lutheran schools decisionNotice of HREOC exemption decision re: Lutheran Church of Australia Queensland District (10 June 1997)

Notice of decision
Recommendation of the Disability Discrimination Commissioner to the Commission

Disability Discrimination Act 1992

Application pursuant to section 55 for exemption from a provision or provisions of Part 2, Divisions 1 and 2

Notice of decision

Applicant: Lutheran Church of Australia Queensland District

Solicitor for applicant: Allen, Allen and Hemsley, Brisbane

Subject of application: That the applicant be authorised to institute a procedure for assessing the needs of students with disabilities at schools for which the applicant is responsible and, in the event of failure of that procedure in any individual case, to apply to the Commission for a specific exemption.

Decision of the Commission: The Commission declines to grant an exemption pursuant to section 55 of the Disability Discrimination Act 1992 in respect of the application dated 8 October 1996, by the Lutheran Church of Australia Queensland District.

Ronald Wilson
President, on behalf of the Commission
10 June 1997

Recommendation of the Disability Discrimination Commissioner to the Human Rights and Equal Opportunity Commission

I recommend that the Commission decline to grant a conditional exemption pursuant to section 55 of the Disability Discrimination Act 1992 in respect of the application dated 8 October 1996 by the Lutheran Church of Australia Queensland District.

1. Findings on material questions of fact
2. Reasons for recommendation
3. Conclusion and recommendation

1. Findings on material questions of fact

The decision in relation to this application does not depend on any findings on material questions of fact.

2. Reasons for recommendation

2.1 Applicant and activity for which exemption is sought
2.2 Affidavits supporting the application
2.3 Comments on the affidavits
2.4 Statutory provision from which exemption is sought
2.5 Grounds of the application

2.1 Applicant and activity for which exemption is sought

The applicant, the Lutheran Church of Australia Queensland District, is a religious organisation that is responsible for 23 schools in the State of Queensland. It applies for the following orders:

(1) that the applicant, or any of the schools administered under its authority, be authorised to assess, by use of suitably qualified persons, the physical, behavioural and intellectual status of a student enrolled or applying for enrolment to establish whether, or to what extent any disability exists;

(2) that the applicant, or any of the schools administered under its authority, may take steps, if a disability is established, to ascertain from suitably qualified persons any precautions, facilities or other measures which can be adopted to enable the student to participate, so far as is practicable, in the activities of the school concerned;

(3) that, if the assessment leads the applicant or the relevant school to the reasonable belief that a disability exists and that the disability requires treatment different from that given to other students, the following steps will occur:

  1. the applicant or the relevant school will consult with the parent(s) of the student, and with the student where appropriate, to attempt to reach agreement on a suitable course of action in the best interests of the student concerned, the other enrolled students, the school staff and the school itself;
  2. if no agreement can be reached, the applicant will refer the situation to a mediator approved by both the applicant and the parent(s), who will attempt to assist the parties reach a mutually acceptable understanding;
  3. if there is still no agreement, the applicant may make application to the Commission for a specific exemption from the requirements of the Act;

(4) such further or other orders as the Commission thinks fit.

2.2 Affidavits supporting the application

The application is supported by affidavits of Kenneth Charles Albinger and Joy Sylvia Ryan. Mr Albinger is Director for Schools for the applicant. Ms Ryan is Deputy Principal at Good News Lutheran School which is a school administered under the authority of the applicant.

The substantial paragraphs of Kenneth Albinger's affidavit state:

(2) The Lutheran Church of Australia Queensland District is responsible for 23 schools in Queensland.

(3) The schools can be divided into two categories:

  1. fourteen primary schools, which, with one exception, are conducted by the local congregation of the District. Typically, each would have a congregationally elected School Council. These schools, whilst not legally under the control of the applicant, in practice, respond to the applicant's guidance. In so far as they receive funding supplements from government, it is channelled through the applicant, via its Schools Department.
  2. nine secondary schools which are governed under the authority of a College Council. These Councils are subject, in the final analysis, to direction by the applicant through its Schools Department.

(4) Funding for any Lutheran school's operations is obtained from three sources in the following basic proportions:

  1. Commonwealth grants - approximately 30%;
  2. State Government grants - approximately 20%; and
  3. Fees and donations - approximately 50%.

(5) The applicant does not operate with a profit motive and, with the exception of budgeting for a minor operating surplus (approximately 2%) for future capital expenditure, all funds generated are utilised to cover the costs of the various schools' operations.

