Discrimination
Disability discrimination
occurs when a person discriminates against another person on the grounds
of a disability by treating or proposing to treat that person less favourably
than they would treat a person without a disability in 'circumstances
that are the same or are not materially different'.
Discrimination also
occurs where a person is treated less favourably because of:
- a palliative
or therapeutic device;
- an auxiliary
aid;
- being accompanied
by an interpreter, reader, assistant or carer who provides services
to the person with a disability;
- being accompanied
by a guide dog or any animal trained to assist the person with a disability.
Indirect
discrimination
Indirect disability
discrimination is where the person with a disability is required to
comply with a requirement or condition:
- with which a
substantially higher proportion of persons without the disability
comply or are able to comply; and
- which is not
reasonable having regard to the circumstances of the case; and
- with which the
aggrieved person does not or is not able to comply.
Discrimination
and education
The DDA states that
it is unlawful for an educational authority to discriminate against
a person on the grounds of the person's disability or a disability of
any of the other person's associates by:
- refusing or
failing to accept the person's application for admission as a student;
or
- in the terms
or conditions on which it is prepared to admit the person as a student.
It is also unlawful
for an educational authority to discriminate against a student on the
grounds of the student's disability or a disability of any of the student's
associates:
- by denying the
student access, or limiting the student's access, to any benefit provided
by the education authority; or
- by expelling
the student or by subjecting the student to any other detriment.
Disability
Action Plans
Where an institution
prepares and implements an action plan, the Act outlines the provisions
that must be included in such a plan:
- policies and
programs to achieve the objects of the Act;
- communication
of these policies and programs to persons within the service provider;
- review of practices
within the service provider with a view to identification of any discriminatory
practices;
- setting of goals
and targets to measure the success of the plan in achieving the objects
of the Act;
- the appointment
of persons within the service provider to implement the above.
Disability Action
Plans may also be lodged with the Human Rights and Equal Opportunity
Commission (HREOC). HREOC website, see page 42.
Reasonable
accommodation or adjustment
The Human Rights
and Equal Opportunity Commission Act 1986 has scheduled to it a United
Nations Declaration on the Rights of Disabled Persons (1978) which recognises
that disabled persons are entitled to 'the right to any necessary treatment,
rehabilitation, education, training and other services to develop their
skills and capacities to the maximum'.
The concept of reasonable
adjustment or accommodation covers:
- campus design
and physical access;
- admissions procedures
and recruitment practices;
- the provision
of equipment and access;
- study course
design;
- teaching methods
and strategies;
- provision of
learning and communication aids as required;
- assessment;
- graduation;
and, when necessary,
- other considerations
in relation to conditions and rules in degree programs.
These accommodations
should be made wherever they are reasonable and do not cause undue or
unjustifiable hardship to the university. They require creativity and
flexibility by both academic and administrative staff in dealing with
the specific needs of the student who has a disability.
Unjustifiable
hardship
It is not discrimination
where the institution is able to prove that to provide services and
facilities that are not required by students who do not have a disability
would cause 'unjustifiable hardship' to the institution.
In determining whether
unjustifiable hardship was a defence, the Commission (HREOC) would take
into account:
- the nature or
the benefit or detriment likely to be accrued or suffered;
- the effect of
the disability on the person concerned;
- the financial
circumstances and estimated amount of expenditure required to be made;
- the institution's
Disability Action Plan.
Within this legal
framework and under the national Code of Practice (see below), all prospective
or current students with disabilities are eligible to have their needs
assessed in order to remove any barriers to success that currently exist
in the university environment.
Equity
and social justice in tertiary education
Universities have
a responsibility to provide services and facilities that ensure an equitable
educational context for students with disabilities while maintaining
privacy and confidentiality, respect and dignity, and the highest standards
of equity and social justice. This involves ensuring that:
- students participate
in deciding policies, procedures and services that are designed to
meet their individual and collective needs;
- parity with
other students is maintained in relation to choosing an institution,
courses, subjects and modes of study; as well as
- anticipating
and meeting the requirements of students who have a disability and
who identify their disability to the institution.
Complaints
A person wishing
to make a complaint of discrimination and/or harassment under the DDA
notifies the Commission (HREOC) which will then attempt to reach a settlement
by conciliation. If unsuccessful, the issue may be taken to the federal
court. Possible outcomes include: payment of damages, reinstatement
or promotion, apology, and/or changes in policy or practices.
A national
Code of Practice for Australian tertiary institutions
A recent publication,
Students with Disabilities: Code of Practice for Australian Tertiary
Inst-itutions was published in 1998. It is available online. See page
42.
The Code
of Practice has three goals:
- To establish
principles and guidelines for planning and delivery of services to
students with disabilities across the tertiary education sector
- To recommend
national minimum standards of service and support
- To identify
and document examples of good practice in institutional responses
to students with disabilities.
