Lawsense Law School Conference - Discrimination Law and Current Issues

LawSense
School Law Conference
2017
Brett Wilson
Partner
22 March 2017

Objective … Provide an understanding of
Discrimination Law and Current Issues:
• Current Legal Framework;
• Current key issues, mental or physical disability
and LGBTI Students;
• Exceptions ‘unjustifiable hardship’ and reasonable
adjustments;
• Duty of Care v Discrimination; and
• Issues with transgender students.

Discrimination Laws …..
Anti Discrimination Act 1991 (QLD)
and
Sex Discrimination Act 1984 (Cth)
Racial Discrimination Act 1975 (Cth)
Disability Discrimination Act 1992 (Cth)
Operate in much the same way so we will focus on
QLD

Where do most problems arise
• Student admission or not;
• Treatment by school, staff and students; and
• Reasonable variations to rules and procedures;
in relation to disability, sexuality or race etc.

Discrimination can be:
Direct -
Treating someone less favourably that someone else
due to a characteristic they have.
Indirect -
Imposing a requirement or condition that has or is
likely to have the effect of disadvantaging persons
with a characteristic they have.

Section 7 - Discrimination Certain Attributes:
• Sex;
• Relationship Status;
• Pregnancy;
• Parental Status;
• Breastfeeding
• Age;

• Race;
• Impairment;
• Religious belief or religious activity;
• Political belief or activity;
• Lawful sexual activity;
• Gender identity;

• Sexuality; or
• Family responsibilities; or
• Trade Union activity; or
• Association with anyone with any of these
attributes.

Section 38 – Discrimination – Prospective Student
Unlawful for a school, on discriminatory grounds, to:
• Fail to accept an application for admission; or
• Vary the way in which application processed; or
• Arrangements or criteria used to decide; or
• Impose unfair terms on that persons admission.

Section 39 – Discrimination - Student
Unlawful for a school, on discriminatory grounds, to:
• Vary the terms of a students enrolment
• Denying or limiting a students access to any
benefit; or
• Excluding a students; or
• Treating a students unfavourably.

Discrimination Laws ….. Case Study
Junior School female student – Medical Device
• Student applied for admission, required a
medical device that injected medication
regularly;
• School refused on the basis of health and safety
for student, other students and staff.

Junior School Male with Autism – Violence
• Student admitted to school, knowledge of
autism;
• Student had a tendency to become ‘violent’
when frustrated;
• School excluded student on grounds of safety.

Junior School Male with Autism – Violence
• Student admitted to school, knowledge of
autism;
• Student had a tendency to become ‘violent’
when frustrated, school became aware after
admission;
• School excluded student on grounds of safety.

Parental Status – Fee Discount for School Staff
• Two boys, De-facto relationship, not natural
mother of students;
• Mother employed at school and employees got a
substantial fee discount;
• Fee discount refused as not natural mother.

Section 41 – Single Sex, Religion, impairment
A school may exclude:
• Applicants who are not of a particular sex or
religion; or
• Applicants who do not have a specific or general
impairment.

Section 44 – Impairment - Special Services
Not unlawful for a school to discriminate if:
• A person would require special services or
facilities; and
• The supply of those services or facilities would
impose an unjustifiable hardship on the school.

Duty of Care v Discrimination
Not unlawful for a school to discriminate if:
• A person would require special services or
facilities; and
• The supply of those services or facilities would
impose an unjustifiable hardship on the school.

What is your ‘Duty of Care’ …..
A legal obligation which is imposed on an individual
requiring a standard of reasonable care, whilst doing
something that may have an impact on others.
Tort of Negligence
If a person suffers injury as a result of another’s
negligence the sufferer is entitled to compensation
from the negligent party.

Duty of Care v Discrimination …….
• Limits of School Counsellor’s duty of care to:
• The Student;
• Other students;
• The School;
• The Parent; and
• Other teachers.

Duty of Care v Discrimination …..
If you identify or are informed of a risk, your duty of
care increases to the extent of your knowledge of
the risk.
That is unless a court determines that a reasonable
person in the circumstances should have been
aware of the risk.

Duty of Care v Discrimination …..
Reasonable Foreseeability
In your work if you perceive that a risk exists or may
arise as a result of a decision you make do
something to manage that risk.

Section 5 - Unjustifiable Hardship
Need to consider:
• Nature of the service or facilities;
• Cost of supply;
• Financial circumstances of the school;
• Disruption to the school; and
• Nature of the benefit detriment to the student.

Manage your Risk Profile …..
• Be consistent in your dealings.
• Be prompt, address matters quickly.
• Be confidential when required.
• Document the process, the reason why.
• Seek advice when uncertain.
• Use outside authorities to assist when
required.

DISCLAIMER
Please note that this Power Point and Presentation
is not legal advice and the material has been altered
to simplify and summarise the issues and the law,
and should not be relied upon in the provision of
legal advice or for any other purpose.

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