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Legal and Policy Session Paper

Brian Hardy, Vision Australia Foundation

The Legal Position

Equal Access is Required by Law

Provision of information and other material through the Web is a service covered by the DDA. Equal access for people with a disability in this area is required by the DDA where it can reasonably be provided.

This requirement applies to any individual or organisation developing a World Wide Web page in Australia, or placing or maintaining a Web page on an Australian server.

This includes pages developed or maintained for purposes relating to employment; education; provision of services including professional services, banking, insurance or financial services, entertainment or recreation, telecommunications services, public transport services, or government services; sale or rental of real estate; sport; activities of voluntary associations; or administration of Commonwealth laws or programs. All these are areas specifically covered by the DDA.

In addition to these specific areas, provision of any other information or other services or facilities through the Internet is in itself a service and as such, discrimination in the provision of this service is covered by the DDA. The DDA applies to services whether provided for payment or not.

(HREOC Advisory Notes – Version 3.1 May 1999)

The DDA does not require… that Web pages be restricted only to plain black and white text. Forms and formats which give increased functionality for some users or increased scope for creativity by developers are not prohibited or discouraged. It is essential, however, that where a feature does not itself provide equal accessibility, an effective accessible alternative should be provided unless this is not reasonably possible.

(HREOC Advisory Notes – Version 3.1 May 1999)

The main reference point endorsed by the HREOC Advisory Notes is the World Wide Web Consortium’s Web Content Accessibility Guidelines 1.0

Complaints of Discrimination

A complaint of disability discrimination is unlikely to succeed if accessibility has been considered at the design stage and reasonable steps have been taken to provide access. As a general rule, it would be unreasonable to require features that would exceed the best current standards or features that would impose unjustifiable hardship on the provider. In considering a disability discrimination complaint about WWW access, HREOC would take into consideration the extent to which the best available advice on accessibility had been followed.

(HREOC Advisory Notes – Version 3.1 May 1999)

Limits on Obligation to Comply

In some (but not all) circumstances, obligations under the DDA to provide equal access are limited by the concept of unjustifiable hardship. A provider may be able to demonstrate that it would involve unjustifiable hardship to meet particular access requirements.

Providers should note that unjustifiable hardship has to be demonstrated and cannot be simply assumed. In particular, stylistic preferences rather than functional requirements are highly unlikely to be accepted as constituting a basis for a defence of unjustifiable hardship (other than in cases where the artistic form of a site is a significant function). This does not imply any attempt to prohibit innovative design. It does mean that design must address access requirements, directly or by provision of alternative means of access.

Commonwealth Government departments and agencies, and other organisations where they are involved in administration of Commonwealth laws and programs, do not have the benefit of an explicit unjustifiable hardship defence under the DDA. These organisations are required to provide equal access free from unreasonable barriers.

(HREOC Advisory Notes – Version 3.1 May 1999)

The concept of unjustifiable hardship has to be interpreted in the light of the objects of the DDA, including the object to eliminate discrimination "as far as possible".

Maguire vs. SOCOG

The decision is at:

The finding in relation to damages is at:

The Policy Position

Government Policies

Commonwealth Government

"All websites are to follow the W3C guidelines to a sufficient extent that they pass recognised tests of accessibility"

State and Territory Governments – For example

Victorian Government Accessibility (Disability) Policy

"Departments should design their web sites to promote equal access for people with disabilities." "Departments should apply the W3C Guidelines to the internet, intranets and extranets."

"Departments should obtain at least the first level of compliance."

Providing Information and Services Using the Internet: A Guide for NSW Government Agencies (Section 4.5 – Content Accessibility) [PDF only – May 2001]

"Accessible content should be developed as a standard feature of web pages, rather than be considered a special feature for people with disabilities." "The Web Content Accessibility Guidelines are to be used for developing accessible content." "Priority 1 and 2 Checkpoints should be applied as a minimum>"

SA Government Website Protocols

"Websites are required to comply with the DDA Advisory Notes, HREOC"

WA Government E-Commerce guidelines


Whole of Government documents ( currently not available on the web, but departmental standards reference the W3C WAI e.g.


Web site design must incorporate techniques and design elements which provide a high degree of usability for people with disabilities. All Tasmanian Government Web sites created or substantially modified after adoption of these guidelines must be Priority 1 compliant with the W3C Web Content Accessibility Guidelines. Industry Policies

Internet Industry Association & Australian Interactive Multimedia Industry Association

IIA and AIMIA have agreed to the adoption of the World Wide Web Consortium's Web Content Accessibility Guidelines as the common best practice standard for all Australian websites.

Australian Bankers Association (see Disability Action Plan)

Law Reform Foundation


Disability Standards for Education (DETYA)

EdNA Authoring Guidelines for Web Accessibility

IMS Guidelines for Developing Accessible Learning Applications


Links: OZeWAI 2001 home page | presentations