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Chapter 7 Section D: Education and training

This section of the Manual deals with education and training. You can find out more about:

• Discrimination in education and training
• Education support services for people with mental health conditions

7D.1: Discrimination in education

This section of the Manual is about your rights in education and you can find out more about:

• What is unlawful discrimination in education and training?
• What obligations education and training providers have to avoid discrimination?
• What questions can education and training providers ask?
• How to complain about discrimination in education and training

You can also find out more about your right to be free from discrimination in relation to education on the Australian Human Rights Commission’s website by clicking here.

This chapter deals with your right not to be discriminated against because of disabilityDisability is defined in the Disability Discrimination Act 1992 (Cth) as total or partial loss of the person’s bodily or mental functions; total or partial loss of a part of the body; the presence in the body of organisms causing disease or illness, capable of causing disease or illness; the malfunction, malformation or disfigurement of a part of the person’s body; a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. More. In addition, you have a right not to be discriminated against in circumstances (including) in education and training on the basis that you have one or a number of other personal characteristics, including your:

• gender identity
• marital or relationship status
• sexual preference
• racial or religious background
• age; and/or
• responsibility for the care of others.

You can find out more about these other types of discrimination from the Australian Human Rights Commission and, in NSW, from the Anti-Discrimination Board of NSW.

7D.1.1: What is unlawful discrimination in education and training?

There are several things that might happen to you in relation to education that may be unlawful discrimination. There are also things that might happen that may be discrimination, but not unlawful discrimination. For an action to be unlawful discrimination, it needs to be more than simply unfair. It must relate somehow to the fact that you have a disabilityDisability is defined in the Disability Discrimination Act 1992 (Cth) as total or partial loss of the person’s bodily or mental functions; total or partial loss of a part of the body; the presence in the body of organisms causing disease or illness, capable of causing disease or illness; the malfunction, malformation or disfigurement of a part of the person’s body; a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. More and that the person discriminating against you by an action doesn’t have a lawful excuse or ‘defence’.

In general terms, you have been discriminated against if:

• you are treated less favourably in relation to any aspect of education or training than another person who doesn’t have the same disabilityDisability is defined in the Disability Discrimination Act 1992 (Cth) as total or partial loss of the person’s bodily or mental functions; total or partial loss of a part of the body; the presence in the body of organisms causing disease or illness, capable of causing disease or illness; the malfunction, malformation or disfigurement of a part of the person’s body; a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. More as would have been treated; and/or
• you need some sort of adjustment to the way in which education or training is provided because of your disabilityDisability is defined in the Disability Discrimination Act 1992 (Cth) as total or partial loss of the person’s bodily or mental functions; total or partial loss of a part of the body; the presence in the body of organisms causing disease or illness, capable of causing disease or illness; the malfunction, malformation or disfigurement of a part of the person’s body; a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. More and the education providerIn the context of the NDIS, a provider is someone who provides products or services to assist NDIS participants to achieve the goals outlined in their plan. If you do not self-manage any of your NDIS funding, as an NDIS participant you are required to use providers who are registered with the NDIS Quality and Safeguards Commission. All registered NDIS providers; must implement and comply with appropriate WHS and quality management systems, that meet NDIS practice standard requirements, the NDIS rules, and are relevant to the NDIS supports delivered. In the context of mental health and psychosocial services, a provider may be any service that provide clinical care and treatment or psychosocial rehabilitation and support services including, but not limited to housing, employment, education and training as well as information and advocacy services. More fails to make that adjustment; and/or
• you must comply with a rule or requirement to access or participate in the education or training that you either can’t or would find it difficult to comply with because of your disabilityDisability is defined in the Disability Discrimination Act 1992 (Cth) as total or partial loss of the person’s bodily or mental functions; total or partial loss of a part of the body; the presence in the body of organisms causing disease or illness, capable of causing disease or illness; the malfunction, malformation or disfigurement of a part of the person’s body; a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. More.

It becomes unlawful discrimination if the education and training organisation does not have a lawful defence.

