Transcript of session 1 [Word - 56k] - Macquarie University

By Roy Wallace,2014-03-20 15:55
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Transcript of session 1 [Word - 56k] - Macquarie University

Macquarie University Accessibility Services has completed the transcription of ththis audio lecture on 17 September, 2009, which was recorded for the

    Learning and Teaching Centre. This transcription is not for reproduction or distribution.

    This is an electronic version of the transcript of a live event. All reasonable endeavours were taken to assure the accuracy of the content. However due to the nature of capturing a live speaker’s words, it is possible that it may contain errors and mistranslations. Red Bee Media Australia accepts no liability for any event or action resulting from this transcript. The transcript must not be published without Red Bee Media Australia’s written permission, which may be withheld at its absolute discretion

    Our first speaker today is Liz Green, she's going to do a session on legal perspectives and obligations for inclusive practice. Liz is currently the Associate to Graham Innes, the Disability Commissioner. She graduated with a bachelor of laws and social science from Macquarie in 2007, and has been working with the Australian Human Rights Commission since 2008. Prior to working with the commissioner, she worked in the Complaint Handling section of the commission providing information on Commonwealth anti-discrimination, and she worked at the NSW anti-discrimination legal centre for many years as a volunteer throughout her studies, and she enjoys nerdy TV shows! So, I'll hand you over to Liz Green.

    Liz Green: Today I'm going to use PowerPoint, but I'll also be explaining everything on the slides. So hopefully, I'll read everything out so it won’t be a

    problem. Because I didn't provide them earlier, sorry about that, guys. It's always very good to get the legal stuff out of the way early when everyone is filled with caffeine, so they're less likely to fall asleep.

    So, I just wanted to gauge, first of all, everyone's experience with the Disability Discrimination Act. Just put up your hand if you’ve worked with it or

    know about it, just so I... OK, so we've got a bit of knowledge about that, so I might go through it quickly with the basic stuff.

    OK, so I work, as introduced with Graham Innes. I've worked with the Disability Discrimination Act which is the Commonwealth Discrimination Act for People with Disabilities since 2001. And since then, there's been a few changes. So the first slide is just showing the legislation that I'll talk about. Firstly the Discrimination Act enacted in 1992, and secondly, disability standards for education, which was, which began in 2005, which essentially sees the obligations that education providers have. And thirdly, the legislation which was brought into effect this week, just on Wednesday, which is the Disability of Discrimination and Other Human Rights Amendment Bill of 2008. Now, I don't know whether it will have a lot of impact on the education sector, because already, the disability standards were quite inclusive in the ways in which they describe the obligations and what was required by education providers, but I'll talk about that. And please, during this time, if you've got any

    questions, just ask. If you can't gain my attention, please refrain from throwing heavy objects at me! But I'll try to be observant and ask, because I'm sort of better at answering questions than delivering a long speech!

    OK, so, the Disability Discrimination Act makes it against the law for an education authority to discriminate against somebody because that person has a disability. That is set out in section 22 of the Disability Discrimination Act, and from the next slide which I'm not going to read out because I think that you couldn't read it from your perspective. There's a lot of text there. And essentially, what it means is that what I just previously said, it is unlawful to treat somebody less favourably because they have a disability.

    Now, the definition of discrimination in the Disability Discrimination Act includes direct disability discrimination and indirect disability discrimination. Direct discrimination means that you treat, or propose to treat a person less favourably on the basis of their disability, than someone without that disability would be treated. Now, the previous Act said the same or similar

    circumstances. The changes that have come into effect this week now say "not materially different circumstances", so it is sort of a bit of legal jargon, but I think that it broadens someone's ability to make a complaint, because there's less onus to prove you are part of a group of people who are going to be affected by the change, and it… affected by the change, and it is to not

    materially, which is something that's easier to prove, I think. That will show in the future.

    So, I'll just put up an example. I'll read it out of direct discrimination. Our assistant, to help alleviate the systems of the disorder, when he enrolled in a course, he said that he would be bringing Roland into a course and the university rang him to say that he didn't reach the course requirements. George thought that it was because he told them that he was going to bring Roland to class. Obviously if there were no considerations about the effect that Roland was going to have on the class, or whether there could be a way to get around bringing assistants, that could be considered direct discrimination.

