RW v State of Victoria – Feb and Jul 2014

This case was a claim of indirect discrimination in education on the basis of disability, under both the Equal Opportunity Act 1995 (EOA 1995) and the Equal Opportunity Act 2010 (EOA 2010), and raises an educational authority’s obligation to make reasonable adjustments for a student with a disability under the Equal Opportunity Act 2010.

The case also included a claim of authorising and assisting against the school principal, as well as a claim that the educational authority failed to take the student’s human rights into consideration, and unreasonably limited those rights.

The Commission’s submissions from February 2014 consider:

• the interpretation of a claim of ‘indirect discrimination’ in the educational context, including:
• formulation of a “condition, requirement or practice”
• dealing with multi-part claims
• dealing with claims framed in the negative
• the obligation for an educational authority to make reasonable adjustments for a person with a disability under section 40
• the relevance of compliance with the Federal Disability Standards for Education 2005 outside of the context of subsection 40(4) of the Equal Opportunity Act 2010.
• the application and scope of the exceptions that the Respondents initially relied upon under the Equal Opportunity Act 1995 and the Equal Opportunity Act 2010 (noting that they did not seek to rely on these exceptions in closing submissions).
• the use of section 32 of the Charter when applying the statutory authority exception in section 69 of the Equal Opportunity Act 1995 and section 75 of the Equal Opportunity Act 2010.
• the scope and application of the rights in section 8, subsection 10(b), subsection 17(2), and subsections 21(1) – (3) of the Charter.
• how to assess whether there has been a breach of the Charter.

The Commission also filed supplementary submissions in response to the Respondent’s legal arguments. These submissions, both from July 2014 consider:

• the decisions of USL obo her son v Ballarat Christian College [2014] VCAT 623 and Testart v Phoenix [2014] VCAT 699
• the impact of section 32(3)(b) of the Charter on the validity of regulations
• the definition of “discrimination” in the Charter.

The Tribunal heard the application over 9 days in July, August and September. The claim was dismissed. A copy of the decision can be found on the Austlii website.

Note: A non-publication order applies to this matter preventing publishing of information that could lead to the identification of the applicant’s son. The Commission has amended its February 2014 submission to ensure that it complies with this order.