(6) It is part of the education policy of the Lutheran Church to provide equal opportunity to students, whether enrolled or potential applicants, irrespective of any particular attribute or disability held by the student. The Lutheran Church of Australia Queensland District By-Laws Part B, Schedule IV (relating to College Councils) states at clause 7 that:

    "Subject to the power of management vested in the Council, the College shall be open to persons without discrimination to class, race or belief."

    Further, we have a discrimination policy which formalises our longstanding approach to affected classes of student.

[A copy of that policy was attached to the application but is not reproduced here.]

(7) In my experience with the applicant, I have been involved with personally and consulted by other staff in relation to many students who suffer from disabilities. The following represents a number of disabilities which might arise and create significant problems within our school system:

  1. physical disabilities, such as a heart complaint, rendering a student's participation in some areas of strenuous activity a serious risk to health and safety;
  2. latent physical defects, such as a spinal disability, which may not be apparent from the student's appearance nor disclosed by the student or the parent(s), yet might be highly susceptible to damage from even minor physical contact;
  3. students that are particularly slow learners, such as those suffering from Down's syndrome, who are unable to keep pace with other students and might require the repetition of years;
  4. autistic children, who may require a withdrawal room and teacher's aide to enable them to receive adequate supervision;
  5. emotionally disturbed children, who may require staff to work with them individually to assist them to overcome their problems and copy with the course requirements;
  6. students with physical disabilities requiring the provision of specific equipment to enable them to be integrated within the school community;
  7. other types of student disabilities that are referred to by Joy Ryan in her affidavit sworn in these proceedings.

(8) The concerns that I have in relation to these types of students and others with significant disabilities include:

  1. the potential risk to the health and safety of a student with a disability through participating in activities which are reasonably likely to be injurious because of the disability. Those risks can be minimised if identified and addressed. In extreme cases, the risk may require the School to prevent the student from participating in certain activities if those activities could or would be injurious to the health of the student;
  2. the potential disruption or inconvenience to other students which may result from the special needs of the disabled child either because of inherent features of the disability or because of the special services required to assist with the education process;
  3. the potential effect on staff who are not equipped to deal with certain disabilities if the need for special facilities or services is not identified early in the child's education;
  4. the emotional trauma to which a staff member may be exposed in the event that a student with a disability suffers serious illness or injury during the course of an activity which presents a high degree of risk to the particular student;
  5. the possibilities of a disability being beyond the qualifications and experience to staff to manage without prejudice to the student in question;
  6. the risk of potential liability of the school in failing to balance its obligations under the Act with those owed to the student having the disability and all other students to take reasonable care to avoid foreseeable risks of injury; and
  7. the possibility of prohibitive costs in providing special services in some cases.

The substantial paragraphs of Joy Ryan's affidavit state:

2. .... I am ... a member of the Association of Independent Schools of Queensland (AISQ) Special Education Subcommittee for the distribution of funds under the National Equity Programme for Schools (NEPS).

3. Under that scheme, the Commonwealth provides funding to the AISQ to be allocated according to need. One of the criteria making a school eligible for funding is the enrolment of a student with an intellectual, sensory, physical, social or multiple impairment.

4. Each year, in or about August, schools within the AISQ have the opportunity to apply for funding under the NEPS guidelines. It is the responsibility of the subcommittee to review the applications, prioritise the claims, and to recommend an amount for each claimant, after taking into account the total funds available.

5. Because the NEPS funding is always inadequate to meet the full costs of education for schools having students with disabilities, students are ascertained as being within one of six levels of disability and learning difficulty.

[A copy of the criteria for the six levels was attached to the application but is not reproduced here]

The levels classify the degree of support that a student requires to access education as a result of the disability. Level 6 is the highest and most extreme classification.

6. Obtaining a credible ascertainment level is also a difficult exercise for non-government schools. Although government schools have no difficulty in funding an ascertainment of students with disabilities, private schools are not allocated funding for this purpose. In my experience, the cost of obtaining an accurate and reliable ascertainment is between $400 and $500 per student.

7. On last year's figures, funding was so limited that:

  1. Grants were limited to schools with students ascertained at level 5 or level 6; and
  2. The amount available for each individual student was a mere $1,350.

8. The consequence of these limits was that any school with students having disabilities ascertained at level 4 or below had to fund any additional expense without NEPS support.

