for university students with disabilities a guide for academic staff

Contents | Part A | Part B | Part C | Part D | Graphics Version

part A:

What the law says

Disability Discrimination Act 1992 (DDA)
Some definitions
A national Code of Practice for Australian tertiary institutions

Dispelling the myths

The language of disability

Assistance for students and academic staff

Disability Officers
Practical support services
Other support staff

 

what the law says

The Disability Discrimination Act 1992 (DDA), requires the accommodation of students with disabilities in education and indicates what does and does not constitute discrimination in education. Following on from the DDA, after extensive consultations throughout Australia in 1996, the Australian government developed principles and guidelines for planning and delivery of services and recommended national minimum standards of service and support for students with disabilities. In 1998, Students with Disabilities: Code of Practice in Australian Tertiary Institutions, acknowledged and documented the real efforts that have been made in Australian universities to date.

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'.

 

Disability Discrimination Act 1992 (DDA)

The DDA came into effect in 1993. It had three aims.

• To eliminate, as far as possible, discrimination against persons on the grounds of disability in the areas of work, accommodation, education, access to premises, clubs and sport; in the provision of goods, facilities, services and land; in existing laws; and in the administration of Commonwealth laws and programs.
• To ensure, by means of legislation, that people with disabilities have the same rights to equality before the law as the rest of the community.
• To promote recognition and acceptance of the principle that people with disabilities have the same fundamental rights as the rest of the community.

The Act defines 'disability' in relation to a person and makes a distinction between direct and indirect disability discrimination. It acknowledges that 'different accommodation or services may be required by the person with a disability'.

The Act is available online. See page 42.

 

Some definitions

Disability

As defined by the DDA, 'disability' in relation to a person means:

• 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 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 judgment or that results in disturbed behaviour.

It 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

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:

1. To establish principles and guidelines for planning and delivery of services to students with disabilities across the tertiary education sector
2. To recommend national minimum standards of service and support
3. To identify and document examples of good practice in institutional responses to students with disabilities.

 

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