Law and Anti-Discrimination

Law and Anti-Discrimination

This paper will discuss disability discrimination and the legislative and non-le
gislative tools used to combat it. The major piece of federal legislation, the
Disability Discrimination Act (1992) will be examined in considerable detail, an
d an attempt will be made to analyze its strengths and weakness, with reference
to various opinions put forward by individuals and organizations concerned with
its implementation.
Particular emphasis will be placed upon the compliance of the Act. The issues t
hat have been subject to public debate will be discussed, including arguments fo
r and against compliance processes that have been suggested by governmental bodi
es.
A comparison will be made between measures used in other nations to counter disa
bility discrimination, with the view of making suggestions on improving the proc
esses proposed in Australia.
Possible models for Compliance in Education will then be listed, and finally an
opinion will be made as to which of these models would be the most appropriate,
with consideration as to the circumstances in Australia today.
What is Disability Discrimination?
Section 5 of the Disability Discrimination Act 1992 (Cth) outlines the meaning o
f Disability Discrimination. Disability discrimination happens when people with
a disability are treated less fairly than people without a disability. Disabil
ity discrimination also occurs when people are treated less fairly because they
are relatives, friends, co-workers or associates of a person with a disability.
It is against the law to discriminate against someone if they have a disability
in various areas of life. All governments in Australia have responsibilities un
der the DDA to ensure that this type of discrimination does not occur. The Fede
ral Disability Discrimination Act makes disability discrimination against the la
w, covering a broad range of areas in life including employment (s.15), educatio
n (s.22), access to premises (s.23), accommodation (s.25), buying land (s.26), s
port (s.28) and many more. The definition of "disability", as stated in s.4 of
the Act, is very broad, including disability of the following kinds; physical, i
ntellectual, psychiatric, neurological and physical disfigurement. The DDA also
protects people like relatives, friends, carers and co-workers of a person with
a disability if they are discriminated against because of the person's disabili
ty. Harassment because of disability, such as insults or humiliating jokes, is
unlawful (under ss. 35-40 of the Act) in employment, education and in the provis
ion of goods, services and facilities.
The DDA was passed by the Commonwealth Parliament in 1992. The objectives of th
e DDA, as set out in s.3, is to eliminate discrimination against people on the g
rounds of disability, to ensure that people with disabilities have the same righ
ts before the law as the rest of the community, and to promote the principle tha
t people with disabilities have the same rights as the rest of the community. T
he DDA makes both direct and indirect discrimination unlawful. Direct discrimin
ation involves treating a disabled person less favourably. Indirect discriminat
ion occurs when a disabled person is required unnecessarily to comply with rules
and conditions. Under the DDA, a person who considers that he or she has exper
ienced disability discrimination can make a complaint. Section 33 of the DDA co
ntains provisions for the making of standards in areas such as education, where

this could provide a more systematic way of addressing possible disability discr
imination.
The Human Rights and Equal Opportunity Commission (HREOC), (its functions are se
t out in s.67 of the DDA), has held that the DMA covers State Government educati
on departments as well as other educational institutions.
This includes all p
ublic and private educational institutions, primary and secondary schools, and t
ertiary institutions such as TAFE, private colleges and universities.
Section 22 of the DDA states that educational institutions must offer a person w
ith a disability the same educational opportunities as everyone else. This mean
s that if a person with a disability meets the necessary entry requirements of a
school or college he or she would have just as much chance to study there as an
yone else. Amongst the many types of disabled people protected are those who are
unable to read, write or communicate effectively because of learning disabiliti
es, and those who are unable to concentrate or pay attention properly. Instituti
ons must base their decisions on a person's ability to meet the essential requir
ements of the course. They should not make assumptions about their potential be
cause of a disability. Section 22 of the DDA protects people with a disability
against discrimination in education in the following areas:
Refusal or failure to accept an application for admission form a person with a d
isability, or accepting a person with a disability as a student on less favorabl
e terms or conditions than others.
Denying or limiting access to people with a disability.
Expelling a person because of a disability.
Subjecting a person with a disability to any other detriment.
In s.37 of the Act, it states that it is unlawful to make humiliating comments o
r actions about a person's disability, such as insults, or comments or actions t
hat create a hostile environment.
If a person with a disability meets the essential entry requirements of the part
icular institution, then the institution must make changes or "reasonable adjust
ments" if that person needs them to perform essential tasks. For example, if a
student is unable to perform experiments in chemistry class because the bench is
too high, the institution must provide lower tables, or make other adjustments
to enable the student to perform the required task. Adjustments would include:
Modifying educational premises. For example; making ramps, modifying toilets and
ensuring that classes and rooms are made accessible to the person with the disa
bility. (s.23)
Modifying or providing equipment. For example; lowering tables, enlarging comput
er screens and providing specific computer software. (s.24)
Changing assessment procedures. For example; allowing for alternative examinatio
n methods such as oral exams, or allowing additional time. (s.24)
Changing teaching methods. For example; providing study notes or research materi
als in different formats. (s.30)
Issues arise when the institution refuses to admit a student with a disability.
The institution may not be able to provide essential support mechanisms or stud
y aids to meet the disabled person's needs. Similar issues arise when a student
is excluded or suspended after a certain period in an institution. Many studen
ts with a disability have reported discrimination and blatant discouragement of

