New South Wales (Department of Education) v Human Rights and Equal Opportunity Commission

The case of New South Wales (Department of Education) v Human Rights and Equal Opportunity Commission concerned the expulsion of a student with a severe intellectual disability from a public school in New South Wales. The Human Rights and Equal Opportunity Commission (HREOC) had found that the Department of Education’s actions amounted to unlawful discrimination against the student on the grounds of disability, contrary to the Disability (Access to Premises - Schools) Act 1996 (Cth). The Department of Education appealed the decision, arguing that the HREOC had erred in its interpretation of the relevant provisions of the Act.

The central legal issue in the case was whether the HREOC had correctly interpreted the phrase "discrimination on the ground of a disability" in s 5 of the Act. The Department of Education contended that the HREOC had erred in its choice of an appropriate comparator for the purposes of determining whether the student had been discriminated against. The court had to decide whether the HREOC’s interpretation of the phrase "discrimination on the ground of a disability" and its choice of an appropriate comparator were correct.

In its judgment, the court found that the HREOC had erred in its interpretation of the phrase "discrimination on the ground of a disability" in s 5 and in the choice of an appropriate comparator. The court held that it was not self-evident that s 6 of the Act did not apply and that the behaviour condition requirement imposed on the student was not necessarily unreasonable, given his disability. The court concluded that the HREOC had not properly considered the relevant provisions of the Act and that its decision should be set aside. The matter was remitted to the HREOC for further consideration according to law.

The court ordered that the decision of the HREOC be set aside, the matter be remitted to the HREOC for further findings and recommendations, and the Department of Education pay the costs of the proceeding.