ADCET Webinar: Disability discrimination in the tertiary sector - the DDA, the DSE, and current disability discrimination controversies

Question 1: Could you define what test of reasonableness that the Court will use to determine what is / is not a reasonable adjustment? For example, we've heard from students that when students with ADHD requested lecture recordings on the basis of their working memory, Law lecturers are claiming that pressing 'record' would constitute unjustifiable hardship.

A: The test for reasonableness is found in DSE section 3.4(2):

(2) In assessing whether a particular adjustment for a student is reasonable, regard should be had to all the relevant circumstances and interests, including the following:

1. the student’s disability;
2. the views of the student or the student’s associate, given under section 3.5;
3. the effect of the adjustment on the student, including the effect on the student’s:
   1. ability to achieve learning outcomes; and
   2. ability to participate in courses or programs; and
   3. independence;
4. the effect of the proposed adjustment on anyone else affected, including the education provider, staff and other students;
5. the costs and benefits of making the adjustment.

Unfortunately, it is not possible to be more precise as what is reasonable in each case will depend on the facts of that case.

You could treat each paragraph as a question/s to be answered in each case. For example, ‘what is the student’s disability’. The answers to each question should be weighed against each other to work out reasonableness. For example, effect of adjustment on students with disability versus effect on others in the same class; benefit to student versus cost to institution.

Question 2: How do you identify, if an adjustment is required (beyond the conversation around what is reasonable), this was a point raised at the webinar last week - to actually ask if the reasonable adjustments are required.

A: See the answer to Question 1, above.

Question 3: Overwhelmingly, we have heard that university students (as well as lecturers themselves) are not even aware of the Standards' existence. Moreover, many Disability Practitioners have inconsistent levels of knowledge regarding the Standards, with some Practitioners not being aware that duty-holders have an implied obligation to provide adjustments within a reasonable timeframe. Therefore, some legal scholars have suggested that the Standards are posing more harm than good due to the bureaucratic hurdles that they are causing (especially as students bear the onus to establish a breach of the Standards, as opposed to the Standards imposing a positive duty). What are your thoughts on the current utility of the Standards? Do you believe that they are still fit-for-purpose, and if so, how do you believe that the Standards could better serve students with disability instead of posing administrative burden on them?

A: I would like to see some kind of external audit process to check for compliance. I doubt that this will happen though. Mandatory training would also be useful – but it would need to be thorough and regular, and I can’t see that happening either.

I would be reluctant to get rid of the DSE – while knowledge might be patchy across parts of the sector, my observation is that adjustments are being managed well by some institutions and it would be a shame to ‘throw the baby out with the bath water’. I haven’t come across the articles suggesting the DSE are doing more harm than good – shall try to find them!

Question 4: What about reasonable adjustments allowing students to record in class (similar to the question re: ADHD students) although the classes are interactive rather than just the lecturer talking? Students' privacy in class vs the reasonable adjustment allowing recordings in class potentially capturing also those students - which is more important? Or is this an issue involving audio vs video?

A: This is tricky. I would think that the consent of other students for the material to be recorded should be obtained. I am aware, though, that some students simply record without letting anyone know… Is there another alternative support that could be made available to the student with disability? For example, one semester I arranged for a student to have a regular one on one zoom consultation session where they could seek clarification on anything they missed/didn’t understand in the face-to-face class. In one of the units I teach, we do not routinely supply recordings of tutorials to any students. We have a discussion board where students who miss a tute/want more detail can post questions for answers, work for feedback. 

Question 5: Regarding the BKY case and time limits, if a Group of 8 university is waiving in-person attendance requirements for elite athletes but are refusing to allow disabled students to WFH, would this constitute a double standard and discrimination? Another way of asking it... given we were doing online lectures/seminars/tutorials etc. for a few years, and the technology is well developed and now fairly standard, can you think of any real reason why a student couldn't attend something virtually? (that isn't a practical) Why isn't this just standard now?

A: Potentially your example would amount to less favourable treatment on the ground of disability, and, as such, direct discrimination.

Re why isn’t online access standard – you make a good point. I suspect there may be push back on the point from some qualifying bodies? I know that there has been some concern re law students, for example, that some in person contact is desirable to ‘teach’ the interpersonal skills required for lawyering.  Having said that, we have an online law degree at my university but interactive in person zoom classes are part of it.