their participation by teachers and principles. However, the DDA does not requ
ire changes to be made if this will cause major difficulties or unreasonable cos
ts to an educational institution. This is called "unjustifiable hardship". Be
fore they can claim that adjustments are unjustified, institutions need to:
1. Thoroughly consider how an adjustment might be made,
2. Discuss this directly with the person involved, and
3. Consult relevant sources of advice.
Case law suggests that, in addition to the adherence of the general rules of eli
mination of discrimination, a reasonable balance between the rights of the stude
nt with a disability and the rights and well being of the other students and tea
chers need to be taken into account. This principle was taken into account in L
v Minister for Education for Queensland (1996) EOC, where it was held that the
students behavioral problems caused "unjustifiable hardship" for the student's t
eacher: "Costs alone would not necessarily persuade me that unjustifiable hardsh
ip existed; the greater problem is that even with that level of resource, as lon
g as L remains in the regular classroom, disruption of other children is inevita
ble, at least until her skills are improved. Even the process of intervention, w
ith withdrawal of her from the classroom when she is noisy or requires toileting
, must of itself be disruptive to other children." ( 92-787 at 78,821). An impo
rtant factor to be considered in determining the existence of "unjustifiable har
dship" is outlined in the DDA s11(a), where it states that the "nature and benef
it or detriment likely to accrue or be suffered by any persons concerned" is to
be taken into account.
DDA Education Standards
Section 33 of the DDA includes provisions for the making of standards in educati
on, where this could provide a more systematic way of avoiding disability discri
mination. Standards under the DDA have the potential to make people's rights an
d obligations under the DDA easier to understand. This is a compliance mechanism
that works by setting out in much greater detail what must be done to obey the
law. If done well, a Disability Standard can help providers comply with the DDA
through clarifying their obligations and by setting out how they can fulfill th
ose obligations.
A Disability Standard for Education has been prepared by the Ministerial Council
of Education, Employment, Training and Youth Affairs (MCEETYA). The MCEETYA se
t up a Taskforce to consider whether education standards under the DDA could be
developed. The Taskforce includes representatives of State Government and non-g
overnment school sectors, higher education sectors and people with disabilities.
From 1997, the council worked on developing the draft combining both principle
and performance based standards. The standards have since been re-drafted and
address five key areas:
1. enrolment;
2. participation;
3. curriculum development, accreditation and delivery;
4. student support services; and
5. elimination of harassment and victimization
The draft Disability Standards for Education were negotiated by the members of t
he Taskforce and finally presented to MCEETYA in March 2000. Council agreed to

further develop the consultation process with use of the draft standards.
HREOC has the responsibility for the administration of the DDA, and maintains a
list of current Action Plans on its web site. Standards under Section 31 of the
DDA has the power of law and are thus binding on those to whom they apply. Com
plaints about discrimination on the grounds of disability can be made to HREOC,
and will be assessed under the standards in the Act.
The DDA includes compliance processes in order to ensure that disability discrim
ination law is obeyed.
These compliance processes have raised many issues amongst academic educators, s
cholars and advocates of disability rights. Concerns have been raised by disabi
lity organizations include:
It sets a minimum standard only. Some institutions have a greater capacity to me
et the standards than others, thus the standards may not be comprehensive enough
to meet the differing levels of disability.
It will not provide absolute certainty of requirements or expectations.
It relies on individuals with disabilities to enforce the Standard. There is no
mechanism in the Act to deal with breach of standard, consequently leading to a
very time consuming and troublesome process for the person making the complaint.
On the other hand, advocates of DDA education standards support its development
and implementation: "The existence of such standards would assist the union to d
evelop policy frameworks to guide its negotiations with employing authorities on
such issues, to lobby funding authorities and to educate and raise awareness of
its members with regard to the requirements and applicability of the Act."
An example of compliance of standards set out in the DDA is the implementation o
f Disability Services Acts. The NSW and WA Disability Services Acts ensure that
public services are provided in a non-discriminatory way. The Disability Servi
ces Act (WA) requires public authorities to develop and lodge a Disability Servi
ce Plan with the Disability Services Commission. The Disability Services Commis
sion is responsible for advising public authorities in relation to the preparati
on of Disability Service Plans, and evaluating the effectiveness of such plans,
with the view to providing further recommendations as to the effectiveness of th
e plans.
It appears that the system has made public authorities more aware of their oblig
ations to the disabled, thus achieving improvements in areas such as public tran
sport. However, in the area of education, there seems to be little improvement
, as it seems the Education Department continues to possess all decision-making
powers with respect to education options.
In a paper prepared for the MCEETYA Taskforce on DDA Education Standards entitle
d "Comparison of International Provisions on Disability Discrimination in Educat
ion", the measures undertaken by four other nations to counter discrimination
against students with disabilities in education is examined, with the view to co
mparing Australia's approach with that of other countries. There exists many pol
icies implemented by the United States of America and the United Kingdom which c
ould be a useful reference in deciding on our own policies to combat disability
discrimination in education.
In the U.K, the Disability Discrimination Act 1995 requires educational institut
ions to provide information for disabled people. Tertiary institutions are made
to publish disability statements containing information about facilities for pe
ople with disabilities, and Local Education Authorities have to provide informat

