(NSW) Repeal Exemption to Disability Discrimination in Private Educational Authorities
- Abbey Bailey, Mieke Crighton & Emmaby Barton Grace
- Aug 25
- 8 min read
Author: Abbey Bailey, Mieke Crighton & Emmaby Barton Grace | Publish date: 25/8/2026
P: In NSW, private educational authorities are exempt from anti-discrimination protections for students with disability.
S: The NSW Attorney General should repeal Section 49L(3)(a) of the Anti-Discrimination Act 1977 (NSW) (ADA) which allows private educational authorities to discriminate against students with disability.
E: The Justice and Equity Centre (JEC): ‘The ADA should also not allow private educational authorities, religious or otherwise, to discriminate against students on the basis of … disability.’
Problem Identification:
Section 49L of the Anti-Discrimination Act 1977 (NSW) makes it ‘unlawful for an educational authority to discriminate against a person on the ground of disability’. However, Section 49L(3)(a) states that ‘nothing in this section applies to or in respect of … a private educational authority’.
Therefore, according to Anti-Discrimination NSW (AD NSW), it is lawful for private educational authorities ‘(including religious schools) … to discriminate on the ground of disability in [NSW].’ Family Advocacy, an independent advocacy organisation, argued that ‘to discriminat[e] on the grounds of disability … constitutes a direct violation of core human rights principles.’
Context:
A private educational authority refers to a ‘[non-governmental] person or body administering a school … at which education or training is provided’. Public schools refer to those 'owned and managed by a state or territory government'.
Children and Young People with Disability Australia (CYDA) stated that ‘one in ten school students in Australia have disability’. A 2022 survey CYDA reported that ‘15% of respondents had experienced a child [with a disability] being refused enrolment in education’.
Poed et al. (2022) noted that Australia has ‘national and international obligations’ to not discriminate against people with disability, including under the Australian Disability Discrimination Act 1992 (DDA) and the United Nations Convention on the Rights of Persons with Disabilities.
AD NSW stated that ‘NSW is the only jurisdiction in Australia that allows private educational institutions to discriminate based on [disability]’.
Arguments:
Family Advocacy stated that private schools receive significantly more funding per student but ‘are more likely to close doors and limit access to students with disabilities’. In comparison, they explained ‘public schools, despite being the main provider of compulsory education, are significantly under-resourced and often lack the capacity to deliver adequate support to students with disability.’ AD NSW explained that this exemption ‘creat[es] unequal access to education for children in NSW’.
Discrimination law expert Dr Spyrou explained, ‘parents and caregivers regularly encounter complex legal [and] bureaucratic … obstacles when seeking formal legal redress for discrimination’. Spyrou further noted, ‘this situation is even more complex for NSW parents given complaints can be made to the AHRC which administers the DDA and does not have the same exemption for private schools.’ Human rights and discrimination law academic Dr Moon argued ‘people already are short of time and resources ... to then expect them to understand which of their legal routes they should go down [state or federal] ... is really problematic.’ Spyrou and Clausen (2024) argued that an imbalance of power exists in education complaints where parents ‘may be pitted against well-resourced and informed educational authorities’. Spyrou concluded that ‘dissatisfaction with outcomes … reflects substantive weaknesses in the operation of the law itself.’
The National Catholic Education Commission argued that removing exemptions for religious educational institutions ‘limit[s] the ability of faith-based schools to operate and teach according to their ethos.’ However, the JEC recognised that ‘it is not a feature of the right to freedom of religion that religious educational institutions are generally exempt from laws that seek to protect the rights of others.’ The JEC further argued that ‘the human rights of children should be paramount … and not compromised on the basis of … “ethos and values”’.
Advice/Solution Identification:
Family Advocacy, the JEC, Physical Disability Council of NSW and Dr Spyrou & Dr Moon have called for the removal of exemptions that allow private educational institutions to discriminate on the basis of disability. AD NSW noted that ‘private schools are the recipients of public funding which should carry a responsibility to provide access to all.’ The JEC emphasised ‘reform of the ADA … is overdue, to provide consistency with human rights principles, to bring NSW into line with other states and territories, and above all to protect the dignity and human rights of all students.’
Precedent:
There is domestic and international precedent for prohibiting disability discrimination in private educational authorities. In VIC, QLD, NT, ACT, WA, SA and TAS, private educational authorities are prohibited from discriminating against students on the basis of disability.
Public Support of the Solution:
(This list reflects publicly stated positions and should not necessarily be taken as endorsement of this specific brief or other listed organisations.)