Question 6: Some students have alleged that many disability services staff are not well-trained on their specific disability and are devaluing their lived experience in favour of the Medical Model of Disability. For example, we heard at the Disability Royal Commission ('DRC') that some autistic students were told by Disability Services staff that they "sounded articulate for a person with Asperger's Syndrome". Furthermore, when the students raised that they felt offended by being described as a "person with Asperger's Syndrome" within their Academic Plans insofar they noted that the term Asperger's Syndrome was no longer used due to Dr Asperger's history as a potential Nazi sympthaiser. The DRC has noted that currently, the DDA has no prohibitions against vilification on the basis of disability in the same way that the Racial Discrimination Act ('RDA') prohibits vilification on the basis of disability. What can these students (who believe that their Academic Plans, written unilaterally by a Disability Services staff member who may not have the most training, are describing them in an insulting or offensive manner) do to remedy their experiences and their Academic Plans?

A: This sounds like a training/management issue where there is not good local monitoring of what staff are doing?

Perhaps the student could access the complaint channels set out in the institution’s policies and procedures – eg lodge a complaint with a student ombudsman.

While there is no disability vilification provision in the DDA, harassment on the ground of disability is prohibited. Harassment is not defined but is likely to be interpreted similarly to sexual harassment and would likely cover insult and the causing of offence.   I’m not aware of any disability harassment claim being litigated by a student though.

Moreover, vilificatory treatment may amount to discrimination. It could be argued that the student is insulted because of their disability when a student without disability would not be insulted?

Here is the section of the DDA that prohibits harassment:

37 Harassment in education

It is unlawful for a person who is a member of the staff of an educational institution to harass another person who:

1. is a student at that educational institution or is seeking admission to that educational institution as a student; and
2. has a disability;

in relation to the disability.

Question 7: Can a non-Australian student enrolled at an Australian University (offshore campus) file a federal/ state case?

A: I’m not a practising lawyer, let alone an expert in litigation, but I believe the answer to this question is ‘yes’. There would be obvious practical barriers to bringing the action, though, if the student was not in Australia.

Question 8: The slides include the question "should academics be better trained to respond to disability". But, for example, a disclosure of disability can be made to professional and technical staff, e.g. in student services type areas as well. Across the board training would be needed.

A: That’s a good point. At minimum, staff should be aware that they should report such a claim to their supervisor, and it should then be relevantly reported up the chain by the supervisor. See my comment below re ‘confidential’ disclosure. 

Question 9: I find it strange that if students disclose to a lecturer perhaps in confidence, there is an assumption that the academic will pass that information on.

A: I’m not an expert in privacy legislation and exceptions which allow/prevent disclosure – and which may vary from state to state – but if a student insisted that their disclosure was to be kept in confidence by the lecturer, then the lecturer should at minimum keep a note of the conversation (in case the student alleges disclosure and discrimination later) and alert the student to the availability of support and potential adjustments. The lecturer could suggest too that the student apply for special consideration for assessment.  If the student didn’t insist that the disclosure was in confidence, then that is an opportunity for the lecturer to ask whether they can pass the information on so that support and adjustments can be arranged.

Question 10: There is a big push back to exclusively F2F classes, seminars etc. (I speak at a HDR level, I am unsure if this is the case for undergrad but I would think so in some areas at least). Attendance is *mandatory*. You have to contact the seminar organiser and give a 'good reason' why you need to attend online. This doesn't sit well with me at all, as it forces disclosure in order to access the class, and it disincentivises sick students from staying home (putting others at risk of bugs). Do you think it is reasonable to expect that seminars and lectures include an online option (recorded at a bare minimum, if not live)?

A: I’m a law academic and not an expert in pedagogy, but I don’t see any law related reason why lectures can’t be recorded. There might be an occasional lecturer who doesn’t like it, I guess? At my university, lectures have been recorded since at least 2006. These days, auto-generated transcripts of recorded lectures should be easily available too. Interactive classes like seminars and tutorials are a bit different, though.  See my answer to Question 5, above. Re HDR students there does seem to be a perception (among some supervisors, anyway) that they are skiving off if they aren’t on campus, doesn’t there? 

Question 11: What should we do if there are 1) students who did not previously disclose their medical condition to us now claim that they actually do have a disability or condition, or 2) students who only recently are diagnosed with a learning disability and claims that it would have started in previous years of their enrolment in the course and that we should retrospectively adjust their previous assessment results or invalidate those results (if they didn't do well or have failed)?

A: That is a tricky one too. I expect the issue of making retrospective adjustments to results would be resolved by someone above my paygrade. I’m aware that students are sometimes allowed to wipe a subject from their academic record if they can satisfy the powers-that-be that the failing result was because of disability.

The law is pretty settled though that you can’t discriminate against someone on the basis of disability if you don’t know about the disability.  

Question 12: If students are offered the opportunity to disclose disability on admission, and don't, how does this affect an instance of "constructive knowledge"?

