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Disability law and access: unjustifiable hardship

Not everyone with a disability will require adjustments. Many adjustments are likely to be simple to put in place while others may involve planning and budgetary allocation and some disruption or time commitment.

The DDA uses the concept of 'unjustifiable hardship' to determine whether an adjustment is reasonable or not. Expense or inconvenience does not necessarily constitute 'unjustifiable hardship' and all the relevant circumstances of a particular case are taken into account. For example installing a lift may be too expensive for a small employer or restaurant owner but is affordable for a large employer.

To determine the validity of a claim of 'unjustifiable hardship', The Australian Human Rights Commission or court will look at:

• the benefit or detriment accrued by any person concerned
• the effect of the disability on any person concerned
• the cost of the adjustment and the total budget of the University (not the budget or resources of a particular department).

The burden falls on the person claiming unjustifiable hardship where this is the reason for not providing adjustments.
In large institutions like universities, provision of support for people with a disability (such as Auslan interpreters, notetakers, lecture notes, specialist equipment or computers) would not constitute unjustifiable hardship. Furthermore, while the cost of modifications to buildings to improve accessibility may be expensive, under the DDA a large organisation would not be able to argue the case of 'unjustifiable hardship' on the grounds of expense.

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