To Enrol or Not to Enrol: If This is the Question, Can it be Discriminatory?

30 August 2018

While children are of compulsory school age, they are legislatively required to be enrolled in some kind of education program recognised by legislation, which is usually through enrolment at a government or registered non-government school. Legislation also requires school students to attend the school on each day (or part of a day) that instruction is provided (refer to our previous School Governance article).

What constitutes compulsory school age varies between jurisdictions and has been amended over time. For example, in Western Australia, under the School Education Act 1999 (WA), a child must be enrolled in an educational program for each year of the ‘compulsory education period’ for that child. The term ‘compulsory education period’ currently means:

  • from the beginning of the year in which the child reaches the age of 5 years and 6 months; and
  • until either of the following happens:
    • the end of the year in which the child reaches the age of 17 years and 6 months; or
    • the child reaches the age of 18.

The primary responsibility for fulfilling enrolment obligations is placed on the parent/carer of the child but additional duties are placed on students in some instances. Schools also have legislatively defined responsibilities with respect to student enrolment, including maintaining an enrolment register with current particulars for students, including their name, age, address and contact details.

While there are many enrolment requirements common to schools by virtue of their jurisdiction's education framework, enrolment parameters can also differ depending on the structure of the relevant school, such as schools established as single sex or those that are identified as selective schools. Schools established by a religious denomination may have an enrolment policy that gives preference to adherents of that religious denomination or denominations or their children. But the enrolment of a student needs to be conducted in accordance with all applicable Commonwealth and state/territory laws, otherwise the enrolment (or deciding not to enrol) may be found to be discriminatory.

Two recent cases relating to enrolment decisions by schools, and potential discriminatory impacts, have brought the extent of school responsibilities in relation to enrolment into the spotlight.

Case 1: Disability Discrimination in Victoria

A young student from Victoria recently received a payout from the Victorian Education Department, after proceedings were brought alleging discrimination in contravention of the Disability Discrimination Act 1992 (Cth) (DD Act).

The student’s father took legal action on her behalf in the Federal Court, stating that she wasn’t able to meet the requirements of Year 11 because of her intellectual disability, and claiming that the school discriminated against her by moving her up to Year 11. He argued that moving her up a year would disadvantage her. The father also claimed that the two schools that had enrolled his daughter discriminated against her by refusing to allow her to attend school full-time and failing to provide protection from bullying.

A number of breaches of the DD Act were alleged, including:

  • section 5 – direct disability discrimination
  • section 6 – indirect disability discrimination
  • section 22 – discrimination by an education authority - relevantly in relation to these proceedings, it is unlawful for an educational authority to discriminate against a student on the ground of the student’s disability by denying/limiting the student’s access to any benefit provided, or by subjecting the student to any other detriment
  • section 32 – breach of the Disability Standards for Education – for example an educational authority must take reasonable steps to ensure that a prospective student with a disability can apply for enrolment on the same basis as a prospective student without a disability, and without experiencing discrimination.

The Court approved the confidential settlement on the basis that the settlement was in the child’s best interests but was not asked to determine the truthfulness of the allegations.

The Education Department continues to deny that the student was disadvantaged or treated less favourably by being progressed to Year 11, and that repeating Year 10 was not a required reasonable adjustment in the circumstances. A departmental spokesman stated that students should only repeat in exceptional circumstances when no other strategies or support could aid with regular progression through secondary education.

Case 2: Age Discrimination in Queensland

On 7 August 2018, the Queensland Civil and Administrative Tribunal dismissed an interim order to prevent the State of Queensland from removing a four-year-old girl from primary school.

The girl commenced her preparatory year in 2018, below the minimum age requirement under the Education (General Provisions) Regulation 2017 (Qld). After completing her first semester, the Queensland Department of Education identified that the girl was not eligible for enrolment due to her age, reflecting that the enrolment had been accepted in error by the school’s previous acting principal. The current acting principal notified her parents and cancelled her enrolment.

The girl’s father brought an age discrimination complaint to the Anti-Discrimination Commission, and lodged an application for an interim order to prevent the girl’s removal from the school until the matter was resolved.

Under sections 38 and 39 of the Anti-Discrimination Act 1991 (Qld), an educational authority must not discriminate on a number of bases, including:

  • failure to accept a person’s application for admission as a student
  • the terms on which a person is admitted as a student
  • denying or limiting access to any benefit arising from their enrolment
  • exclusion of a student.

Section 43 is one of a number of exceptions to potential discrimination in the education area. An educational authority may select students for an education program based on an admission scheme that has a minimum qualifying age.

The Tribunal found that the original decision to enrol the girl was invalid and of no effect because either there wasn't a power to make the decision, or the decision was validly repealed. The decision made to enrol was a decision which could be revisited, and was held to have been encompassed by section 43 and therefore was not unlawful discrimination.

Schools, Enrolment and Discrimination

The two cases, while from different jurisdictions and dealing with different types of discrimination, demonstrate that decisions made as part of the student enrolment process, and with respect to the ongoing enrolment of a student, are subject to scrutiny and may be challenged by students and their parents. Depending on the facts in particular scenarios, a decision made with respect to the enrolment of students or kinds of students may be considered direct or indirect discrimination under federal or state/territory legislation.

As a requirement of registration, schools in jurisdictions such as South Australia, Tasmania and Victoria need to have an enrolment policy in place which complies with all applicable laws. According to the Victorian Registration Guidelines, the intent of such a requirement is to ensure that a school has an enrolment policy which takes account of all laws, including those relating to discrimination. This requires the enrolment policy to account for the duty to make reasonable adjustments, equal opportunity, privacy and immunisation.

But even if an enrolment policy is not stipulated as a school registration requirement, failure to implement compliant enrolment procedures that clearly identify student enrolment parameters and the basis for enrolment/adjustment decisions may increase the chance of the school making a discriminatory decision in breach of legislation.

Kieran Seed

Kieran is a Legal Research Coordinator at CompliSpace. In his position, Kieran assists with drafting and review of governance, risk and compliance content programs and client-requested policies, while also writing regular articles for School Governance. Kieran’s key focus areas are student duty of care and school registration. Kieran studied at the University of Sydney, completing a Bachelor of Law and Bachelor of International and Global Studies majoring in Government and International Relations.