A: See my answer to question 11 re disclosure.

I infer that by constructive knowledge, you mean that the institution should have known about the disability? I think I suggested in the live seminar that disclosure to a staff member (who then has actual knowledge) might amount to ‘constructive knowledge’ in this sense by the institution (they should know because their employee knows).  Here is an extract from Bishop v Sports Massage School where disclosure is discussed.

The respondent claimed that the complainant had not done enough to bring his disability to its attention prior to the examination. Whilst it is true that the complainant was a little diffident in this respect, in my view he did sufficient to enable it to be found, as I do, that the imposition by the respondent of the requirement or condition complained of was "not reasonable having regard to the circumstances of the case" for the purposes of s.6(b) of the DDA. It was admitted by the respondent's witnesses that the complainant had told his lecturer, Ms Hare, about his dyslexia (which had only been diagnosed in April 1998) from time to time between April and July 1998. It was also admitted that one week prior to the examination (if not before) the complainant had endeavoured to hand to Ms Hare a copy of the report of the educational psychologist in which specific recommendations for modification of examination requirements for the complainant were made. There was considerable dispute about what was said and done on that occasion, but there was no dispute that, as a result of what occurred, the lecturer knew that a report about the complainant's dyslexia existed and that the head of the School was made aware of this too.

If you mean ‘constructive knowledge’ in the sense, though, that a lecturer, for example, should have known by the student’s behaviour (for example) that they had a disability – I think it is unlikely that that would be enough.  Lecturers aren’t experts in disability or recognising it.

Question 13: Increasingly we are seeing students wanting to bring assistance animals on-campus. This is obviously not an issue if the animal is accredited but there are issues of students wanting to bring non-accredited animals on campus (E.G. birds). Also, how is it best managed if there are other students in-class have a phobia about the particular animal due to a previous negative experience(s)

A: another tricky one.

Legislation re assistance animals varies from state to state, but I’ll focus on the DDA.

Here is the definition of assistance animal in DDA s 9:

(2) For the purposes of this Act, an assistance animal is a dog or other animal:

1. accredited under a law of a State or Territory that provides for the accreditation of animals trained to assist a persons with a disability to alleviate the effect of the disability; or
2. accredited by an animal training organisation prescribed by the regulations for the purposes of this paragraph; or
3. trained:
   1. to assist a person with a disability to alleviate the effect of the disability; and
   2. to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.

Paragraph 2(c) of the definition, which refers to animals which are not accredited but nevertheless ‘trained… to assist’, is very broad and could pick up a bird.

Section 9 needs to be read in conjunction with s 54A which sets out stringent requirements for the management of the animal and creates an exception allowing discrimination (i.e. refusing the assistance animal) on public health grounds

54A Assistance animals

(1) This section applies in relation to a person with a disability who has an assistance animal.

Note: For when a person with a disability has an assistance animal, see subsections 9(2) and (4).

(2) This Part does not render it unlawful for a person to request or to require that the assistance animal remain under the control of:

1. the person with the disability; or
2. another person on behalf of the person with the disability.

(3) For the purposes of subsection (2), an assistance animal may be under the control of a person even if it is not under the person’s direct physical control.

(4) This Part does not render it unlawful for a person (the discriminator) to discriminate against the person with the disability on the ground of the disability, if:

1. the discriminator reasonably suspects that the assistance animal has an infectious disease; and
2. the discrimination is reasonably necessary to protect public health or the health of other animals.

(5) This Part does not render it unlawful for a person to request the person with the disability to produce evidence that:

1. the animal is an assistance animal; or
2. the animal is trained to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.

(6) This Part does not render it unlawful for a person (the discriminator) to discriminate against the person with the disability on the ground that the person with the disability has the assistance animal, if:

1. the discriminator requests or requires the person with the disability to produce evidence referred to in subsection (5); and
2. the person with the disability neither:
   1. produces evidence that the animal is an assistance animal; nor
   2. produces evidence that the animal is trained to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.

(7) This Part does not affect the liability of a person for damage to property caused by an assistance animal.

Re how to manage to conflicting obligations to a person with an assistance animal and a person with an animal phobia, that would need to be managed on a case by case basis. Can they be placed in different classes, for example?

Question 14: About assistance animals, Section 9 of the DDA notes the requirements that the service dog may need to satisfy. However, NSW, Victoria, NT, and Tasmania do not have state-based accreditation schemes (e.g. the Guide, Hearing, and Assistance Dogs Act 2009 (Qld) and other state-affiliated Public Access Tests). What can students in NSW, Victoria, NT, or Tasmania do if their institutions choose to strictly define (in their policy guidelines) assistance animals as guide dogs and hearing dogs *only*? e.g. epilepsy seizure alert dogs.