ion on their further education facilities for people with disabilities. This pi
ece of legislation is supplemented by the Education Act 1996 which offers opport
unities and rights for disabled students to be recognized for special educationa
l needs.
In the United States, the equivalent to the DDA is the Americans with Disabiliti
es Act 1990 (ADA), which includes the Individuals with Disabilities Education Ac
t (IDEA). The purposes of this act are:
1. To provide assistance to States to develop early intervention services for in
fants and toddlers with disabilities in their families, and to assure a free app
ropriate public education to all children and youth with disabilities.
2. To assure that the rights of children and youth with disabilities from birth
to age 21 and their families are protected.
3. To assist States and localities to provide for early intervention services an
d the education of all children with disabilities.
4. To assess and assure the effectiveness of efforts to provide early interventi
on services and educate children with disabilities.
There have been recent changes to the IDEA
ervices available to the disabled students
nt has gone to great lengths in developing
ive framework for ensuring compliance with

which concentrate on maximizing the s

and their families. The U.S governme
suitable legislative and non-legislat
the ADA.

The legislation in the U.S is obviously more intricate and advanced in its appro
ach, and like the U.K, uses education legislation to supplement human rights leg
islation.
When attacking the challenge of creating measures to counter discrimination in e
ducation, the Taskforce should consider the policies used in the U.S and the U.K
, which may help silence critics of the current recommendations, and thus provid
e acceptable and practical methods for ensure compliance of Standards under the
DDA.
Six possible models for Compliance in Education have been suggested:
1. Sector Compliance Education- which involves maintaining the DDA in its curren
t form with its existing provisions relating to education and compliance.
2. Improved Complaints Systems- which involves amending the DDA to set out a cle
ar and strict timetable for dealing with complaints and to encourage the delegat
ion of complaint investigation and hearing to appropriate state or territory bod
ies.
3. Mandating DDA Action Plans- which involves amending the DDA to make Action Pl
ans Mandatory for education providers.
4. Expanded Action Plans in Education- which involves amending the DDA to make
Action Plans mandatory for education and to indicate a set of core objectives.
5. Equal Opportunity in Education Agency- which involves amending the DDA to mak
e Action Plans mandatory for education by introducing a new law establishing a n
ew framework, along the lines of the Affirmative Action Agency, which includes a
n agency responsible for assisting education providers to meet their obligations
under the DDA.
6. Adapting existing education reporting- which involves amending existing educa

tion laws to complement the DDA.

Many issues arise with the possible implementation of these models, authorities
not yet making any conclusive decisions as to which path to take.
At this stage, it is suggested that the most important step towards compliance m
aintenance would be to implement systems to improve the efficiency of dealing wi
th complaints. In this case, amendments to the DDA would be required to include
the timetable for dealing with complaints and to empower HREOC to monitor compl
iance with the outcomes. This model carries with it benefits for people with di
sabilities who believe they are being discriminated against. They could anticip
ate fairly accurately the waiting time in which their application is being proce
ssed, and the turnaround times for outcomes cut down. It also carries the benef
it of placing responsibility upon the agency to diligently monitor compliance, w
hich in turn would put pressure on institutions to take responsible action promp
tly.

Bibliography

Books
Ronalds, C., "Discrimination Law and Practice" (1998) The Federation Press

Cases
L v Minister for Education for Queensland (1996) EOC 92-787

Articles
Banks, R., Kayess, R., "The Disability Discrimination Act- Working Towards Compl
iance in Education", DDA Standards Education Page, http://www.ozemail.com.au/~dd
asp/ddastardards2doc.2htm
Department of Employment, Education, Training and Youth Affairs (DEET), "Compari
son of International Provisions on Disability Discrimination in Education",
http://www.deet.gov.au/iae/documents/comparison.pdf
Independent Education Union of Australia (IEU), "Disability Discrimination Act Disability Standards in Education",
http://www.org.au/policies/disability.html
Ministerial Council on Education, Employment and Youth Affairs (MCEETYA), "Taskf
orce on the Disability Discrimination Act- Education Standards (DDA)" ,
http://www.curriculum.edu.au/mceetya/taskfrce/task2212.htm

Category : Law

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