For schools and universities
Schools and universities have obligations under the Anti-Discrimination Act 1991.
Public schools and universities are also subject to the Human Rights Act 2019.
The Anti-Discrimination Act 1991 makes discrimination, sexual harassment and vilification in education against the law. The legislation applies to all facets of education, including:
- admission and enrolment applications
- terms of admission and enrolment
- variation of the terms of a student's enrolment
- denial or limitation of benefits normally resulting from enrolment
- exclusion or suspension of students
- assessment and examination
- access to resources and facilities
- treatment of a student in regard to training or instruction
Discrimination, sexual harassment and vilification in the classroom, lecture theatre, tutorial, training course, education workshop, information session, field trip, excursion or other similar educational setting or venue is also against the law.
The Act also confers certain rights and responsibilities on all educators, students and educational administrators and institutions.
The Human Rights Act 2019 creates additional obligations for public entities, which include public schools and universities.
Education provider rights and responsibilities
The Anti-Discrimination Act establishes a legal responsibility on educational institutions to provide workplaces free from discrimination, sexual harassment and vilification. The legislation also establishes a legal responsibility to provide fair and safe teaching and learning environments where all staff and students have equal opportunities.
Educational institutions need to therefore take reasonable steps to prevent or minimise these behaviours in the workplace. Reasonable steps might include the implementation of appropriate policies and practices, training and education of staff and the establishment of grievance and complaint procedures. The law does not define ‘reasonable steps’ because what is reasonable in one workplace might not be reasonable in another.
As an employer, an educational institution should formally counsel any employee who is engaging in discriminatory conduct while at work.
Student rights and responsibilities
All students have the right to be free from discrimination, sexual harassment and vilification in an educational setting. While some cases of discrimination between students can be complex, if students believe that this behaviour is occurring, they have the right to make a complaint to the Commission and seek a solution through conciliation.
When is different treatment allowed?
Particular exemptions mean that not all forms of discrimination are against the law in all circumstances. The Act provides a range of exemptions that can be argued. Only certain exemptions apply in relation to education. It is also possible to apply to the Civil and Administrative Tribunal for the granting of an exemption (for non-work related matters).
Exemptions recognise that in some circumstances discrimination can be acceptable provided it occurs for specific reasons or purposes. Whether a particular exemption will apply will usually be a question of fact, which only the Tribunal can decide. However, any possible exemption should be raised with the Commission as this may assist in conciliating a resolution of a complaint.
Welfare and equal opportunity measures
'Special measures' provisions are designed to benefit or promote equal opportunity for a member of a disadvantaged group or a person with particular needs, eg. special tertiary education entry programs for Indigenous Australians recognise the severe disadvantage they experience compared to others in terms of access to education.
Educational institutions catering for students of a particular sex, religion or general or specific impairment, can lawfully exclude students who are not of the particular sex or religion or who do not have a general or specific impairment.
Students may be selected for educational programs on the basis of a minimum qualifying age. This may include setting aside places for mature age students.
Supplying special services or facilities
An exemption may apply where supplying special services or facilities for a person with an impairment would impose an unjustifiable hardship on the educational institution. Educational institutions must offer equal opportunity to everyone and make reasonable adjustments to meet the needs of people with impairments. Discrimination against people with impairments, for example by refusing them enrolment in a tertiary degree program, is only lawful if the institution can demonstrate that it would impose an unjustifiable hardship to make reasonable adjustments. Factors that are relevant include the nature of the special service or facility, cost of supplying it, the number of people to benefit, the financial circumstances of the organisation, the disruption that the supplying of those services or facilities might cause and the nature of any benefit or detriment to all people concerned.
Participation in competitive sporting activities can be restricted on the basis of sex once a person turns 12 years old. Restricted participation must be reasonable and take into account the strength, stamina or physical requirements of the sporting activity. The legislation also allows restriction of participation in sport on the basis of age and impairment. This exemption does not apply to coaching, umpiring or sports administration.
Anyone who unfairly discriminates against another person, sexually harasses or vilifies them can be complained about and may be liable under the law. The law also allows for educational institutions and their employees or agents to be legally liable for this type of conduct occurring. This means that educational institutions can ultimately be held responsible for the behaviour of their employees or agents.
Complaints can therefore be made against individuals, staff and educational institutions. Previous cases show staff can be found jointly liable at law with the educational institution, including in the payment of compensation. In practice, this vicarious liability means that a complaint against an individual may also be sent to their employer.
An educational institution may be liable if a person could be seen as representing the institution or as acting on behalf of the institution. Regardless of whether they are on contract or an employee, a person might be considered to be an agent of the institution. The easiest way to work out if someone can be considered an agent is to think about whether others might see a connection or relationship between the two. An educational institution cannot avoid vicarious liability simply because it was not aware of the unlawful discrimination, sexual harassment or acts of vilification done by its employees or agents.
An educational institution may be able to successfully defend its vicarious liability if it can satisfactorily demonstrate that it took all reasonable steps to prevent discrimination, sexual harassment and vilification.
Requirements of education tuition and other conditions or practices must also be examined to ensure that indirect discrimination is not occurring. Often such rules or practices appear neutral when in fact they have a disproportionately negative impact on certain groups protected by the Act. If they do it will be against the law, unless it is reasonable.
For example, unless reasonable adjustments are made, assessment practices that require students to undertake a four hour exam may discriminate against people who are unable to sit for such a period of time because of a physical impairment arising from a back injury.
Schools and other educational institutions have a legal responsibility to make sure that they are as free from discrimination, sexual harassment and vilification as possible. This includes ensuring that all teachers and staff are aware of and understand anti-discrimination responsibilities. Developing anti-discrimination and sexual harassment policies and ensuring staff compliance is one way to achieve this.
It is very important that discriminatory behaviour is not condoned by teachers failing to reprimand or control discriminatory or harassing behaviour, comments and actions. For example, allowing racist behaviour in the classroom could lead to liability because the teacher could be seen as condoning it.
Many schools and other educational institutions also appoint discrimination and harassment contact officers so that students and staff can talk about what's happening. Contact officers are usually teachers trained to provide information to people who believe they have been unlawfully discriminated against, harassed or vilified.
Equity Contact Officers can often be referred to as Contact Officers, Discrimination and Harassment Contact Officers, Equity and Diversity Contact Officers or a variety of other titles, depending on the workplace.
The appointment and support of the Contact Officer is an indication of an employer's commitment to take incidents of discrimination and harassment seriously. It also assists educational institutions to discharge their responsibilities under the vicarious liability provisions of the Anti-Discrimination Act 1991.
Equity Contact Officers (ECOs) provide assistance to staff who are subjected to discrimination and harassment and support management in the prevention and elimination of such behaviour in the workplace.
The objective of having ECOs is to:
- raise staff awareness on harassment issues;
- educate staff on options available;
- facilitate early resolution of incidents of discrimination or harassment;
- provide a safe environment for staff to express concerns in a confidential manner;
- make recommendations to management about ways to prevent further incidents;
- assist in promoting a workplace free from discrimination and harassment.
While the Equity Contact Officer role is not defined in law it can be identified as a reasonable step to manage and prevent unacceptable workplace behaviours.
A sample role description is included in our Employer Toolkit (PDF File, 1.5 MB) .