Module 2 - Task 1 - Suggested Answers
1. Assuming further legal action might be taken by Saskia what obvious legal options can she pursue?
Your task
(a) Read the overview at: https://www.humanrights.gov.au/our-
work/employers/quick-guide-australian-discrimination-laws and
identify the Commonwealth Act/s and the relevant State Act (The
Menzies campus is in Victoria) that may cover discrimination on the
basis of disability.
(b) Find the Equal Opportunity Act 2010 (Vic)
http://www.legislation.vic.gov.au/Domino/Web_Notes/LDMS/PubLaw
Today.nsf/95c43dd4eac71a68ca256dde00056e7b/5fff7518579f72b0c
a257eb300217461!OpenDocument
Look at section 4. Definitions. Would Saskia’s paraplegia amount to
Saskia having a disability?
(c) What particular section of the Act prohibits discrimination of the
attribute of disability?
(d) Look at Part 2 sections 8 and 9. Is Saskia’s matter more likely to be
direct or indirect discrimination?
Supervisor’s Answers
Disability Discrimination Act 1992 (Cth), Equal Opportunity
Act 2010 (Vic).
Yes. Section 4 Definitions states that a ‘disability’ means:’
disability means — (a) total or partial loss of a bodily
function; or (b) the presence in the body of organisms that
may cause disease; or (c) total or partial loss of a part of
the body; or (d) malfunction of a part of the body, including
— (i) a mental or psychological disease or disorder; (ii) a
condition or disorder that results in a person learning more
slowly than people who do not have that condition or
disorder; or (e) malformation or disfigurement of a part of
the body— and includes a disability that may exist in the
future (including because of a genetic predisposition to that
disability) and, to avoid doubt, behaviour that is a symptom
or manifestation of a disability;
Part 2 Section 6 (f) disability.
Probably indirect:
Section 9 Indirect discrimination (1) Indirect discrimination
occurs if a person imposes, or proposes to impose, a
Your task
(e) Now find the Disability Discrimination Act 1992 (Cth) (the DDA)
https://www.legislation.gov.au/Details/C2016C00763
What does it say about ‘unjustifiable hardship’?
Supervisor’s Answers
requirement, condition or practice— (a) that has, or is likely
to have, the effect of disadvantaging persons with an
attribute; and (b) that is not reasonable.
(2) The person who imposes, or proposes to impose, the
requirement, condition or practice has the burden of
proving that the requirement, condition or practice is
reasonable. (3) Whether a requirement, condition or
practice is reasonable depends on all the relevant
circumstances of the case, including the following— (a) the
nature and extent of the disadvantage resulting from the
imposition, or proposed imposition, of the requirement,
condition or practice; (b) whether the disadvantage is
proportionate to the result sought by the person who
imposes, or proposes to impose, the requirement, condition
or practice; (c) the cost of any alternative requirement,
condition or practice; (d) the financial circumstances of the
person imposing, or proposing to impose, the requirement,
condition or practice; (e) whether reasonable adjustments
or reasonable accommodation could be made to the
requirement, condition or practice to reduce the
disadvantage caused, including the availability of an
alternative requirement, condition or practice that would
achieve the result sought by the person imposing, or
proposing to impose, the requirement, condition or practice
but would result in less disadvantage. (4) In determining
whether a person indirectly discriminates it is irrelevant
whether or not that person is aware of the discrimination.
11 Unjustifiable hardship
(1) For the purposes of this Act, in determining whether a
hardship that would be imposed on a person (the first
person) would be an unjustifiable hardship, all relevant
circumstances of the particular case must be taken into
account, including the following:
Your task
(f) A discrimination complaint can be made to either:
 Victorian Equal Opportunity and Human Rights Commission:
https://www.humanrightscommission.vic.gov.au/discrimination/ma
king-a-complaint
or
 Australian Human Rights Commission
https://www.humanrights.gov.au/complaints
Read the following Victoria Legal Aid webpage (as well as
comparing the above two websites) and decide which might be
the better commission to deal with this complaint and say why?
https://www.legalaid.vic.gov.au/find-legal-answers/discrimination-
harassment-and-bullying/making-complaint-about-
discrimination/complaints-to-human-rights-commissions
Supervisor’s Answers
(a) the nature of the benefit or detriment likely to
accrue to, or to be suffered by, any person
concerned;
(b) the effect of the disability of any person concerned;
(c) the financial circumstances, and the estimated
amount of expenditure required to be made, by the
first person;
(d) the availability of financial and other assistance to
the first person;
(e) any relevant action plans given to the Commission
under section 64.