Broad Support:
Youth Law Australia - Called for a ‘review of the registration requirements for non-government schools in NSW to ensure they provide greater consideration of, and protection for, students who live with disability.’ However, they have not explicitly called for the prohibition of disability discrimination by private educational authorities.
People with Disability Australia - Called for the new ADA to be ‘informed by, and grounded in, a human rights model of disability, which recognises human dignity as the foundation for all rights and recognises the critical importance of intersectionality.’ However, they have not explicitly called for a specific prohibition regarding disability discrimination in private educational authorities.
News Coverage:
The Independent Education Union of Australia - “Anti-discrimination law: Union steps up campaign to scrap religious exemptions”. This article reported the Independent Education Union’s campaign to repeal NSW laws that allow private schools to legally discriminate against students and staff on the basis of disability, gender, and sexual orientation | 21 April 2026 - Read the full article here.
NineNow News - “Mum fights for son's right to attend daycare centre following rejection”. The article reported a Sydney mother advocating for her son’s right to attend a childcare facility after he was reportedly denied enrolment due to his medical and support requirements. By: Nat Wallace | 2023 - Read the full article here.
ABC News - “Disability discrimination complaints received by Australian Human Rights Commission on the rise”. This article reported a disability discrimination claim against a Sydney private school after it requested a child with autism be moved to a different educational setting. By: Rebecca Puddy | 21 May 2021 - Read the full article here.
The Conversation - “What are your rights if your child with a disability is denied a school place?”. This article explained the legal rights and processes of parents when their child with a disability is denied enrollment in a school. By: Karen O'Connell | January 2016 - Read the full article here.
Where to go to learn more:
(2024) Inquiry into children with disability in different educational settings | Anti-Discrimination NSW - The submission outlined the specific legal inconsistencies within the state’s framework and advocated for legislative reform to address the unequal access to education caused by existing exemptions. Read the full report here.
(2026) Snapshot of children and young people with disability in Australia | CYDA - The report offered a comprehensive statistical analysis of the prevalence of disability in schools and the high rates of gatekeeping and enrolment refusal experienced by families. Read the full report here.
(2021) Report - Public Hearing 7 - Barriers experienced by students with disability in accessing and obtaining a safe, quality and inclusive school education and consequent life course impacts | Disability Royal Commission - The report detailed systemic obstacles within the Australian education system, documenting how exclusion and lack of support in schools directly correlate with negative long-term outcomes for individuals. Read the full report here.
(2025) Submission to NSW Law Reform Commission Review of Anti-Discrimination Act 1977: First Consultation Paper | Justice and Equity Centre (JEC) - The submission outlined that reforms for the Act are overdue for bringing NSW in line with other states and territories who have already implemented this solution. Read the full report here.
Anti-Discrimination Act 1977 No 48 (NSW) - Read the full Act here.
Human Perspective:
Content Warning: Disability Discrimination
Living in regional NSW, like all parents, Elena carefully weighed what school would be best for her son Leo. After much deliberation, she chose an independent school for Leo, believing its small classes and community values would give him stability and support that would be the right fit for him. During the enrolment process, she disclosed that Leo was neurodivergent and initially received assurances that the school could support him. Elena felt Leo had settled into the school well. While he sometimes needed a little more support in class, there had been no complaints about his behaviour from staff, and he enjoyed going to school and spending time with his friends. However, halfway through his first year at the school, the staff became hesitant and distant. After a series of meetings about Leo’s “fit” within the school community, Elena was told the school could no longer accommodate him and suggested he would be better suited elsewhere. Elena believed this decision had been made because of Leo’s disability. However, when she tried to challenge the decision, she found the legal process confusing and overwhelming. She was initially unsure where to make a complaint, but eventually learned that due to the lack of protection at the state level, she would only be able to pursue the matter federally. However, she also learned that if Leo had been enrolled in a public school, he would not have been allowed to be excluded on the basis of disability, and she could have pursued the matter at the state level. Meanwhile, the school appeared well-resourced, legally prepared and experienced in managing complaints. Elena felt the process was heavily weighted against families like hers. When Leo later asked why he could no longer see his former classmates, she struggled to explain why he had been excluded from a community where he had felt settled and connected. Rather than feeling protected by the law, Elena felt the experience reinforced that access to education remained uncertain and conditional for children like Leo.
To protect the anonymity of those involved, this is a fictionalised account drawn from an amalgamation of real-life stories, experiences and testimonials gathered during the research process for this brief. Any resemblance to actual individuals is purely coincidental.
