2007 PhD Thesis Final Revised.pdf - Curtin University

in order to combat the disability divide. As such, Section 508-style legislation would
provide a more effective framework, allowing the Federal government to provide a
uniform approach across the states and territories. Unlike the USA, there is no
technology-specific legislation for people with disabilities in Australia and any
complaint regarding IT-based discrimination is a matter of interpretation by the
HREOC. Although the US Section 508 applies to the large majority of IT products
manufactured, the significance of Australian Federal legislation in regards to the IT
needs of people with disabilities is ambiguous and makes it difficult when addressing
Australian-specific issues.
One of the difficulties in enforcing the DDA of 1992 when there is no IT-
specific legislation can be found in Section 11, termed Unjustifiable Hardship.
Section 11 of the DDA (Australian Federal Government, 1992) is as follows:
For the purposes of this Act, in determining what constitutes unjustifiable
hardship, all relevant circumstances of the particular case are to be taken into
account including:
(a) the nature of the benefit or detriment likely to accrue or be suffered by
any persons concerned; and
(b) the effect of the disability of a person concerned; and
(c) the financial circumstances and the estimated amount of expenditure
required to be made by the person claiming unjustifiable hardship;
and
(d) in the case of the provision of services, or the making available of
facilities-an action plan given to the Commission under section 64.
One significant example of where such a defence was used against the
accessibility of IT for a person with a disability is the Bruce Maguire v SOCOG case,
briefly referred to earlier. The respondent used the argument of unjustifiable
hardship to prevent a repeat of the inaccessible 2000 Sydney Olympic Games web
site. Wilson (2003) indicated that the current definition of unjustifiable hardship
makes it relatively easy for government and corporate entities to avoid
responsibilities in such issues. Although the defence was unsuccessful for SOCOG,
this Section removed the need for SOCOG to address the accessibility issue. The
resulting payment for damages to Maguire was also not sizable enough to be a
deterrent for ongoing compliance by others.
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