An education and training organisation can lawfully excuse its conduct if:

• the adjustment you need is not a reasonable adjustment because to make the adjustment would cause the education providerIn the context of the NDIS, a provider is someone who provides products or services to assist NDIS participants to achieve the goals outlined in their plan. If you do not self-manage any of your NDIS funding, as an NDIS participant you are required to use providers who are registered with the NDIS Quality and Safeguards Commission. All registered NDIS providers; must implement and comply with appropriate WHS and quality management systems, that meet NDIS practice standard requirements, the NDIS rules, and are relevant to the NDIS supports delivered. In the context of mental health and psychosocial services, a provider may be any service that provide clinical care and treatment or psychosocial rehabilitation and support services including, but not limited to housing, employment, education and training as well as information and advocacy services. More to suffer an unjustifiable hardship.
• to not discriminate would cause an unjustifiable hardship to the education providerIn the context of the NDIS, a provider is someone who provides products or services to assist NDIS participants to achieve the goals outlined in their plan. If you do not self-manage any of your NDIS funding, as an NDIS participant you are required to use providers who are registered with the NDIS Quality and Safeguards Commission. All registered NDIS providers; must implement and comply with appropriate WHS and quality management systems, that meet NDIS practice standard requirements, the NDIS rules, and are relevant to the NDIS supports delivered. In the context of mental health and psychosocial services, a provider may be any service that provide clinical care and treatment or psychosocial rehabilitation and support services including, but not limited to housing, employment, education and training as well as information and advocacy services. More
• the education providerIn the context of the NDIS, a provider is someone who provides products or services to assist NDIS participants to achieve the goals outlined in their plan. If you do not self-manage any of your NDIS funding, as an NDIS participant you are required to use providers who are registered with the NDIS Quality and Safeguards Commission. All registered NDIS providers; must implement and comply with appropriate WHS and quality management systems, that meet NDIS practice standard requirements, the NDIS rules, and are relevant to the NDIS supports delivered. In the context of mental health and psychosocial services, a provider may be any service that provide clinical care and treatment or psychosocial rehabilitation and support services including, but not limited to housing, employment, education and training as well as information and advocacy services. More can show that it has done what is required by the DisabilityDisability is defined in the Disability Discrimination Act 1992 (Cth) as total or partial loss of the person’s bodily or mental functions; total or partial loss of a part of the body; the presence in the body of organisms causing disease or illness, capable of causing disease or illness; the malfunction, malformation or disfigurement of a part of the person’s body; a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. More Standards for Education 2005 (Cth).

To read a fact sheet, click here

Discrimination law dealing with education doesn’t just apply once you have been accepted into a course. It also applies to the application or enrolment process.

Discrimination law also applies to a number of aspects of education including whether you get access to any benefits provided by the education providerIn the context of the NDIS, a provider is someone who provides products or services to assist NDIS participants to achieve the goals outlined in their plan. If you do not self-manage any of your NDIS funding, as an NDIS participant you are required to use providers who are registered with the NDIS Quality and Safeguards Commission. All registered NDIS providers; must implement and comply with appropriate WHS and quality management systems, that meet NDIS practice standard requirements, the NDIS rules, and are relevant to the NDIS supports delivered. In the context of mental health and psychosocial services, a provider may be any service that provide clinical care and treatment or psychosocial rehabilitation and support services including, but not limited to housing, employment, education and training as well as information and advocacy services. More such as sporting facilities, libraries, etc; and also to being suspended or expelled from the education or training.

Discrimination laws also cover organisations that develop curriculum, not just the institutions that provide the actual teaching.

If you think you have been discriminated against, you should get legal advice. You can get free legal advice about discrimination from a range of places. Click here to find out more.

To find out more about how to complain about discrimination, click here.

7D.1.2: What obligations do education and training providers have?

Education and training organisations are obliged to treat people who use their services fairly and without discrimination. They also must make sure that their staff and other students don’t harass, humiliate or victimise you because, for example, of your mental health conditionThe term mental health condition is a broad term that refers to symptoms that may be caused by life events, genetic factors or birth defects. This condition can be temporary, episodic or lifelong. A mental health condition can include mood, anxiety, personality, psychotic and compulsive disorders. It includes, but is not limited to, those conditions and symptoms recognised as constituting mental illness under the Mental Health Act 2007 (NSW). More.