9. In my experience on the subcommittee and with Good News, there are a number of disabilities which may require significant costs and practical difficulty within the school system. Disabilities may be:

  1. physical, from conditions such as cerebral palsy, epilepsy or spina bifida, each requiring extensive aide support;
  2. sensory, such as vision or hearing impairment requiring additional and specialised staff training;
  3. intellectual, such as in a student with Down's Syndrome, or a student with an otherwise well below average intelligence quotient, placing the student in a mild to moderate range of intellectual functioning;
  4. behavioural, such as in autistic children or those with other conduct disorders; and
  5. multiple, as in students with more than one of these specific categories of disability.

10. Many of these disabilities are of such a degree that they require extensive support, at an expense which is likely to be met by the school. The ascertainment levels from 3 upwards indicate the types of exceptional attention required.

11. By way of example, I refer to the experience of my own school, Good News. We presently have five students who are ascertained at level 4 or higher.

[A summary of their conditions and the services provided to them was attached to the application but is not reproduced here.]

The total cost of providing additional support services to these students in teacher aides alone amounts to $44,288 per year, comprising:

  • 30% of full time support teacher's time $13,528.00
  • 30-hour per week full time aide $18,460.00
  • 20-hour per week part time aide $12,300.00

12. Under the NEPS 1995 allocation, the school received a total of $5,400 (four students ascertained at level 5 or above at $1350 each), which left a shortfall in the sum of $38,888 to be made up from other funds available to the school.

13. In my experience, the situation at Good News is not an isolated one and rarely would available funding be sufficient to cover the costs of educating children with significant disabilities.

14. Apart from providing teacher aides, there are a range of other difficulties resulting from a student's unusual needs. In particular:

  1. some time and expense must be devoted to teacher training, such as the release of teachers to the Autistic Centre for training and attending workshops;
  2. teacher stress, which results from an inability to copy with the demands of educating students with special needs without adequate training or experience. I have been involved with a number of teachers who have indicated the serious effect a difficult student may have on their ability to teach both the student concerned and at large;
  3. the potential effect on other students in the class, who may be denied attention because of the special needs of a particular child. Additional time may be spent on teaching the child, or consulting the parent(s) or devising programmes specifically designed for that student;
  4. the effect on the child itself, whose interests require some special attention out of the ordinary class environment. Such short term individual treatment away from the rest of the class is practised and has proven effective, with the full approval of the children's parents at Good News;
  5. the safety and health of the child who may have the tendency to go missing, suffer a fit, or suffer injury if momentarily unsupervised.

15. From my perspective as Deputy Principal at Good News Lutheran School, there is no intention of limiting or avoiding our obligations as educators of students, disabled or otherwise. Our record in relating to educating students with disabilities stands for itself. However, I make this affidavit in support of the application on the basis that cooperation between school and parent is vital to the successful education and support of the child in question, and I believe that the applicant's proposal is worthy of endorsement.

2.3 Comments on the affidavits

I believe this application falls to be determined on questions of the construction of the DDA and not upon the material questions of fact described in the affidavits. I have included the substance of the affidavits because they provide first hand descriptions of the context which has given rise to the application. Notwithstanding that others may hold different views about how children with disabilities are to have their rights to education observed, it is fair and reasonable that the present applicant be given the chance to explain its motivation.

I have no doubt whatsoever that the practical and financial difficulties raised on behalf of the applicant affect many children, their parents and schools across Australia. This is a source of deep concern. The DDA is aimed at ensuring, by eliminating discrimination as far as possible, that people with disabilities exercise and enjoy the rights and responsibilities of the whole community. Access to education is fundamental to the exercise and enjoyment of those rights and it is incumbent on the community through its elected representatives in governments to ensure that sufficient resources are directed to universally accessible education.

2.4 Statutory provisions from which exemption is sought

The DDA provides as follows.

22. (1) It is unlawful for an educational authority to discriminate against a person on the ground of the person's disability or a disability of any of the other person's associates:

  1. by refusing or failing to accept the person's application for admission as a student; or
  2. in the terms or conditions on which it is prepared to admit the person as a student.

(2) It is unlawful for an educational authority to discriminate against a student on the ground of the student's disability or a disability of any of the student's associates:

  1. by denying the student access, or limiting the student's access, to any benefit provided by the educational authority; or
  2. by expelling the student; or
  3. by subjecting the student to any other detriment.

(3) This section does not render it unlawful to discriminate against a person on the ground of the person's disability in respect of admission to an educational institution established wholly or primarily for students who have a particular disability where the person does not have that particular disability.

