Learning and Teaching Centre

Macquarie Accessibility Services

Legislative Requirements

Please note that this information is provided as a starting point for discussion only and is not meant to provide a legal opinion on individual legislative responsibilities.

1. Overview of Legislation and Policy

There are currently four policy documents that need to be considered from a public obligation and legal compliance perspective in conjunction with the development of a teaching and learning strategy.  Namely:

  1. Disability Discrimination Act 1992 (This impacts on all training, support, professional development and administration processes that are accessed by staff and students with a disability.)
  2. Disability Standards for Education 2005. (Impacts on delivery of all courses and units.)
  3. AVCC Guidelines relating to Students with a Disability  - May 2006.
  4. International Convention on the Rights of Persons with Disabilities signed by the Australian Commonwealth Government in March 2007, undertaking that public authorities and institutions act in conformity with the present Convention (Article 4 d).

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2. Disability Discrimination Act 1992

The Disability Discrimination Act 1992 (DDA)1, when enacted placed the question of access on the agenda for Higher Education providers.  The Act states that it is unlawful to discriminate against a person on the basis of their - or a member of their family's - disability. (Relatives are referred to as associates under the Act and are accordingly provided with protection.2)
The objects of this Act are:

  1. to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of:
    1. work, accommodation, education, access to premises, clubs and sport; and
    2. the provision of goods, facilities, services and land; and
    3. existing laws; and
    4. the administration of Commonwealth laws and programs;
  2. to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community;
  3. to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.3

It is important to note that Section 2 of the Criminal Code, which sets out the general principles of criminal responsibility (except Part 2.5) applies to this Act.4

For a Higher Education provider, the legal responsibility for meeting the requirements of the DDA is threefold:

  1. Firstly, our responsibility to staff with disabilities.  This goes beyond initial recruitment to ensuring inclusion in the wider life of the university, access to promotional opportunities as well as providing staff with the necessary tools and suitable working environment to be able to do their work.

  2. Secondly, our responsibility to students with disabilities.  Again, including full access to the breadth of campus life as well as the teaching and learning  experience. The Act states that:

    It is unlawful for an education provider to discriminate against a person on the grounds of the person's disability or a disability of any of the person's associates:

    1. by developing curricula or training courses having a content that will either exclude the person from participation, or subject the person to any other detriment; or
    2. by accrediting curricula or training courses having such a content.5

  3. Finally, our responsibility to graduates.  In the same manner that we carry a burden of responsibility for preparing our general student body for successful transition to employment, we also have a responsibility to equip our students with disabilities for success.

Fifteen years ago when the DDA was enacted in 1992, the unjustifiable hardship clause 6  was interpreted by some institutions as a reprieve from their obligations to make accommodations for students with disabilities.  Unjustifiable hardship, among other factors, covered the estimated amount of expenditure required to be made by the organisation to facilitate access.  This question of unjustifiable hardship and whether or not it could justifiably be claimed by universities has been widely disputed.  Andrew Lynch in his legal commentary on the DDA put his position that 'it is widely appreciated that universities must make this support available to those of their students who need it in order to complete their studies.  The mere existence of financial cost does not equate with unjustifiable hardship.7

The Disability Standards for Education enacted in 2005 and the International Convention on the Rights of People with a Disability, signed by the Australian Government in March 2007, now strengthen the legal and government policy obligations of organisations to ensure inclusive practices.  

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3. Disability Standards for Education 2005.

Following widespread consultation with the Education Sector since 1997, the Disability Standards for Education came into effect in August 2005 with the stated purpose of clarifying and making more explicit:

  1. the obligations of education and training serviceproviders under the DDA and
  2.  the rights of people with disabilities in relation to education and training.

8  Of particular interest are the Standards for curriculum development and accreditation and delivery.  Accordingly, it has been included below in its entirety.  Of particular interest are the Measures for Compliance with the Standards.

Standards for curriculum development and accreditation and delivery

  1. The education provider must take reasonable steps to ensure that the course or program is designed in such a way that the student is, or any student with a disability is, able to participate in the learning experiences (including the assessment and certification requirements) of the course or program, and any relevant supplementary course or program, on the same basis as a student without a disability, and without experiencing discrimination.

  2. If a student is enrolled in the course or program, the provider must:

    1. consult the student, or an associate of the student, about whether the disability affects the student's ability to participate in learning experiences of the course or program, or any relevant supplementary course or program; and
    2. in the light of that consultation, decide whether an adjustment is necessary to ensure that the student is able to participate in those learning experiences on the same basis as a student without a disability who is enrolled in the course or program; and
    3. if:
      1. an adjustment is necessary to achieve the aim mentioned in paragraph (b); and
      2. a reasonable adjustment can be identified in relation to that aim;
      3. make a reasonable adjustment for the student in accordance with Part 3.