    Indirect discrimination happens when a requirement or condition which appears neutral actually has a disproportionate and unfair impact on people with a particular disability. So, I've got an example about that. Sandra informed the university two months before the semester started that... sorry, there's a typo… has a vision impairment and can't read print materials. The university said that they could provide electronic lecture notes for her every week, however, when the course started, Sandra found that the majority of readings she had to do were in PDF format. A lot of people produce materials in PDF format which is virtually impossible for people with a vision impairment to use reading software to be able to read. So this is the case of a situation where not intentionally, because that's not the point of the Act, but not being inclusive to people with different needs.

    Now, the definition of disability is quite broad. It includes physical, intellectual, psychiatric, sensory, neurological, learning disabilities, physical disfigurement, and equipment and animals used by disabled persons - for example a guide dog. With the changes that have come this week, the definition of disability has been expanded to include a disability that may exist in the future, including because of a genetic pre-disposition to that disability. And behaviour that is symptom or manifestation of the disability.

    Now, this is for people who have been working in the sector for a long time to clarify the decision that was... I can't remember now, 2002, I think... and essentially, this means that the definition has been broadened to expand to include behaviour, which is quite important. Sometimes for education providers about providing adjustments.

    The definition of disability includes past, present, future and disabilities. So, if you make assumptions about a person because they can't read print materials, and so you assume that they're not going to be very good at teaching to a class, I don't know why that would be... but obviously that could be considered discrimination. It also covers the associates of people with disability, and it includes harassment of provisions. The harassment of provisions, I think perhaps are more applicable to schools, as they seem to have more of a tendency to make bullying complaints, but it is also important in universities to have awareness about harassment.

    So, the education standards’ primary purpose is to clarify and make more

    explicit, the obligations of education and training service providers under the Disability Discrimination Act, and the rights of people with disabilities into education and training. So, if you're breaching the education standards, it's unlawful, like you would be breaching the Disability Discrimination Act. If you comply with the standards, then, essentially, it would not be considered to be unlawful under the Disability Discrimination Act. Now, there are guidance notes that help you read the Disability standards, the education standards and there's further notes, so it is quite well-explained. However, the problem with these situations is that it is always a case-by-case example because everybody's needs are different. There's going to be reasonable adjustments that everybody requires.

    I've got a bit of information about the objects of the education standards. To eliminate, as far as possible, discrimination against persons on the grounds of disability in the area of education and training, and to ensure, as far as practical, that persons with disabilities have the same rights to equality before the law in the area of education and training as the rest of the community, and 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.

    Now, that's the aspirational, but does it apply to you? Yes. So, if you work at a university or other education providers and you provide services, support, you tutor or you lecture, they all apply to you. Because the areas covered include enrolment, admission, participation, curriculum development, delivery,

    accreditation, student support services, and harassment and victimisation principles.

    So, what does that mean for you as education providers? It means that you need to take reasonable steps to ensure that the student is able to seek admission to, participate in, or access support services on the same basis. Now, the key terms in this are "reasonable steps" and "on the same basis". As a prospective student without a disability and without experiencing discrimination.

    So, there's a few suggestions in the education standards for how these can be. You need to consult the student or an associate of the student about whether the disability affects the student's ability to seek admission to courses, participate in courses or access support services. So, I guess this is dependent on a person explaining that they have a disability in the first place, but it doesn't mean that you're exempt from the Act, even if they haven't, even if it is obvious that there's something that you may need to do. And after the consultation, you need to decide whether it is necessary to make an adjustment to ensure that the student is able to seek admission on the same basis of a student without a disability. And if an adjustment is necessary, and can be identified in relation to, to make a reasonable adjustment. Unreasonable adjustments are obviously not required.

