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Australian Disability Clearinghouse on Education and Training

Unjustifiable Hardship

Under the Disability Discrimination Act 1992, an adjustment is not required if the making of the adjustment would impose ‘unjustifiable hardship’ on another person. However, the burden of proof falls on the person claiming unjustifiable hardship. A definition of unjustifiable hardship is outlined in the Act under section 11.

Subsection 10.2 of the Disability Standards for Education 2005 also provides that it is not ‘unlawful for an education provider to fail to comply with a requirement of the Standards if, and to the extent that, compliance would impose unjustifiable hardship on the provider.’ The burden of proof also falls with the institution to demonstrate unjustifiable hardship.

The concept of unjustifiable hardship does imply that some hardship is justifiable.

In determining unjustifiable hardship, all circumstances of the particular case need to be taken into account. The process should take account of the scope and objects of the Act and the Standards, particularly the fundamental principle of removing discrimination as far as possible, and of the rights and interests of all relevant parties.

Each case turns on its own facts; however, financial hardship for an institution is always closely weighed up against the benefits to the student with disability, and courts have seemed to place greater emphasis on the effects of the adjustments on the student with disability (and any other person concerned), than on financial considerations for the institution.

If the institution is unable to make reasonable adjustment because unjustifiable hardship has been proved, it should ensure that the student is made aware of the reasons, and is helped to find an alternative provider and/or course to meet their needs and capabilities.