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Discrimination

There is considerable overlap between Commonwealth and state laws prohibiting various kinds of discrimination. For general discussion about discrimination laws, and complaints procedures, see Chapter 17: Discrimination.

In general, Australian laws prohibit discrimination on the basis of race, sex, impairment (bodily, psychological or emotional disorder), lawful sexual activity, sexual orientation, gender identity, political or religious belief, industrial activity, marital status or status as a parent or carer. None of the Acts (except the Racial and Religious Tolerance Act 2001 (Vic)) make discrimination a criminal offence; instead they enable the parties to resolve their dispute by conciliation. If it is impossible to resolve the dispute by conciliation, an appropriate anti-discrimination tribunal (such as the Victorian Human Rights and Equal Opportunity Commission or Australian Human Rights Commission) may arbitrate on the issue. See Chapter 17: Discrimination, for further information about these Commissions.

Australia is also a signatory to international agreements in this area; see “UN Convention on the Rights of the Child ”, in Chapter 6.1: The Rights and Duties of Young People, and “ Optional Covenant to the International Covenant on the Civil and Political Rights ”, in Chapter 17: Discrimination. In 2007, Australia signed to the United Nations Convention on the Rights of Persons with Disabilities.

The Equal Opportunity Act 2010 (Vic) defines discrimination as “direct or indirect discrimination on the basis of which discrimination is prohibited in the areas of activity:

  • age;
  • breastfeeding;
  • employment activity;
  • gender identity;
  • impairment;
  • industrial activity;
  • lawful sexual activity;
  • marital status;
  • parental status or status as a carer;
  • physical features;
  • political belief or activity;
  • pregnancy;
  • race;
  • religious belief or activity;
  • sex;
  • sexual orientation;
  • personal association (whether as a relative or otherwise) with a person who is identified by reference to any of the above attributes”.

The EO Act prohibits both direct and indirect discrimination. A school may directly discriminate between pupils if, for example, it offers home economics, secretarial studies or hairdressing courses only to girls and woodwork, carpentry, computer studies or photography only to boys. A school may indirectly discriminate between pupils if it has policies that on the surface seem fair but result in treating some people less favourably than others. For example, a school policy that winter school uniform for girls is a woollen skirt (but not trousers) may discriminate against students with health problems (such as arthritis) and pupils from some religious backgrounds. For example, in Christian Family Schools Association of Australia v Public Transport Corporation [1990] EOC 92–300, a policy granting transport concessions to children approved by the Ministry of Education was held to indirectly discriminate against a child who was educated at home because of his father’s religious beliefs.

In Girton Grammar School Ltd v Cope (1995) EOC 92–713 (Supreme Court of Victoria), a male student was suspended from school because he refused to comply with school’s uniform policy. The policy required boys to have hair not longer than collar length, but that requirement did not apply to girls. The Victorian Equal Opportunity Board found that the boy was discriminated against and on appeal the decision was upheld by the higher court.

Victoria amended the EO Act to provide that education authorities may discriminate against pupils in co-educational schools (in both the public and independent school systems) if they apply different standards of appearance, behaviour or dress code. There are instances where pupils challenged the school policy on specific hair length for boys and girls and wearing jewellery, including religious symbols, in schools.

In 2002, a student in an elite non-government school in Melbourne sued the school alleging that he suffered discrimination at school because of his sexuality. He alleged that school staff told him that he had the “devil in him” and he suffered bullying from his class mates, so much so that the principal advised him to hide his sexuality. His “invisibility”, he alleged, would offer him the protection he needed at school.

Schools are liable not only for their acts of discrimination but also for the acts or omissions of their staff such as teachers, school counsellors, welfare officers, sports instructors, general staff and volunteers. It is unlawful to victimise someone who has, or is likely, to make a complaint of discrimination.

Equal Opportunity, Discrimination and Harassment policies for Victorian state schools are available at www.education.vic.gov.au/hrweb/divequity/eeo.

Permissible discrimination

There are many areas where discrimination is allowed to occur, although the law may differ between the Commonwealth and the state.

It is lawful to establish and run schools for:

  • a single sex (exclusive boys’ or girls’ schools, or a women’s college);
  • pupils with disabilities (special schools for children with intellectual disabilities, hearing or speech impairments);
  • a particular religious faith (e.g. Islamic schools); or
  • a particular race (Indigenous Australians or Maoris in New Zealand).

It is lawful for schools to set and enforce reasonable standards of dress, appearance or behaviour of pupils. It is lawful for a religious educational body to discriminate against people if it is essential to avoid offending behaviours (homosexuality, de facto relationships, body piercing, tattooing, etc.) in that religion.

Under Commonwealth laws, the educational authorities may refuse to admit students to their educational and training programs if it will create “unjustifiable hardship” to the organisation.

In Victoria, discrimination in education on the grounds of impairment is permissible where necessary facilities cannot reasonably be provided.

In 2005, Disability Standards for Education was introduced by the Commonwealth Government. These Disability Standards provided clear guidelines for schools (both public and private) regarding their obligations under the disability discrimination laws in Australia. The Disability Standards set out reasonable steps schools should undertake to ensure that students with disabilities are provided with opportunities to realise their full potential.

Schools can by-pass the Disability Standards if it would cause “unjustifiable hardship” for them. The fact that a school has to spend extra money to accommodate the disabled pupil’s needs would not necessarily seen as an unjustifiable hardship by courts.

There is considerable case law on the issue of discrimination, both under the Commonwealth and state legislation. See, for example, Purvis v New South Wales (Department of Education and Training) [2003] HCA 62; L v Minister of Education Queensland (1996) EOC 92–787; Leighton v State of Victoria [2000] VCAT 416; and Zygorodimos v Department of Education and Training [2004] VCAT 128.

The Victorian Parliament passed the Equal Opportunity Amendment Act 2011 (Vic). Part 3 of the new Act came into operation in August 2011. For information on the new Act, see www.legislation.vic.gov.au.

Making a complaint

It is not possible to make a complaint under both Commonwealth and state anti-discrimination legislation. Before lodging a complaint of discrimination, it is important to check with Victorian Equal Opportunity and Human Rights Commission.

Victorian Equal Opportunity and Human Rights Commission
Level 3, 380 Lonsdale Street, Melbourne Vic 3000
Tel: 1300 891 848
TTY: 1300 289 621
Email: information@veohrc.vic.gov.au
Web: www.humanrightscommission.vic.gov.au
Complaints and advice: 
Tel: 1300 292 153 TTY: 1300 289 621
Email: complaints@veohrc.vic.gov.au

From 1 March 2003 complaints of discrimination under the Commonwealth Racial Discrimination, Disability Discrimination and Sex Discrimination Acts cannot be lodged with the Victorian Equal Opportunity and Human Rights Commission. Complaints under these Acts should be made to:

Australian Human Rights Commission
Complaint Handling Section
GPO Box 5218, Sydney NSW 2001
Tel: (02) 9284 9888; 1300 656 419
TTY: 1800 620 241
Email: complaintsinfo@humanrights.gov.au
Web: www.humanrights.gov.au

Discrimination :: Last updated: Sun Jun 30th 2013