    So, there's a couple of suggestions, like education of staff and awareness of support services. Provision of specialised services, specialised equipment provided to support students and appropriate support staff and aides. Now, I understand you're going to be learning all about that today, about what's possible and what's not, but the thing to keep in mind with this information is that everything is different with each student, and it's just a matter of asking and finding out, because usually the adjustments can be quite simple. The reasonable adjustment is "a measure or action taken by education providers that has the effect of assisting a student with a disability". So the changes now to the Disability Discrimination Act are going to make it blanketly across all areas, like an explicit obligation for a person to make reasonable adjustments for people with a disability. Because the education standards came in in 2005, there was already quite an obligation there, but it is now explicit across indirect and direct disability discrimination. So, determining what's reasonable. You need to consider the student's disability, the views of the student or their society associate. The views of the student and the cost and benefits of it. There are views this week that came through that say that you have to... you have to consider all the availability of financial and other assistance, so you can't just say "Oh well, we don't have the funding." If there's Government funding available and it should be around, then that would be taken into consideration if someone just hasn't filled out a form. And the funding would be available for that person. And Disability Action Plans submitted to the Australian Human Rights Commission, or another agent that show the steps that you're going to take to make adjustments.

    So, if there's no requirement to provide unreasonable adjustments, you can take into consideration academic requirements of a course. So say, if it is important, there's a huge practical component of a course and a person is unable to attend classes, then that… attend classes, then that, and there's no

    way for that person to be able to attend classes because they can never make it up the stairs, or whatever, there's other considerations that come into it. However, if there are academic requirements of the course, components that are inherent or essential that it may not be considered to be discrimination, and the assessment of the adjustments that need to be made have to be repeated. So you can't just take someone in first year and say, "Oh well, go on your merry way because probably adjustments need to be changed over time".

    OK, so I've got a case study here. Jackie is in her final year of a teaching degree at university and has a mental illness. The assessment for the course requires that she complete a 20-day full time teaching practical. Jackie has requested that she be able to complete her practical part time at a rate of two days on and two days off. The university has refused Jackie's request and indicated that if she doesn't complete it, she will fail the course. Obviously, to complete a course part time is probably something that's reasonable, but every case would be considered if the education provider has thought about all those things like financial, academic requirements and the effect of the adjustment on students and others.

    So, I've just got another case study. Ruth has a vision impairment and is a university student studying occupational therapy. She can read large print. When she enrolled, she asked for course material in large print. The uni provided all materials electronically and told her to convert to large print which took her hours each week to do. Much of the materials was diagrams which did not convert, and the materials were provided well after the materials were available to other students, and this is something that could be easily remedied by preparation and perhaps just the university providing electronic copies converted already. Just an adjustment that could be made in that circumstance.

    Now, I might go through these slides quickly, because... harassment under the Disability Discrimination Act in relation to a person with a disability or a person who has an associate with a disability includes an action taking in relation to that person's disability that is reasonably likely in all circumstances to humiliate, offend, intimidate or distress the person.

    Now, education providers need to create strategies and programs to prevent harassment. However, some harassment by a person with a disability might not be considered to be harassment by a person who is teaching our course, so it is really important to just find out about people and your students before you start teaching, because what's offensive to someone is of course different to another person.

    So, exceptions to the standards create defences for education providers. So, the education provider has the onus of making out the exception, so, it means that if someone makes a complaint of disability discrimination, you can say - well, it wasn't reasonable for us in those circumstances to make an adjustment because it was an unjustifiable hardship. But education providers have to make out that argument.

    Now, an unjustifiable hardship means that you have to take all relevant circumstances of the particular case to be taken into account, including the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned, and the effect of the disability of a person concerned, and the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship. I mean, it's all very wordy, but essentially it means that you just have to take into consideration what everyone is going to be experiencing, how hard the adjustment will be financially, and time and effort, and what type of adjustments are necessary? There are guidance notes and the education provider must comply with the standards to the maximum extent not involving unjustifiable hardship. So, that's important to know that you can't just say, well, just because we can't put in a $40,000 lift, it doesn't mean that there might not be another solution to the situation, so you can't go around it.

