Legislation and Standards
There is a range of federal and state legislation providing equitable treatment for people with disability, which has implications for education and training organisations. A core piece of legislature is the Commonwealth Disability Discrimination Act 1992 (DDA), which imposes legal obligations not to discriminate against people with disability.
Many individuals, including students, are not aware that their condition, illness or injury may be considered a disability under anti-discrimination legislation. The DDA uses a very broad definition of disability, encompassing physical, sensory, mental and intellectual disability; it defines 'disability', in relation to a person, as1:
- total or partial loss of the person's bodily or mental functions, or
- total or partial loss of a part of the body, or
- the presence in the body of organisms causing disease or illness, or
- the presence in the body of organisms capable of causing disease or illness, or
- the malfunction, malformation or disfigurement of a part of the person's body, or
- a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction, or
- a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgement or that results in disturbed behaviour
and includes a disability that:
- presently exists, or
- previously existed but no longer exists, or
- may exist in the future, or
- is imputed to a person.
Discrimination within the Act relates to less favourable treatment or consequences and covers direct and indirect discrimination.
How does the DDA apply to education?
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.
In practical terms, this means that education and training providers must ensure that a person with 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 action plans which can assist them in making the changes necessary to comply with the Act.
Disability Standards for Education
The Disability Standards for Education clarifies obligations under the DDA in relation to education and training. The effect of the Standards is to give students and prospective students with disability the right to education and training opportunities on the same basis as students without disability. This includes the right to comparable access to services and facilities and the right to participate in education and training unimpeded by discrimination, including stereotyped beliefs about the abilities and choices of students with disability. However, the measures may not cover all eventualities and compliance with them may not be sufficient to prevent discrimination. The Standards cover:
- the rights of students in relation to education and training
- the responsibilities of education providers
- measures which if implemented will be evidence of compliance and provide a defence against litigation.
In addition each section of the Standards is accompanied by guidance notes which are intended to assist in interpreting them.
The DDA, through the Disability Standards for Education, requires education providers to take reasonable steps to ensure the student with disability can participate in education on the same basis as a student without disability, and specifically to ensure that:
- curriculum, teaching materials and assessment and certification requirements for the course or program are appropriate to the needs of the student and accessible to him/her
- course delivery modes and learning activities (including those not occurring in a classroom) take account of the learning capacities and needs of the student and are sufficiently flexible for the student to be able to participate
- where a course includes an activity in which the student cannot participate, an alternative activity is offered that provides an equivalent experience within the context of the overall aims of the course
- study materials are available in an appropriate format for the student and the student is not disadvantaged by the time taken for any conversion that is required
- teaching strategies are adjusted to meet the learning needs of the student and address any disadvantage in the student’s learning that results from his or her disability. This includes the provision of additional support or the development of disability-specific skills
- assessment procedures are adapted to enable the student to demonstrate the knowledge, skills or competencies being assessed.
Post-secondary education providers are also required to take reasonable steps to ensure that a student with disability is able to participate and use facilities and services on the same basis as a student without disability. 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. Individual staff members can be held liable if it is found that they deliberately or inadvertently discriminated against a student.
What is the difference between 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 (e.g. 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 (e.g. 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 disability who has lodged a complaint under anti-discrimination legislation and/or discriminate against people because of their association with a student with disability.
What would constitute unjustifiable hardship?
Discrimination in education is unlawful except if the person requires adjustments which would impose unjustifiable hardship on the educational institution. Whether adjustments required by a student with disability pose unjustifiable hardship for an education provider will depend on the circumstances of the case.
There are two stages in 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 institute 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.
Preventing Harassment and Victimisation
The Disability Standards for Education also requires education providers to develop and implement strategies and programs to prevent harassment or victimisation of students with disability. Specifically, they must2:
- enable a prospective student to seek admission to, and enrol in the provider, without undue difficulty
- make information that addresses the needs of students with disabilities accessible to them in a range of formats - within a reasonable time frame and in a way that enables them to make informed choices about course selection and progression
- consult with the student, review her/his course in the light of this information and implement any reasonable adjustments required whilst maintaining academic integrity
- provide additional support to the student and, where necessary, assist him or her to achieve intended learning outcomes
- inform staff and students about the obligation not to harass or victimise students with disabilities, take appropriate action if harassment or victimisation occurs and provide complaint mechanisms for students
- ensure that staff are aware of the specialised services available and are able to assist the student to access such services
- provide specialised services for the student, where necessary, including collaborative arrangements with specialised service providers
- provide any necessary specialised equipment to support the student in participating in the course or program
- provide appropriately trained support staff, such as interpreters, note-takers and aides, to ensure equitable access to education.
Requests for adjustments to standard assessment practice may occur for students for whom the course design does not automatically provide full access. Reasonable adjustments refer to a ‘measure or action taken to assist a student with disability to participate in education and training on the same basis as other students’. An adjustment is considered reasonable if it achieves this purpose while taking into account students’ learning needs and balancing the interests of all parties affected, including those of the student with disability, the education provider, staff and other students. Refer to the Reasonable Adjustment section for further information.
Work Health and Safety
Educational institutes are required by law to protect all staff, students and visitors from injuries and illness as per work, health and safety laws which exists in each state and territory in Australia3. The DDA does not set out explicitly how it relates to health and safety; however, the ability to work safely (i.e. without reasonable risk to others) is identified by the Australian Human Rights Commission as a requirement4. The DDA does, however, identify that education and training providers are liable for the actions of employees and agents. Clear policies and effective staff training are key risk-minimisation strategies to reduce discrimination and harassment.
Research has clearly identified that disability does not pose an inherent safety risk5. The fact that a student or staff member has a disability does not excuse them from complying with reasonable application of reasonable rules. There are a number of strategies for accommodating the needs of students with disabilities in laboratory and field-work.
1 Disability Discrimination Act 1992 (Cwth) (Aust.). Retrieved from http://www.austlii.edu.au/au/legis/cth/consol_act/dda1992264/index.html#s4
2 Commonwealth of Australia 2006. Disability Standards for Education 2005 plus Guidance Notes. Accessed on 19 November 2014. Retrieved from http://docs.education.gov.au/system/files/doc/other/disability_standards_for_education_2005_plus_guidance_notes.pdf
3 Commonwealth of Australia 2013. WHS/OH&S Acts, Regulations and Codes of Practice. Accessed on 20 November 2014. Retrieved from http://www.business.gov.au/business-topics/employing-people/workplace-health-and-safety/Pages/whs-acts-regulations-and-codes-of-practice.aspx
4 Australian Human Rights Commission (n.d.). Employment and the Disability Discrimination Act. Part 1. Accessed on 19 November 2014. Retrieved from https://www.humanrights.gov.au/employment-and-disability-discrimination-act-part-1#otherlaw (June 2019 - link is broken. Information could not be found on the AHRC website)
5 Doyle, C. & Robson, K. 2002. Accessible Curricula: Good Practice for all. Cardiff: UWIC Press. Retrieved from http://www.adcet.edu.au/resource/5198/accessible-curricula-a-good-practice-guide/