Purpose of this document

The department seeks to provide school environments free from unlawful discrimination, including disability discrimination.
In meeting our commitment that every student is known, valued and cared for, our schools educate about discrimination, work to prevent unlawful discrimination, and deal with unlawful discrimination when required.
The department’s inclusive education statement outlines its commitment to inclusion and all students accessing and fully participating in learning, supported by reasonable adjustments and teaching strategies tailored to meet their individual needs.

Key considerations for school leaders

Key Terms

• Direct discrimination means treating one person less favourably than another is, or would be, treated in comparable circumstances because of a protected attribute (see below).
• Indirect discrimination means imposing an unreasonable condition or requirement that applies to everyone but has the effect of disadvantaging someone because of a protected attribute.
• Protected attributes are characteristics or attributes prescribed by the law, such as disability, sex, sexuality, pregnancy, family responsibilities, race, ethno-religious origin, or age.

What is unlawful discrimination?

Discrimination means treating one person differently to another person. You can discriminate against another person even if you did not intend to do so.
It is not always unlawful to do this. However, it is unlawful to discriminate if:

• it happens within an area of activity set out in the legislation, such as work, education, or in the provision of goods or services
• it happens because of a protected attribute.

Some of the most common issues relating to disability discrimination may arise when schools:

• refuse or discourage enrolment or impose conditions for enrolment because of a student's disability
• deny or limit access to any benefits (including, for example, school excursions and camps), because of a perception that the school is unable to accommodate a student’s disability
• suspend or expel a student with a disability.

Legislative framework

The NSW Anti-Discrimination Act 1977 (ADA) contains provisions governing most areas of discrimination. A complaint under this Act can be made to the Anti-Discrimination Board, and can ultimately be heard by the NSW Civil and Administrative Tribunal, which can make orders including for monetary damages.
The Commonwealth framework includes four main pieces of legislation dealing with discrimination based on different protected attributes:

• Age Discrimination Act 2004
• Disability Discrimination Act 1992
• Racial Discrimination Act 1975
• Sex Discrimination Act 1984.

In addition, the Australian Human Rights Commission Act 1986 (Cth) sets up the administrative framework for the making of complaints to the Australian Human Rights Commission, and ultimately for the complaints to be heard in the Federal Court or Federal Circuit Court.

Defining disability

The term 'disability' is very broadly defined in the legislation to cover physical, intellectual, and emotional impairments.
It includes:

• loss of bodily or mental functions or a part of the body
• the presence in the body of organisms causing (or capable of causing) disease or illness
• malfunction, malformation or disfigurement of a part of the body
• a disorder or malfunction that results in a person learning differently
• a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

The definition extends to, for example, allergies, anxiety disorder, conduct disorder, depression, and expressive and receptive language disorders.

Preventing and addressing disability discrimination

In relation to students with disabilities, the department must:

• treat all students with a disability on an equal basis – that is, as compared to students without a disability (this does not necessarily mean treating them the same – be aware of indirect discrimination)
• consult with parents/carers, and where appropriate, students with disability, about the student’s needs and the adjustments that might be provided
• make reasonable adjustments for students with disabilities and provide necessary support;
• develop and implement strategies to prevent harassment and victimisation of people with disability
• harassment means an action taken in relation to people with disability that is reasonably likely to humiliate, offend, intimidate or distress
• victimisation includes, for example, where a person subjects, or threatens to subject, another person to any detriment because that person has made, or proposes to make, a complaint to the Australian Human Rights Commission; and
• follow the applicable departmental policies, and keep a record of actions taken and the reasons for those actions.

A package of e-learning lessons on the Disability Discrimination Act 1992, with a focus on the Standards, has been developed to provide professional learning for teachers. These lessons are highly recommended for all staff and are mandatory for all school leaders who are substantive, relieving or acting in the roles of Director Educational Leadership, Principal, Deputy Principal, Assistant Principal and Head Teacher.

Supporting students with disability in schools

Under the Disability Standards for Education 2005 (the Standards), all principals and teachers have legal obligations to ensure students with disability can access and participate in education on the same basis as other students.
It is unlawful to contravene the Standards - they are formulated under the Disability Discrimination Act 1992 (Cth) (DDA) and have the force of law. A failure to comply with the Standards can be the subject of a complaint to the Australian Human Rights Commission.
The main obligations under the Standards are to facilitate the enrolment of students with disability, and enable their participation in education programs, on the same basis as students without disability. In addition to enrolment and participation, specific standards address curriculum development, student support services, and harassment and victimisation.

Consultation around disability

Consultation with a student or their ‘associate’ (usually their parent or carer) must occur in order to understand the impact of a student's disability and to determine whether any adjustments or changes are needed to assist the student. Depending on the circumstances, this may include talking about:

• the student’s needs and the type of assistance that may be needed
• the adjustments that could be made by the department to meet the student’s needs and whether these adjustments are reasonable
• whether there are any alternative adjustments that would be less disruptive and intrusive and no less beneficial for the student.