    I've got an unjustifiable hardship case study. Clare has spina bifida and seeks enrolment at a university. She uses a wheelchair for long distances. She has issues with bladder and bowel control because of her disability and requires that a nurse comes to the university once a day. Clare's mother says that there should be a cupboard in the toilets for the catheterisers. The university said that they could not accept Clare and refused Clare's application for enrolment. So you would have to take into account what is being assessed. Now, if I was a small down the road college that had four students, well, it may be an unjustifiable hardship in those circumstances. But if you're talking about a large university, which obviously maybe has a lot of bathrooms, then maybe that would be reasonable in those circumstances.

    Another exception to the Standards and Disability Discrimination Act - standards do not render it unlawful for an education provider to isolate or discriminate against a student with a disability if the disability is an infectious disease or other condition, and is reasonably necessary to isolate or discriminate to protect the health and welfare of the student with the disability or the health and welfare of others. Now, this has been interpreted narrowly. However, obviously, occupational health and safety issues come into it. But you can't just refuse someone because they have HIV. You know, the practical course just off the back, because obviously you haven't taken into consideration all the steps that could be taken.

    And, I mean, if someone has a disability and there's a special course that's considered to be directed at them, it's not discrimination if you target a course at people with disabilities, because it could be considered a special matter, because it benefits them.

    So, the changes, as I said, that have come through this week, the first one is the recognition of the Disabilities Convention, which is the convention of the rights of the persons with disabilities. It's quite exciting because people in the disability community have been working on it for many years. What it means in practicality is somewhat more limited for people making complaints and people working in sectors, but I'll explain that later. There's changes to indirect discrimination definition, reasonable adjustments and unjustifiable hardship. Now, the convention, because it comes under an international convention that we've signed up and ratified, Australia has, it means that people can only make complaints as a human rights complaint. Now, what that means in this country with the current laws because we don't have a Human Rights Act, is that it means that you can only make complaints against the Commonwealth Government or one of its agencies, so I guess, may be of interest to you - if someone could make out a complaint that there was direct funding that's associated with your course, or somehow the Commonwealth Government is directly involved, then they may be able to make a complaint under the convention of the rights of persons with disabilities. But I think, because the Disability Discrimination Act is comprehensive in this area, it probably would be unnecessary to do so.

    The changes to indirect discrimination says that it is no longer necessary to provide that a substantially higher proportion of persons without the disability to comply with a rule, or are able to comply with an imposed requirement or condition. Which essentially means you just have to... someone has to say that because of my disability, I can't comply with that rule. And the onus is now on the respondent, so an education provider, that that requirement or condition is reasonable.

    There's changes to the Reasonable Adjustments section. So, failure to make reasonable adjustments may constitute unlawful discrimination. Previously it was a bit unclear, and they blanketly applied to direct and indirect discrimination. So, I'm going through it quickly because I know you've got a big day, but I can answer questions afterwards.

    And the changes to unjustifiable hardship I talked about earlier. That considers factors That will be considered like the availability of financial and other assistance, which I think is probably pretty relevant for education providers, and a disability action plan submitted to the Commission. So, disability action plans can be accessed on our website, the Australian Human Rights Commission website, and there's information about how to create action plans and help along the way. And also, you can ring up any time to our complaints information line to get information about any of these Acts, the standards, the changes, and on our website, there's lots of information about all that as well. So the complaint information line is 1300 656 419. But there's lots of disability discrimination information on there. Now, I'm sorry I won't be hanging around for the rest of the day to find out what you're all going to be learning about, but I can answer a few questions now. Sorry, I'm running a bit over time. Does anyone have any questions and I'll run through

    that pretty quickly and sometimes it is very wordy with all of the different definitions.

    Speaker from the floor: I know in the UK, the law over there has an

    anticipatory duty on institutions, so you've got to anticipate what might be issued and put steps in place. Is that true of the laws here?

    Liz Green: Essentially, because you're going on a case-by-case basis, if someone is to make a complaint, they can't make a complaint if they're not affected by whatever's happening in the institution. But if someone is finding it difficult, if there haven't been steps taken and put in place and it was, say a big institution with lots of funding and obviously say in an institution like this, this is going to be students who are in wheelchairs. Now, if there aren't a lot of ramps and buildings aren't accessible, then that would definitely be taken into consideration, so there hasn't been forethought about that.

