Unlawful discrimination

This page provides resources about unlawful discrimination: when someone is treated unfairly on the basis of a protected characteristic.

People 'discriminate', in the sense that they make choices, every day. These choices may seem unfair or even hurtful but they are not necessarily unlawfully discriminatory. Unlawful discrimination arises when someone is treated unfairly because of their age, disability, family/carer responsibilities, gender identity (including trans, transgender and gender diverse), homosexuality or other sexual orientation, marital, domestic or relationship status, race, or sex.

People often ask

What is direct discrimination on the grounds of disability?

The concept of "direct discrimination" is found in both the NSW Anti-Discrimination Act 1977 (the ADA) and the Commonwealth Disability Discrimination Act 1992 (the DDA).

Using the DDA as an example, a person is directly discriminated against on the grounds of disability if, because of their disability, they are treated less favourably than a person without disability would be treated in similar circumstances.

A person is also directly discriminated against on the basis of their disability if:

• reasonable adjustments are not made for the person and
• the failure to make reasonable adjustments means or would mean the person, because of their disability, is treated less favourably than a person without the disability would be in circumstances which are not materially different.

What is indirect discrimination on the grounds of disability?

Using the DDA as an example a person is indirectly discriminated against on the basis of their disability if:

• they are required to comply with a requirement or condition which they cannot do so because of their disability and
• the requirement or condition disadvantages the person and is not reasonable having regard to the circumstances of the case.

A person is also indirectly discriminated against on the basis of their disability if:

• they are required to comply with a requirement or condition which they can only do if a reasonable adjustment is made and
• failing to make the reasonable adjustment disadvantages the person and the failure to make the reasonable adjustment is unreasonable having regard to the circumstances of the case.

Is it necessary for a student to have a "confirmed disability" before they are protected by discrimination legislation?

No it's not necessary for the student to have a confirmed disability to be protected by discrimination legislation.

The concept of a "confirmed disability" has been developed by the department and refers to students whose disability has been confirmed using established disability criteria.

The definition of disability in discrimination legislation is much broader - it includes "confirmed disabilities" but extends to other disabilities e.g. a disorder that results in a person learning differently or affects their emotions or judgment. It also covers disabilities that presently exist, previously existed or may exist in the future.

Do discrimination laws only apply to students?

No. While the Standards only apply to students, both the ADA and the DDA protect people with disability (for example staff or parents) against unlawful discrimination (that is discriminate against someone either directly or indirectly on the basis of their disability).

Key legal issues bulletins

• Student discipline in government schools bulletin 5
• Legal issues concerning the administration of prescribed medications, health care procedures and medical emergencies in schools bulletin 46
• Legal rights and responsibilities to a government school student who is diagnosed as being at risk of anaphylaxis bulletin 52
• Transgender students in schools - legal rights and responsibilities bulletin 55
• Disability discrimination bulletin 60

Further reading

• Disability Standards for Education 2005 and fact sheets
• Supporting students who are young carers
  
• Anti-Discrimination Board of NSW
• Resources for teachers from the Anti-Discrimination Board of NSW
• Australian Human Rights Commission
• Anti-Racism Policy
• Student Discipline in Government Schools Policy
• Complaints Handling Policy