It is unlawful to discriminate against a person on the basis of their disability: (The Disability Discrimination Act 1992). The obligations of educators and the rights of those with disabilities are further outlined in the Disability Standards for Education 2005.
Understanding Direct and Indirect Discrimination
Section 5(1) of the Act defines Direct Discrimination:”…a person (“discriminator”) discriminates against another person (“aggrieved person”) on the ground of a disability of the aggrieved person if, because of the aggrieved person’s disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in the circumstances that are the same or not materially different, the discriminator treats or would treat a person without the disability.
A person with a disability can also be discriminated against if the discriminator does not make, or does not propose to make reasonable adjustments for the person and the failure to make that adjustment results in less favourable treatment of the aggrieved person: (section 5(2) of the Act).
Discrimination can also occur indirectly: (section 6(1) and (2) of the Act). This occurs when the ‘discriminator’ requires, or proposes to require the aggrieved person to comply with a requirement or condition but because of the aggrieved person’s disability, they cannot or would not be able to comply. Indirect discrimination can also occur in circumstances where the discriminator requires an aggrieved person to comply with a requirement or condition that they would otherwise be able to comply with, if an adjustment is made, but has not been.
Consider the following example:
A student may have a disability which causes him/her to have outbursts of violence. He or she may target teachers and other students. As a result, the student may have been suspended or possibly expelled.
The student with a disability would be directly discriminated against if another student without a disability, exhibiting the same or similar violent outbursts, was not suspended or expelled.
Even where the violent behaviour is due to the particular disability suffered, a principal’s decision to suspend or expel the student for that behaviour could be upheld on the basis of that behaviour alone, provided it is in accordance with the school’s policies and procedures for suspension and expulsion.
These principles were confirmed in the High Court case of Purvis v State of New South Wales  HCA 62. The student suffered from a severe brain injury which caused him to have violent physical and verbal outbursts towards teachers and students. He was suspended and ultimately expelled from the school.
The court exonerated the school and found that the student’s behaviour, and not his disability, was the basis upon which the decision to expel him was made. The court found that a student who exhibited the same or similar violent behaviour, but did not suffer from a disability, could also have been suspended and/or expelled.
Similarly, in the case of Franks v Director General Department of Education and Training  NSWADT 78 , Dr and Mrs Franks commenced proceedings alleging that the school in which their autistic son, Austin, was enrolled discriminated against him on the ground of his disability by not permitting volunteers in the autism support unit classes. In order to substantiate their claim, not only did they need to prove that their son had a disability and that the provision of volunteers was a benefit to their son, they also had to demonstrate that the school treated their son less favourably than students in the same class who did not have a disability.
The Tribunal considered the case of Purvis in determining whether he was treated less favourably and in doing so, considered two possible comparators; (1) a child without autism in the same class as Austin who displayed challenging behaviour, as did the remainder of the students in the classroom. That class had a teachers’ aide present; and (2) a child without Austin’s disability in a mainstream class in which the remaining children also did not have a disability. In consideration of the first comparator it was determined that that child would not have been treated less favourably as that child would have had access to teachers’ aides and a similar structured routine as Austin.
In consideration of the second comparator, it was noted that there are a number of variables that would need to be known in determining the basis for having a volunteer in the class, such as the teacher to student ratio, the needs of each student and whether there were any other student’s in that classroom with a similar or different disability to Austin. In the absence of that information, it could not be determined whether a volunteer would have had any benefit to that classroom setting.
The Tribunal dismissed the case on the basis that a student without autism in the same class as Austin, who also had access to a teachers’ aide, would not have been treated less favourably by not having additional volunteers present in the classroom. The decision to have volunteers in the classroom was determined not to be a benefit to Austin, and accordingly, would not have been a benefit to the other students as well.
Implications for Schools
The judgment in Purvis and the decision of the Tribunal in the Franks case are favourable for schools in their ongoing dealing with similar complaints and proceedings. Whilst schools must be aware of the governing legislation in relation to discrimination and the circumstances in which reasonable adjustments ought to be made, these cases demonstrate that in applying the comparisons outlined above, schools are not automatically found to have discriminated against a student with a disability if it can be shown that another student in a similar setting who does not suffer from a disability would have been treated in the same way.