(4) This section does not render it unlawful to refuse or fail to accept a person's application for admission as a student at an educational institution where the person, if admitted as a student by the educational authority, would require services or facilities that are not required by students who do not have a disability and the provision of which would impose unjustifiable hardship on the educational authority.

2.5 Grounds of the application

The grounds of the application are contained in the applicant's submission on section 22 of the DDA and the availability of a defence to a complaint lodged under it. For ease of reference I have added paragraph numbers to the applicant's submission and interpolated my comments where appropriate, as follows.

1. The significance of section 22 (4) of the Act cannot be understated. Unlike the Queensland legislation, which allows unjustifiable hardship to be advanced as a defence in respect of students who have already been enrolled, the Commonwealth provision does not.

2. The section assumes that schools will be acquainted with the physical and mental condition of each student at the time of enrolment and, after determining that unjustifiable hardship would not result from the admission, will proceed to accept the student. It also assumes that refusal of enrolment might occur at that stage if enrolment would cause unjustifiable hardship. However, unless careful investigation is carried out at the time of enrolment, those assumptions may well prove false. Should a student later present with a disability, even if management of that disability would cause unjustifiable hardship, the school will have no option to exclude the student.

Comment: The issue is not whether the school has no legal option to exclude the student. A decision to exclude is in the same category as the course of action outlined in paragraphs 1-3 of the application. That is, it remains within the discretion of the school to make its own operational decisions. The effect of subsection 22 (4) is to increase the chance of a complaint succeeding, if one were lodged. It is not necessarily the case that a decision to exclude a student would involve discrimination within the meanings of sections 5 or 6 of the DDA.

3. If one accepts that this state of affairs is not always reasonable, there must be some means for a school to take such reasonable steps as it considers appropriate to identify any disabilities. That is not to say that enrolment will be refused or that a student will be excluded. It is simply to enable the school to consider whether it is practical to accept or continue the enrolment and management of the student's disability.

4. It is for this reason alone that paragraphs 1 and 2 of the application have been so framed. We believe it is essential that these steps be permitted in fairness to all relevant parties, not least the student concerned. A failure to detect potential risks or special services and precautions to avoid them is not in anybody's interests.

5. We note from an earlier discussion that you agree that these steps are sensible and practical measures for a school to take, but query whether they were not already permissible under the legislation without the need for an exemption. The terms of the Act are equivocal in this regard, particularly section 5 which talks about an aggrieved person being treated "less favorably".

Comment: The proposal outlined in paragraphs 1 and 2 of the application appears on its face to be a reasonable approach. It may not be the only way of addressing these issues and it is possible that another institution would adopt a procedure that is either a variation on this theme or even one that is quite different. These matters are entirely outside the power of the Commission to approve or disapprove. The Commission's only role is to consider whether there are grounds for granting an exemption.

6. It is likely that examination and assessment will be proposed:

    i. Because of a patently obvious disability;
    ii. Because the student discloses the disability to the school at the time of applying for enrolment; or
    iii. Because the disability is discovered at a later stage, after enrolment has been accepted.

7. A student in any of these situations might well consider that they are being treated less favorably in being forced to submit to examination, testing and potentially prolonged discussion about the suitability of the enrolment. Objections are particularly likely among families which believe in mainstreaming without any special considerations for the child. Such a requirement would not be applied to all students because of great inconvenience and expense.

8. As the legislation presently stands, there is no comfort in obtaining the disabled person's consent as a means of legitimising an act of discrimination. While it might be argued that a family which refuses to allow an assessment to occur is proceeding at its own risk, we believe there are strong obligations, both legal and ethical, to ensure all appropriate measures are taken to allow the child to participate fully in the school's activities. That might well be impossible (in the case of providing special facilities) or hazardous (in the case of susceptibility to injury or damage) without the proper inquiries.

9. In a sense, the school is potentially in breach either:

    i. If it investigates; or
    ii. If it fails to and, as a result, neglects to provide the necessary facilities or take the necessary precautions.

Comment: There is a general defence available in the form of the special measures' provision of the DDA which appears in section 45 and applies to all the declarations of unlawful discrimination contained in DDA Part 2. Section 45 relevantly provides:

    45. This Part does not render it unlawful to do an act that is reasonably intended to:

      (a) ensure that persons who have a disability have equal opportunities with other persons in circumstances in relation to which a provision is made by this Act; or

      (b) afford persons who have a disability or a particular disability, goods or access to facilities, services or opportunities to meet their special needs in relation to:

        (I) employment, education, accommodation, clubs or sport; ... or

      (c) afford persons who have a disability or a particular disability, grants, benefits or programs, whether direct or indirect, to meet their special needs in relation to:

        (I) employment, education, accommodation, clubs or sport; ...

