Pathways 14 Inherent Requirements in Context

LEGAL CONTEXT Most relevant legislation:
Disability Discrimination Act (1992 –as amended)
Disability Standards for Education (2005)<br>

How Legislation Works Act passed by Parliament
Once signed off by Governor General, and given a start date, they become law.
Laws interpreted by courts (Case law, Precedent)
Case law informs future cases, behaviours, etc.
Courts interpret the law literally (e.g. Unjustifiable Hardship)<br>

DDA Education Standards Very few disability discrimination cases go to court (c. 85% settled in Conciliation)
Very little case law
Conciliated settlements published on website
Standards developed to assist in interpreting and implementing the DDA
Subsidiary legislation
Same force as DDA
Compliance with Standards is compliance with DDA<br>

DDA Education Standards Exceptions:
Unjustifiable Hardship
Acts Done under a Statutory Authority (e.g. Immigration Act)
Protection of Public Health and Safety
Special Measures Designed to Benefit a Student with a Disability (such as the provision of specialist disability services).<br>

DDA Education Standards Section 3.4 (3)
"in assessing whether an adjustment to the course, unit of the course or program in which the student is enrolled, or proposes to be enrolled, is reasonable, the provider is entitled to maintain the academic requirements of the course or program, and other requirements or components that are inherent in or essential to its nature. Note: in providing for students with disabilities, a provider may continue to ensure the integrity of its courses or programs and assessment requirements and processes, so that those on whom it confers an award can present themselves as having the appropriate knowledge, experience and expertise it implicit in the holding of that particular award.”<br>

Inherent Requirements example Canadian Exchange student
Blind since birth –
Enrolled in in course 50% Film Study
What is inherent? – capacity to watch film and analyse or capacity to analyse abstract visual concepts?<br>

Why Inherent Requirements? Critical aspect of determining “Reasonable Adjustments” under the Disability Discrimination Act (DDA) and Disability Education Standards (The Standards)
One of the few limitations on obligations to adjust for effects of a disability
Integral part of the process of maintaining academic integrity
Facilitates timely determination of adjustments as required by DDA
Prevents indirect discrimination due to non-disclosure of information necessary for informed decision making about courses, enrolments, etc.<br>

2009 Changes to DDA Burden of Proof
Obligation to Prevent Discrimination<br>

External Registration and Accreditation Course Accreditation requirements may impact Inherent requirements – must apply to all students
Students must be able to meet course requirements, individual registration or employment separate issue<br>

UWS IRONE Project developed a structure and a process for identifying, developing and articulating Inherent Requirements for courses
Valuable tool for developing reasonable adjustments
Balance between access and academic integrity<br>

Definition Inherent Requirements are the fundamental components of a course or unit, that are essential to demonstrate the capabilities, knowledge and skills to achieve the core learning outcomes of the course or unit, while preserving the academic integrity of the university’s learning, assessment and accreditation processes. (Note: making a requirement compulsory does not necessarily make it an Inherent Requirement.) Academic Senate Education Committee, 2010)<br>

UWS IR Framework 5 Components:
1 Lead in /overarching statements
2 Descriptive statements i.e. a statement which describes the requirement
3 Inherent Requirement because (why/justification)
4 Characteristics of Adjustments
5 Exemplars<br>

Why this approach? Previous approaches have simply stated requirements, without justifying inherency or considering adjustments
Need to address the difference between compulsory and inherent requirements
Lack of clarity can lead to discriminatory requirements and/or undermining academic integrity
Need to consider whether adjustments are reasonable, consistent with Inherent Requirements<br>

Principles: If you don’t teach and assess it and apply to all students, it is not an inherent requirement.
Personal attributes are not inherent requirements - students must demonstrate knowledge, skills and abilities
For a requirement to be inherent, you need to be able to articulate why it is inherent or essential, and be prepared to defend it in court if necessary
Making something compulsory does not make it inherent.<br>

Some issues: Need to ensure that we are articulating the Inherent requirements of Course – not employment or registration
Accreditation requirements may impact on some courses – (e.g. MBA, NMBA, Law Society, etc.) – may be inherent
Students may be able to meet course requirements, but not register or practise profession, or may have qualified registration
Significant Risk Management issue – particularly after 2009 DDA amendments.
Process of developing IRS is important
Be careful not to confuse mechanisms for teaching and assessing with inherent requirements – e.g. an exam is a mechanism for assessing the inherent requirement of demonstrating appropriate knowledge and skills, not the inherent requirement itself<br>

Myths Developing Inherent Requirements gives students and educational institutions new rights and obligations
Articulating IRs does not confer any new rights or obligations not present under existing legislation. All it does is clarify and articulate existing rights and obligations so that a critical factor in the process of determining reasonable adjustments is clearly understood.
Inherent Requirements are designed to exclude students with disabilities from pursuing courses
Experience has shown that having inherent requirements in place tends to be more inclusive that exclusive. Where students are genuinely unable to meet inherent requirements after exploring all possible strategies, then it is possible for them to be excluded, but there is a clear and validated rationale for this exclusion.<br>

Current & Future developments: Many universities developing IRs based on UWS model
Discussions and development of different IR models
Refinement of IR statements = dynamic, not static
Incorporation into Regulatory bodies & course accreditation (eg AHPRA)
Clearer, less contested process for determining Reasonable Adjustments
Academics more confident in accepting and approving Reasonable Adjustments
Students have a clearer understanding of what course requirements will be and be able to make more informed choices
Greater inclusion
Better protection for academic integrity.<br>

Questions?<br>