Reasonable adjustments

A failure to provide reasonable adjustments may amount to disability discrimination.
Part 3 of the Standards contains detailed provisions relating to making adjustments that by law must be considered. It should be read in full.
Examples of adjustments include:

• giving a student or parent with low vision all necessary enrolment information in enlarged text
• providing extra sessions teaching key words for a student with an intellectual disability
• giving a speech-to-text device to a student with a broken arm to assist in preparing assignments
• access to occupational therapy for students who require support to navigate the school grounds
• allowing a student with anxiety to present their project to a small group of peers rather than to a whole class
• ensuring appropriate transport is made available for all students to participate in excursions
• adjusting activities at the annual swimming carnival to enable participation by all students, including those with physical disability
• adjusting seating arrangements so a student with a wheelchair has enough space to move independently around the classroom like other students
• locating a classroom in an area of the school that is accessible to all students in the class, including those with mobility issues
• making multiple accommodations if necessary to meet a single learner's needs; for example, learners who require a sign-language interpreter may also need a note-taker because watching an interpreter prevents them from taking detailed notes
• adjusting arrangements for assessments or examinations.

When to contact Legal Services

There may be adjustments that are not reasonable in particular circumstances. There may also be occasions when compliance with the Standards might seem to impose ‘unjustifiable hardship’ on the department.
If you consider that particular adjustments may not be reasonable or that compliance with the Standards imposes unjustifiable hardship on the department, contact Legal Services for advice.

Clarifications and commonly asked questions

When an adjustment is reasonable

An adjustment is reasonable if it:

• supports a student with disability to participate in education on the same basis as other students
• takes into account the student’s learning needs
• balances the interests of the student with disability with the interests of staff members and other students.

In deciding whether an adjustment for a student with disability is reasonable, all relevant circumstances and information should be taken into account, including the:

• impact of the disability on the student’s learning, participation and independence
• views of the student with disability, or their associate, about their preferred adjustment
• impact of the adjustment on other students, staff members, the student’s family, and the department
• costs and benefits of making the adjustment
• need to maintain the essential requirements of the course or program.

When adjustments should be made

Reasonable adjustments should be made as soon as possible, to maximise the benefits for the student. What is reasonable for a particular student, or a group of students, with a particular disability, may change over the period of their education, and adjustments may need to be changed.

Does a disability have to be ‘confirmed’ to fall under the law?

A disability does not need to be 'confirmed' for it to come within the definition in the legislation.
The department uses the term 'confirmed disabilities' to refer to disabilities that have been confirmed using established disability criteria, which provides eligibility for targeted provisions only.
The definition also covers disabilities that presently exist, previously existed, or may exist in the future.

When potentially discriminatory actions are lawful

The Disability Discrimination Act 1992 (Cth) (DDA) provides that it is not unlawful to do a potentially discriminatory act if it is intended to ensure that people with disabilities have equal opportunities or affords people with disabilities the ability to meet their particular needs, in relation to areas such as education, employment, accommodation and the provision of goods and services.
The Anti-Discrimination Act 1977 (NSW) provides an exemption for special needs programs that are for the purposes of providing people, traditionally or more likely affected by unlawful discrimination, access to facilities, services or opportunities to meet their particular needs or promote equal or improved access.
Examples of potentially discriminatory actions that might be exempted include a program under which children with special needs are given priority during enrolment.

Specialised educational settings

Most students with disability are supported directly in their local school in mainstream classes. All students have a right to be enrolled in their local school.
Some students who meet the department’s disability criteria attend support classes or units within mainstream schools, Schools for Specific Purposes (SSPs) or other specialised educational settings.
SSPs provide specialist educational settings and intensive support for students with significant needs from preschool through to Year 12. These schools cater for students with moderate or high learning and support needs often associated with intellectual disability, autism, emotional disturbance or behaviour disorder, physical disability or sensory impairment.
Some of the reasonable adjustments implemented within these settings include:

• specialist support classes having fewer students than mainstream classes
• every specialist class having a teacher and a school learning support officer
• students having access to itinerant support teachers (hearing and/or vision)
• eligible students having access to transport assistance under the Assisted School Travel Program.

Specialist settings also maintain active links with other nearby schools and their local communities. Students attending specialist settings may have access to support classes in mainstream schools or mainstream classes and are supported to participate in community activities and training.

Personal liability

Usually, the department will be responsible – and liable – for the unlawfully discriminatory acts and omissions of a staff member.
On rare occasions, for instance if a staff member engages in deliberate unlawful discriminatory conduct, a staff member who does a discriminatory act will also be responsible.

Discrimination by students

Students sometimes discriminate against other students. However, young students are generally not bound by anti-discrimination laws, and the department is not liable for the actions of students.
However, a failure to take positive action in response to student behaviour may result in the department engaging in unlawful discrimination. For example, a school may be held to have treated a person unfavourably if it fails to have and enforce a student behaviour management policy that does what is reasonably practicable to prevent unlawful discrimination.

Discrimination against staff

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.
The department’s commitment to ensuring our workplaces are accessible and designed to maximise participation as well as create leadership opportunities for our employees with disability is outlined in the Diversity and Inclusion Strategy 2018-2022.

If you suspect unlawful discrimination

Managers and principals must take all necessary steps to ensure that workplaces and classrooms are free from unlawful discrimination, harassment or victimisation, and that their staff are informed of the principles of equal opportunity and anti-discrimination. Reports of such conduct must be taken seriously and appropriate action taken to prevent and correct the conduct.
Under the Code of Conduct, all staff are required to report such conduct to their supervisor or director.

Further information

Unlawful discrimination
Duty of care and behaviour management
Disability learning and support
A range of exemplars of good practice on effective adjustments, including how decisions are made on what is 'reasonable', can be found here:

• Exemplars of practice
• NCCD case study e-learning for primary schools
• NCCD case study e-learning for secondary schools
• Illustrations of practice
• Establishing a program inclusive of children with disability
• Specific education needs

First published: 2021-02-10

ID: LIB60, LIB 60, LIB-60