    Speaker from the floor: I'm just interested in a question about equivalents and alternatives and reasonable adjustments. If you take a student, for example, that uses a computer for all of their studies and everything like that and it comes from assessment of tasks, form assessment tasks but because of the process of the institution, they would decide that it is appropriate that they have a scribe, would that be considered an appropriate adjustment? Liz Green: Well, there have been cases like that and they've been decided in both ways, unfortunately. So it is a case-by-case basis.

    Speaker from the floor: What are some of the factors that influence?

    Liz Green: You don't have to... as a provider, provide the most preferred method of adjustment. You have to provide a reasonable adjustment. So, because it is different in each case, I mean, if someone is using a computer for their entire course.

    Speaker from the floor: Or their entire life.

    Liz Green: Then it may be totally reasonable in these cases. However, if that assessment, if there's no way, say to make sure that there's not going to be any cheating involved or... I don't know what type of situation could prescribe that, but I couldn't say blanketly yes. However, that sounds reasonable to me that you would be able to use a computer.

    Speaker from the floor: So the Board of Studies in high school say that you can't.

    Liz Green: Yes, now that the new changes have come through, the standards apply to state schools and states as well. Someone may be able to make a complaint about that. Probably if it is a blanket regulation, there may be good reason for it, but it's taken on a case-by-case basis.

    Speaker from the floor: Is there anything within the changes with the Board of Studies to stop the Board of Studies using their definition of a learning difficulty therefore with a disability they won't do anything about it? Liz Green: I would say, when it comes to State versus Commonwealth

    legislation, it is always tricky because there's going to be cases on a case-by-case basis. But I would say it is quite explicit in the definition of a disability about what is a learning disability versus a difficulty. Can you give me an example?

    Speaker from the floor: Oh, dyslexia?

    Liz Green: That would be considered a disability under the Disability Discrimination Act.

    Speaker from the floor: And the difficulty of doing It [inaudible words]

    New speaker: I would say that all of the considerations of the NSW

    Government would be taken because they've probably done a lot of studies about it and what is considered and what's in and what's out. But I wouldn't say that it is out of the question for someone with dyslexia to lodge a complaint under the Disability Discrimination Act. Any more questions. Speaker from the floor: The Purvis Case, which was a very interesting and fascinating affair, given the changes that you outlined in terms of the recognition of behaviour, do you think a case lodged of a similar nature would have a different outcome to what we had at that time? And secondly, often we have staff, when you ask them to accommodate a student's circumstances that are considered above and beyond the call of duty, will give us a reason for not accommodating the student "Well, this is the way we've always done things." It sounds to me that that is no longer enough, that's not... Liz Green: Look, I don't know if that would have ever been a defence. Speaker from the floor: Probably not, but now it is much easier.

    Liz Green: Sure, because it is new changes anyway, and new changes

    always have to be the long process of something going to court, and because of the way that complaints are made, a lot of conciliations happen without public recognition about what is there. Anyway, as to your first question, Purvis was a funny case anyway because it was lodged under direct disability discrimination, rather than indirect disability discrimination, which you would have thought it would have been argued. I think you're right, it probably does eliminate the possibility of that, but the courts can interpret, of course however they want it and however broad and narrow but it does make it that bit more difficult tore behaviour to be, difficult for behaviour to be excluded in that way. Also, I think at the time of Purvis, because it was before the standards, because he was already enrolled, it meant that things that they did afterwards weren't as unlawful, and that was eliminated with the standards as well. So,

    sorry if you done know the Purvis case. I should have given a rundown. It was an important case, but now I think it has less importance because of the standards and because of the changes. So you don't have to worry about it so much. Any other questions?

    Alright, thanks very much for having me today. And I hope you have a great day.


    Tony Dwyer: Thank you very much, that was very informative. Something that I always like to point out to people is that this is not just about the unlucky small percentage who are born with a disability or who obtain one by accident. Essentially, everybody in this room, if we live long enough, will have a disability of some level as our motor functions deteriorate, eyesight fails, hearing fails, your memory gets worse, etc. So, it's not just about a small few, it is about everybody. And a lot of the things that we do actually help everybody anyway, regardless of disability.

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