Conflict of interest/acknowledgment statement:
Academics Dr Elpitha (Peta) Spyrou & Dr Danielle Moon confirmed their support for this recommendation in a meeting with FORE Australia held on 29 April 2024.
Support
If your organisation would like to add your support to this paper or suggest amendments, please email Info@foreaustralia.com.
Disclaimers
Please review all FORE disclaimers here.
Reference list:
Anti-Discrimination Act 1977 (NSW). https://legislation.nsw.gov.au/view/whole/html/inforce/current/act-1977-048
Anti-Discrimination Act 1991 (QLD). https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/qld/consol_act/aa1991204/s41.html
Anti-Discrimination Act 1992 (NT). https://classic.austlii.edu.au/au/legis/nt/consol_act/aa1992204/s30.html
Anti-Discrimination Act 1998 (TAS). https://classic.austlii.edu.au/au/legis/tas/consol_act/aa1998204/s51a.html
Anti-Discrimination NSW. (2023). Anti-Discrimination NSW Submission to the NSW Law Reform Commission: Anti-Discrimination Act Review. https://antidiscrimination.nsw.gov.au/documents/submissions/adnsw-submission-NSWLRC-Anti-Discrimination-Act-Review.pdf
Anti-Discrimination NSW. (2024). Submission to the inquiry into children and young people with disability in New South Wales educational settings. https://antidiscrimination.nsw.gov.au/documents/submissions/adnsw-submission-inquiry-children-with-disability-educational-settings.pdf
Children and Young People with Disability Australia (CYDA). (2026). Snapshot of children and young people with disability in Australia: Key statistics report. https://cyda.org.au/wp-content/uploads/2026/03/REP_KeyStatistics_FinalReport_20260303.pdf
Department for Education (UK). (2014). The Equality Act 2010 and schools: Departmental advice for school leaders, school staff, governing bodies and local authorities. https://assets.publishing.service.gov.uk/media/5a7e3237ed915d74e33f0ac9/Equality_Act_Advice_Final.pdf
Discrimination Act 1991 (ACT). https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/act/consol_act/da1991164/s51.html
Elder, C.S., & Varga, L. (2025). Review of the Anti-Discrimination Act 1977 (NSW): Unlawful conduct. Family Advocacy. https://lawreform.nsw.gov.au/documents/Current-projects/ada/submissions/ad141.pdf#page=1
Equal Opportunity Act 1984 (WA). https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/wa/consol_act/eoa1984250/s66i.html
Equal Opportunity Act 2010 (VIC). https://content.legislation.vic.gov.au/sites/default/files/2026-04/10-16aa032-authorised.pdf
Equal Opportunity Act 1984 (SA).
Justice and Equity Centre (JEC). (2025). Submission to NSW Law Reform Commission Review of Anti-Discrimination Act 1977: First Consultation Paper. https://jec.org.au/wp-content/uploads/jec-publications/17496/25.08.29-Justice-and-Equity-Centre-NSWLRC-Anti-Discrimination-Act-Review-Submission12.pdf
National Catholic Education Commission (NCEC). (2024). ALRC report is at odds with religious freedom and the high-regard parents place in faith-based schools. https://ncec.catholic.edu.au/media-centre/alrc-report-is-at-odds-with-religious-freedom-and-the-high-regard-parents-place-in-faith-based-schools/
Clark, S. (2023). School education: a quick guide. Parliament of Australia. https://www.aph.gov.au/About_Parliament/Parliamentary_departments/Parliamentary_Library/Research/Quick_Guides/2022-23/SchoolEducation
Physical Disability Council of NSW (PDCN). (2025). Submission in response to the public consultation on the Review of the NSW Anti-Discrimination Act 1977. https://lawreform.nsw.gov.au/documents/Current-projects/ada/submissions/ad187.pdf
Poed, S., Cologon, K., & Jackson, R. (2022). Gatekeeping and restrictive practices by Australian mainstream schools: results of a national survey. International Journal of Inclusive Education, 26(8), 766–779. https://doi.org/10.1080/13603116.2020.1726512
Puddy, R. (2021). Disability discrimination complaints received by Australian Human Rights Commission on the rise. ABC News. https://www.abc.net.au/news/2021-05-21/mum-fights-school-discrimination-against-her-son-with-autism/100114136
Spyrou, E., & Clausen, M. (2024). Disability discrimination in education: Investigating the ADR experiences of parents and practitioners. The University of New South Wales Law Journal, 47(4), 1317–1347. https://www.unsw.edu.au/content/dam/pdfs/law/unsw-law-journal/2020-2029/2024/Issue-474-09-Spyrou-and-Clausen.pdf
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