  3. The provider must repeat the process set out in subsection (2) as necessary to allow for the changing needs of the student over time.

  4. For this section, in relation to a student enrolled in a course or program, the provider has taken reasonable steps to comply with subsection (1) if the provider has complied with subsections (2) and (3).

Note See Part 10 for exceptions to the legal obligations set out in the standards. These include a provision that it is not unlawful for a provider to fail to comply with a standard if, and to the extent that, compliance would impose unjustifiable hardship on the provider (section 10.2).

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Measures for compliance with standards

Measures that the education provider may implement to enable the student to participate in the learning experiences (including the assessment and certification requirements) of the course or program, and any relevant supplementary course or program, on the same basis as a student without a disability, include measures ensuring that:

  1. the curriculum, teaching materials, and the assessment and certification requirements for the course or program are appropriate to the needs of the student and accessible to him or her; and
  2. the course or program delivery modes and learning activities take account of intended educational outcomes and the learning capacities and needs of the student; and
  3. the course or program study materials are made available in a format that is appropriate for the student and, where conversion of materials into alternative accessible formats is required, the student is not disadvantaged by the time taken for conversion; and
  4. the teaching and delivery strategies for the course or program are adjusted to meet the learning needs of the student and address any disadvantage in the student's learning resulting from his or her disability, including through the provision of additional support, such as bridging or enabling courses, or the development of disability-specific skills; and
  5. any activities that are not conducted in a classroom, such as field trips, industry site visits and work placements, or activities that are part of the broader course or educational program of which the course or program is a part, are designed to include the student; and
  6. the assessment procedures and methodologies for the course or program are adapted to enable the student to demonstrate the knowledge, skills or competencies being assessed.9

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4. AVCC Guidelines relating to Students with a Disability - May 2006

The AVCC guidelines provide a valuable blueprint for developing inclusive curricula in the Higher Education Sector.  Of note is the breadth of areas covered by the guidelines, for example it does not only state that curricula should be inclusive and student centred, taking account of the diversity of student needs, it  unpacks what this actually requires in a Higher Education environment, addressing issues  of electronic delivery of information, online education, assessment fieldwork etc.

In short, in relation to Teaching and Learning, the guidelines state that:
A Curricula should be inclusive and student centred, taking account of the diversity of student needs
B The delivery and assessment of courses should be inclusive and enable students with a disability to demonstrate equitably the achievement of learning outcomes
C All undergraduate and postgraduate learning environments should provide opportunities for equitable participation by students with a disability10
Further to this that 'library services and ICT facilities should be fully accessible to all students across all learning environments.11

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5. International Convention on the Rights of Persons with Disabilities

The International Convention on the Rights of Persons with Disabilities, signed by the Australian Government on 30 March 2007, both reaffirm the requirements of the DDA and supporting standards and increase the accountability for all Education service providers.  As is the case with both the DDA and the Standards, special attention is given to the development of accessible curricula and its delivery.  Further to this there is a general obligation for all signatories to

  1. undertake or promote research and development of universally designed services, equipment and facilities12  I
  2. undertake or promote research and development of, and to promote the availability and use of new technologies, including information and communication technologies ' suitable for people with disabilities13
  3. promote the training of professionals and staff working with persons with disabilities in the rights  recognized in  this Convention so as to better provide  assistance and services guaranteed by those rights.14

Article 24 addresses the obligations of Education providers to facilitate equity of access to Education.  In the main the section reflects the principles that are outlined in both the DDA and the Standards.  Of particular interest is Section 2 :
States Parties (signatories) shall ensure that '. Effective individualized support measures are provided in environments that maximize academic and social development, consistent with the goal of full inclusion.15

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  1. Disability Discrimination Act Act No. 135 of 1992
  2. DDA  Part 1.4
  3. DDA  Part 1. 3
  4. DDA Part 1 12A
  5. DDA Part 2 Division 2.22
  6. DDA Part 1.4.11
  7. Lynch, A (1998) 'The Disability Discrimination Act 1992 (Cth) and Higher Education - Why standards must be drafted and what they should address' Canberra Law Review, Vol 5(1 and 2) p104
  8. Australian Government Attorney Generals Department COMLAW accessed 8/5/2007 (link to http://www.comlaw.gov.au/ComLaw/Legislation/LegislativeInstrument1.nsf/framelodgmentattachments/7A85B20657105BF5CA256FCC001DBD58 - hide URL)
  9. Disability Standards for Education 2005 Sections 6.2 & 6.3
  10. Guidelines Pages 6 - 7
  11. Guidelines P8
  12. United Nations Convention on the Rights of Persons with Disabilities Article 4 f
  13. Convention Article 4.g
  14. Convention Article 4 i
  15. Convention Article 24 Section 2 e.

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