Education and training providers must make sure that the following aspects of education and training provision are all non-discriminatory:

• the enrolment process and selection of students for admission
• participation in the course or program and access to the facilities and services provided to students, such as course materials, library materials, sporting facilities, social activities, etc
• the development of curriculum, course design, process for assessment of students; and
• access to support programs.

The DisabilityDisability is defined in the Disability Discrimination Act 1992 (Cth) as total or partial loss of the person’s bodily or mental functions; total or partial loss of a part of the body; the presence in the body of organisms causing disease or illness, capable of causing disease or illness; the malfunction, malformation or disfigurement of a part of the person’s body; a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. More Standards for Education 2005 (Cth) set out in detail the obligations on education and training organisations to prevent discrimination.

You may have a disabilityDisability is defined in the Disability Discrimination Act 1992 (Cth) as total or partial loss of the person’s bodily or mental functions; total or partial loss of a part of the body; the presence in the body of organisms causing disease or illness, capable of causing disease or illness; the malfunction, malformation or disfigurement of a part of the person’s body; a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. More discrimination complaint if, for example:

• the enrolment or student selection process is discriminatory
• you need an adjustment to the enrolment process and your request is refused
• you ask for an adjustment to the way the course is delivered or the way in which you are provided with course materials and the education or training providerIn the context of the NDIS, a provider is someone who provides products or services to assist NDIS participants to achieve the goals outlined in their plan. If you do not self-manage any of your NDIS funding, as an NDIS participant you are required to use providers who are registered with the NDIS Quality and Safeguards Commission. All registered NDIS providers; must implement and comply with appropriate WHS and quality management systems, that meet NDIS practice standard requirements, the NDIS rules, and are relevant to the NDIS supports delivered. In the context of mental health and psychosocial services, a provider may be any service that provide clinical care and treatment or psychosocial rehabilitation and support services including, but not limited to housing, employment, education and training as well as information and advocacy services. More fails or refuses to provide it
• you are called names, are the subject of jokes or put-downs, or face any other humiliation or bullying in the education or training setting
• you are not adequately consulted about your requirements.

If you think you have been discriminated against, you should get legal advice. You can get free legal advice about discrimination from a range of places.

Click here to find out more.

To find out more about making a complaint of discrimination, click here.

7D.1.3: What questions can education and training providers ask?

Education and training organisations can ask questions that help them to decide whether or not you meet the entry requirements (if any) for a course. They can also ask questions about what adjustments you might require in order to have equal opportunity in the course or training and any assessment process. They are not permitted to ask such questions in order to discriminate against you.

If you think you have been asked discriminatory questions, you should get legal advice. You can get free legal advice about discrimination from a range of places. Click here to find out more.

7D.1.4: Complaining about discrimination in education and training

If you think you have been discriminated in education because of a disabilityDisability is defined in the Disability Discrimination Act 1992 (Cth) as total or partial loss of the person’s bodily or mental functions; total or partial loss of a part of the body; the presence in the body of organisms causing disease or illness, capable of causing disease or illness; the malfunction, malformation or disfigurement of a part of the person’s body; a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. More (which includes mental health conditions), you should raise this with your education or training organisation if you can. They may have a complaints procedure, or someone in the student welfare department who can help you. You should provide details of when you experienced discrimination. It can help to put these concerns in writing.

If approaching your education or training organisation does not help resolve the issue, If you think you have been discriminated against in education because of a disabilityDisability is defined in the Disability Discrimination Act 1992 (Cth) as total or partial loss of the person’s bodily or mental functions; total or partial loss of a part of the body; the presence in the body of organisms causing disease or illness, capable of causing disease or illness; the malfunction, malformation or disfigurement of a part of the person’s body; a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. More (which includes a mental health conditionThe term mental health condition is a broad term that refers to symptoms that may be caused by life events, genetic factors or birth defects. This condition can be temporary, episodic or lifelong. A mental health condition can include mood, anxiety, personality, psychotic and compulsive disorders. It includes, but is not limited to, those conditions and symptoms recognised as constituting mental illness under the Mental Health Act 2007 (NSW). More) you can complain to one of the following organisations:

The Australian Human Rights Commission; or

The Anti-Discrimination Board of NSW.

