRC) keeps an updated list of complaint decisions under the Disability Discrimination Act including conciliated outcomes.
Definition of Disability
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; and
- 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; or
- of an associate, such as a friend, partner, carer or family member of the person.
Discrimination is also unlawful where it occurs because a person with a disability uses a palliative, therapeutic or assistive device is accompanied by a carer, interpreter, reader or assistant is accompanied by a guide or hearing dog or other trained assistant animal.
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 definition of disability in the DDA only applies for the purposes of the DDA. It does not change the definition of disability regarding eligibility for benefits or services under other legislation, such as the Disability Services Act, the Social Security Act or workers' compensation legislation.
The DDA does not limit protection to people whose disability is permanent or visible or which limits them in a "major life activity", as some State legislation requires. Not everyone with a disability experiences any significant functional limitation, or handicap, as a result. Similarly, protection is not limited to people who qualify for benefits or other government assistance for people with particular levels or types of disability. How a person's disability was acquired is not relevant to whether the DDA applies to that disability
ref HREOC Disability Rights FAQs