Notwithstanding the views I express below about the more specific defence of unjustifiable hardship, I believe that the issues raised in paragraphs 2 and 3 of the application are within the scope of section 45.

Where a school wishes to carry out procedures such as those described in the present application, then they will be entitled to assert the special measures defence. They may be subject to complaint but the DDA provides a framework in which they can justify their actions.

Although the measures proposed by the applicants would need to be tested in the circumstances of particular cases I have no hesitation in saying that the measures, if accurately described and conscientiously implemented, would fall within section 45. Such measures would be lawful and would not require exemptions.

11. Even if one were to assume that the defence of unjustifiable hardship allowed for the exclusion of a student whose enrolment had already been accepted, there are a number of issues which are considered in the supporting academic material which we believe are unlikely to be protected by the defence.

12. A reading of section 11 of the Act does not reveal specific considerations which might allow the defence to operate. For example, we have doubts that the terms of the defence could operate to prevent a student from participating in a particular sporting activity because of a fear on the school's part, supported by medical opinion, that participation could be injurious to the student's health. An injury to the student for which the school could not be held legally responsible may not amount to unjustifiable hardship from the school's perspective.

13. It appears to us that the defence is more concerned with the ability of the discriminator to provide appropriate conditions, after taking into account the potential effect on the student with the disability if that provision is not made.

14. Under the proposed application, the Commission always retains the ultimate right to permit or refuse a departure from the terms of the Act. An aggrieved student always retains the right to have the Commission determine the issue. Paragraph 3 (a) & (b) simply allow the parties to adopt a mutually acceptable solution without the cost and inconvenience of a consent application to the Commission. The applicant certainly intends to make individual exemption applications (as the terms of the application require) if the student in question maintains an objection supported by the act and insists upon compliance.

Comment: The Commission in any case retains the power, pursuant to section 55, to set terms and conditions on a grant of exemption. Insofar as paragraph 3 of the application allows the parties to settle issues for themselves, there is no need for the involvement of the Commission. In my view, there is no need for the involvement of the Commission in any case.

The Commission is not a regulatory body. It has no function under the DDA of enforcing compliance with the Act. The Commission does have the very important function of promoting the objects of the DDA but this falls far short of policing observance of the Act. The only legal sanction under the DDA for unlawful discrimination is that provided by the complaint handling process and the role of the Commission in that process is to receive, investigate and attempt to resolve complaints by conciliation. If conciliation fails then a hearing may be conducted and a determination issued.

15. For these reasons, we do not believe that an action plan will solve the immediate problem. While it appears to be a useful device to assist with compliance, it is closely linked with the defence of unjustifiable hardship through section 11 of the Act. In the case of current enrolment or discrimination complaints which do not fall within the defence, the action plan might not assist in protecting the school from liability or encourage it to reach agreement with a student, knowing that any arrangement must be approved by the Commission by way of formal exemption.

Comment: After receiving the present application I asked the applicants to consider whether in their circumstances an action plan made under section 61 of the DDA might serve instead of an exemption. I accept their response that in a strict legal sense an action plan, linked as it is to the defence of unjustifiable hardship, does not resolve the problem posed by subsection 22 (4).

The statutory concept of unjustifiable hardship contained in the DDA has the effect of saying that discriminatory conduct is prohibited unless not discriminating would impose an unjustifiable hardship. Each of the sections in Part 2, Divisions 1 and 2, of the DDA which declares discrimination to be unlawful in certain areas also contains a subsection providing for unjustifiable hardship. These subsections, in effect, allow a defence to be raised to a complaint alleging unlawful discrimination.

The relevant provision with respect to education is section 22. The section is structured in four subsections. Subsections 22(1) and 22(2) declare discrimination by educational institutions against students to be unlawful with respect to decisions before or on admission (subsection 22(1)) and to decisions after admission (subsection 22(2)). Subsection 22(3) concerns special schools. Subsection 22(4) contains the unjustifiable hardship provision but applies only to admission, that is, to the matters covered by subsection 22(1). It does not apply to expulsion, denial or limitation of access to benefits, or other detriment, that is, the matters covered by subsection 22(2).