These bodies both investigate and try to resolve complaints of discrimination including education discrimination. Both have a complaints form available online.

Complaints to the ADB should be made within twelve (12) months of the actions that you believe were unlawful discrimination. Complaints to the AHRC should be made six (6) months of the actions that you believe were unlawful discrimination. You should ask the ADB or AHRC for more information about the time limit that applies for your particular complaint.

The Australian Human Rights Commission can be contacted by:

Phone: 1300 656 419 (local call cost*)
(02) 9284 9888
Email: complaintsinfo@humanrights.gov.au
Teletypewriter (TTY): 1800 620 241 (freecall*)
Fax: (02) 9284 9611

Click here for the Commission’s Online complaints form.

For more about the Australian Human Rights Commission’s processes and what happens with discrimination complaints made to the Commission, click here.

Anti-Discrimination NSW can be contacted by:

Sydney office
Postal address: PO Box A2122
SYDNEY SOUTH NSW 1235
Street address: Level 4, 175 Castlereagh Street
SYDNEY NSW 2000
Telephone: (02) 9268 5544
Freecall: 1800 670 812* (for rural and regional NSW only)
Teletypewriter (TTY): (02) 9268 5522
Fax: (02) 9268 5500
E-mail: adbcontact@agd.nsw.gov.au
Website: www.lawlink.nsw.gov.au/adb

Wollongong office
Postal address: PO Box 67
WOLLONGONG NSW 2520
Street address: 84 Crown Street
WOLLONGONG NSW 2500
Telephone: (02) 4267 6200
Freecall: 1800 670 812* (for rural and regional NSW only)
Teletypewriter (TTY): (02) 4267 6267
Fax: (02) 4267 6261

Parramatta office
Street address: Street address: Level 7, 10 Valentine Avenue,
Parramatta, NSW, 2150
Telephone: (02) 9268 5555
Freecall: 1800 670 812* (only within NSW)
Fax: (02) 9268 5500

Click here to go to the page where you can download the Board’s complaint form.

For more about the Anti-Discrimination Board’s processes and what happens with discrimination complaints made to the Board, click here.

If you think you have been discriminated against, you should get legal advice. You can get free legal advice about discrimination from several places. Click here to find out more.

*Mobile phone calls to freecall numbers (numbers starting with 1800) and to local call numbers (numbers starting with 1300) are charged to the caller at the usual mobile rate.

7D.2: Education support services for people with mental health conditions

Most public education providers, such as the NSW Education Department, the TAFE (Technical and Further Education) sector and universities, have some support services to help people with disabilityDisability is defined in the Disability Discrimination Act 1992 (Cth) as total or partial loss of the person’s bodily or mental functions; total or partial loss of a part of the body; the presence in the body of organisms causing disease or illness, capable of causing disease or illness; the malfunction, malformation or disfigurement of a part of the person’s body; a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. More. For example, many universities offer free counselling for students. Some, but not all, private education and training providers (including schools, tertiary and vocational education and training providers) also have support programs.

You can find out more about the supports available by searching the NSW Department of Education and Communities website.

If you are thinking about enrolling in an education or training course and think that you will need support because of your mental health conditionThe term mental health condition is a broad term that refers to symptoms that may be caused by life events, genetic factors or birth defects. This condition can be temporary, episodic or lifelong. A mental health condition can include mood, anxiety, personality, psychotic and compulsive disorders. It includes, but is not limited to, those conditions and symptoms recognised as constituting mental illness under the Mental Health Act 2007 (NSW). More, you should contact the education organisation and ask them what support programs they have in place.

Updated May 20, 2020