A: I think you know much more about the states’ assistance animal legislation than I do!

Note though that institutions in NSW, Victoria, NT and Tasmania are still subject to the DDA which defines assistance animals more broadly. Policies that limit assistance animals to dogs, if they are enforced, would potentially put the institutions in breach of the DDA. Note that the DDA does not insist on ‘accredited’ animals – see my answer to question 13, above.

Question 15: My understanding of articulating inherent requirements is to give the student information so that they can make informed decisions as to whether or not they believe they will be able to meet these requirements before potentially wasting their time, effort, money, etc. on a degree that they are not able to complete.  They should never be used by the institution to deny entry to a degree for someone with disability. Do you see any difficulty in them being used as a tool in this way?

A: Inherent requirements statements have a clear utility in forcing ‘owners’ of courses to actually confront and articulate what is really inherent in their courses rather than to simply bluntly and broadly say that a particular student ‘couldn’t possibly do’ the course. They also support the reasonable adjustment process because they allow a genuine assessment of whether a particular adjustment is reasonable or unreasonable.

I guess, as you’ve suggested, an appropriate use of the statements might be to inform a full and frank discussion with  a potential student about what is ‘inherent’ in a course so that an otherwise qualified student with a disability can decide whether to ‘risk’ enrolment.  

We might not think about it this way, but you could argue that ATAR scores are a proxy for the ‘intellectual ability’ required to meet the inherent intellectual requirements of a particular course?

Question 16: Hold on, does that example of the medical student with a mental health issue mean that, for example, flying schools should refuse students who have a condition that would never allow them to become a pilot? (e.g. ADHD, depression, autism preclude you from getting a commercial or air transport licence)

A: I guess my point was a general one that universities shouldn’t automatically refuse entry to a degree if a student will never be able to ‘qualify’ as the professional the degree is designed to train. The degree may have other benefits for the student and the university shouldn’t be a ‘gatekeeper’.

I’m not across all of the intersections between qualifying bodies and tertiary courses, though. I know that for law, the relevant qualifying body has to accredit the degree before it can run. It may be the same for flying schools? I also don’t know the range of flying licences that are available, but I would think there would be pretty strict regulation of who can fly a plane even at a flying school. The unjustifiable hardship exemption may kick in to protect a flying school who is sued too.

Qualifying bodies are subject to the DDA too and should consider reasonable adjustments that might allow registration.

Once a person is working, there is a relevant exemption that allows, for example, a refusal to employ if a person cannot perform the ‘inherent requirements’ of the job even if reasonable adjustments are made.

I remember speaking to a group of TAFE teachers once who told me that they had trained a blind chef. And you would have heard about Dr Dinesh Palipana who studied medicine at GU and who now works on the Gold Coast.

See my answer to question 17 too.

Question 17: What about requests for fitness to practice documentation prior to going on pracs? I am aware of certain exemptions under the DDA such as superannuation / insurance, infectious diseases for public health and safety. What if a student has a medical condition such as seizures which becomes a safety issue on pracs such as education or medical / health sciences?

A: In the live seminar I explained direct and indirect discrimination. Where safety is in issue, that may trump the rights of the person with disability. Refusal to allow a person to attend a prac, might not be direct discrimination because the true basis of the decision is safety concerns and not the disability (see the Purvis case). It might not be indirect discrimination either because of the ‘reasonableness’ limit which would pick up safety.

Reasonable adjustment should be considered in such a situation though – is there an adjustment available that would mitigate the risk to others and allow the person to go on the prac?  Dr Dinesh is a good example here.

Questions 18 and 19: Some submissions at the Disability Royal Commission ('DRC') have stated that the DDA (and in turn the DSE) lack teeth because they do not institute a positive duty to provide adjustments and because they, unlike the Sex Discrimination Act, do not institute a positive duty to proactively prevent a workplace environment that is hostile towards a protected attribute. Do you believe that amending the legislation to institute a positive duty to provide adjustments and to prevent harassment (on the basis of disability) could change the status quo? If regional and rural students are a Regional Education Commissioner, we should have a Disability Education Commissioner for compliance

A: See my answer to question 3, above, too.

It will be interesting to see how the new positive duty re sexual harassment in the SDA and monitoring by the Australian Human Rights Commission will work.

Reasonable adjustment under the DDA and DSE is a variety of positive obligation but without external monitoring it is not as effective. As Question 3 notes, a student still has to make a complaint to see it ‘enforced’.