In my opinion the effect of section 22 is that if a student is excluded at the outset, the institution may succeed in establishing the unjustifiable hardship defence under subsection 22(4); if the student is admitted, the defence is not available. On the face of it this would mean that where there is a possibility that adjustments, or other features of a student's participation, may impose unjustifiable hardship (or not be feasible at all), educational institutions may have an incentive to exclude students with a disability at the outset rather than admitting them and trying to achieve satisfactory resolution of any needs for adjustment.

In my view this is a most undesirable result that is out of keeping with the objects of the DDA. Such a position would undermine efforts, made in good faith, to achieve access, and thus undermine rather than promote the objects of the DDA. There is a risk that in some cases unjustifiable hardship will be imposed on the institutions or staff or on other students.

Experience to date indicates that in education more than in many other areas, the process of achieving equal access and opportunity may often require individualised consideration and interaction and that some solutions will be identifiable in the course of a student's participation which were not identifiable in advance. One cannot, however, assume that all access problems are able to be solved, and solved without unjustifiable hardship, if only the attempt is made. Moreover, as demonstrated by complaints experience in relation to both education and employment it is also the case that some problems only become apparent with experience. Equally, there are situations where unjustifiable hardship only becomes manifest as the circumstances of a particular case develop over time.

The clearest solution would be to amend section 22(4) to cover the matters within 22(2) as well as those within 22(1) currently covered. This would appear advisable since principles from decisions to date under the DDA do not appear to give much assistance on the point in question.

I have written to the Commonwealth Attorney-General pointing out the difficulties with this provision which have been raised by the present application.

Disability Standards could resolve issues in this area but their adoption must be some way off. There is a general consensus that of opinion that Standards should not depart substantially from the current effect of the DDA. Standards therefore are unlikely to apply an unjustifiable hardship exception to the matters in section 22(2) unless the same effect can be found in the existing provisions.

Finally, it is worth noting that there is, by implication, a test of "reasonableness" contained in DDA section 6 that is not affected by the absence of an unjustifiable hardship defence to section 22(2). Section 6 provides:

    6. For the purposes of this Act, a person ("discriminator") discriminates against another person ("aggrieved person") on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:

  1. with which a substantially higher proportion of persons without the disability comply or are able to comply; and
  2. which is not reasonable having regard to the circumstances of the case; and
  3. with which the aggrieved person does not or is not able to comply.

The applicants assert that they are at some risk of discrimination in individual cases. This may often be direct discrimination and, as I have pointed out above, if dealt with by way of appropriate special measures will be not unlawful. If the discrimination is indirect then in addition to the special measures defence the applicants could also find some degree of comfort in section 6.

To succeed, a complaint of indirect discrimination must satisfy each of the three criteria in section 6. It is possible that the scheme proposed in the application will be a significant matter to be overcome by any person seeking to show that a requirement of condition is not reasonable having regard to the circumstances of the case.

3. Conclusion and recommendation

Whatever the reason for the current form of DDA section 22 it must be presumed as it stands to reflect the intention of the Parliament. I accept the contention of the applicant that, with respect to the matters it raises, the defence of unjustifiable hardship is not available. In my view, however, a defence is available with respect to special measures under section 45 of the DDA. I think that this should alleviate concern on the question of disability discrimination complaints alleging less favourable or differential treatment being indefensible. That is to say, where the differential treatment is intended for the benefit of the student concerned a defence is available. Whether the defence succeeds is a question to be decided in each case.

With respect to paragraphs 1, 2 and 3 of the application, the Commission has no power to make decisions about the matters raised. The Commission cannot give a general authorisation, it can only deal with the question of the appropriateness of procedures in the circumstances of a particular complaint. The applicants are not at present seeking exemptions for conduct that would be unlawful.

With respect to paragraph 3(c), the Commission is always able to entertain an application for an exemption. In Re: Women's Legal Service the Commission accepted that the power to grant exemptions should only be exercised to further the objects of the DDA. Thus an applicant for an exemption would need to discharge a significant burden of proving that the public interest in furthering the objects of the DDA would be met if the exemption were granted. It is not a proper exercise of the exemption power only to construct a shield against discrimination complaints without advancing the objects of the DDA. In the present case, although it could be argued that the procedure the applicants wish to establish will benefit students with disabilities, the procedure cannot be directly assisted by an exercise of power by the Commission.

I recommend that the Commission decline to grant the application.

Elizabeth Hastings
Disability Discrimination Commissioner