Example: One of the circumstances covered by paragraph
(1)(a) is the nature of the benefit or detriment likely to
accrue to, or to be suffered by, the community.
(2) For the purposes of this Act, the burden of proving that
something would impose unjustifiable hardship lies on
the person claiming unjustifiable hardship.
Where similar legal subject matter is covered under
different legislation, it is not always easy to see which
commission might ‘be better’ for the client. Don’t worry if
you didn’t find much to help you on this question. Lawyers
who often work in this area will have their own views based
on their experience. If you wish to do more work on this
yourself then go to each commission’s website and begin
to read cases and the remedies that each Commission
applied in the case. That way you begin to discern patterns.
The Australian Human Rights Commission has more
investigatory powers. The Victorian Equal Opportunity and
Human Rights Commission might tend to deal with the
complaint within a shorter period of time. Saskia could
lodge a complaint in both. As to Saskia getting special
Your task
2. What’s the best way of dealing with this matter in the first instance?
Your task
Menzies University is a fictional University so we can’t identify their
special consideration policy on the web (sometimes policies reside in the
student portal). That is where you would look first. Particularly find
relevant clauses that might be worth pointing out to the University as to
their obligations. Some Universities do often require special
consideration within 3 working days of a scheduled exam.
For the sake of the virtual internship, I noticed the following two clauses
in Menzies Special Consideration Policy:
1.7 Any application for special consideration must be made as soon
as possible and within 3 working days of the due date of the
specific piece of assessment or scheduled exam.
2.3 Students who are entitled to reasonable adjustments by virtue of
being registered with the University’s Disability Office are not
precluded from applying for special consideration under this policy.
Saskia has told me she wants to receive special consideration, so she
can sit a supplementary Equity and Trusts exam in 3 weeks’ from today.
Apparently, Menzies has the supplementary exams scheduled then.
Supervisor’s Answers
consideration and the opportunity to sit a supplementary
Equity and Trusts exam, more informal procedures might
be more efficient to pursue, and she has a better chance of
getting the outcome of sitting a supplementary exam rather
than having to wait to re-enrol in and pay the tuition fees for
the subject in a years’ time.
Supervisor’s Answers
It may be that Saskia wishes to pursue both complaints in
the Victorian Equal Opportunity and Human Rights
Commission and in the Australian Human Rights
Commission. There will be a procedure that might work to
help Saskia feel vindicated and help to ensure that the
University improves its procedures around disability.
Of course, in practice, the complaint procedures may not
actually get Saskia the short-term outcome that she wants:
which is to sit the supplementary exam in 3 weeks’ time.
The quickest way is to pursue the process through the
existing University processes reminding people along the
way that Victorian and Commonwealth law requires
educational decision makers to not discriminate on the
basis of disability. It is always useful to remind people of
their own organisation’s policies.
Saskia may try to lodge a special consideration application
online with a further explanation of why she might be
excused from lodging the special consideration form within
the 3 working day period.
 As I haven’t been to University for quite some time, I’m not really sure
how they work. Maybe you can let me know what you think would be the
simplest, quickest and most efficient strategy to get the University to
allow Saskia to sit the supplementary exam. It might help to do a general
google of your University or other Universities as to how special
consideration is typically granted.
Saskia (or even her mother if the relationship between them
encourages it) is probably best to make contact with the
head of the faculty or department and explain the situation.
The reasonable adjustment of giving Saskia disabled
carparking and then disallowing it by building repairs might
be seen to be discriminatory by the University. Also, it
could be said that waiting a year and repeating the whole
subject (and paying for it) would be ‘unjustifiable hardship’.
Saskia’s restricted mobility itself is a good argument as to
why delay occurred in lodging a special consideration form
face to face. It is always a good idea to identify a suitable
outcome for the client. In this case, Saskia wants to sit the
supplementary exam. This can then be communicated to
the head of faculty or department.

Congratulations if your suggested answer was similar to ours! You may have even found other avenues of complaint that we haven’t included.
Please ask us if you have any concerns.
When giving the advice, the supervisor will begin with walking Saskia (and/or her Mother) through the ‘best way of dealing with the matter in the
first instance’ (yours and the supervisors notes in the right hand side column).
You should now be ready for the next more complex task – that of advising a client to challenge a deportation order!