FEDERAL COURT OF AUSTRALIA

Hills Grammar School v Human Rights & Equal Opportunity Commission [2000] FCA 658

DISCRIMINATION LAW – application for enrolment at a private school – applicant suffers from spina bifida - whether the school may suffer “unjustifiable hardship” within the meaning of s 22 of the Disability Discrimination Act if it were compelled to admit the pupil – whether the extent of hardship should be measured against the maximum time the student could possibly be enrolled in the school - whether the extent of financial hardship claimed must be assessed as an exact figure

DISCRIMINATION LAW – burden of proving “unjustifiable hardship” within the meaning of s 22 of the Disability Discrimination Act – whether the burden is placed on the respondent, or is shared by both parties

ADMINISTRATIVE LAW – reasons of an administrative decision maker – where the relevant legislation required the decision maker to promote the elimination of discrimination - where the decision maker’s reasons discussed matters not necessary for the decision – whether the decision maker took account of irrelevant considerations – whether the decision maker relied on irrelevant considerations

ADMINISTRATIVE LAW – reasons of an administrative decision maker – whether reasons are sufficient – whether the reasons disclosed that the decision maker did not consider relevant evidence - whether the reasons disclosed the basis on which the decision maker weighed and evaluated the evidence

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5 and 6

Judiciary Act 1903 (Cth)

Disability Discrimination Act 1992 (Cth) ss 5, 6, 11, 22 and 69

Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 11

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 followed

Attorney-General v Quin (1990) 170 CLR 1 cited

Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 applied

Scott v Telstra [1995] EOC 92 - 717 cited

L v Minister for Education [1996] EOC 92-787 distinguished

K v N School (QLD ADT, 7 January 1997, unreported) distinguished

Commonwealth of Australia v Introvigne (1982) 150 CLR 258 cited

Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 cited

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 followed

Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247 followed

HILLS GRAMMAR SCHOOL v

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

N794 of 1999

TAMBERLIN J

SYDNEY 18 MAY 2000

THE COURT ORDERS THAT:

1. The application for review is dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant (“the School”) seeks judicial review of a decision by the respondent (“the Commission”) constituted by Commissioner Innes (“the Commissioner”) who found that a complaint of unlawful discrimination on the ground of disability against the School had been made out. The School also seeks declarations that there was no unlawful discrimination and an order of prohibition against the Commission to restrain it from acting on the basis that the decision was in accordance with law.

2                     Nine grounds are relied on in the application for judicial review which is brought under ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) and s 39B of the Judiciary Act 1903 (Cth). These include allegations that the Commission misinterpreted ss 6, 11, 22 and 69 of the Disability Discrimination Act 1992 (Cth) (“the Act”) together with allegations of other errors of fact and law which led to an improper exercise of the power conferred on the Commission. In addition the School’s submissions allege absence of evidence in respect of certain findings and a failure to give reasons or to approach the matter on a proper basis.

3                     The second and third respondents are the parents of Scarlett Finney who is an eight year old girl afflicted by spina bifida. This is a condition which occurs at an early stage in the development of a foetus in the womb when some of the spinal bones which normally cover and protect the spinal cord fail to form properly. Where this occurs, the spinal cord and all the nerves attached to it may extrude onto the surface and the spinal cord becomes knotted at the site of the break. The physical effects of spina bifida vary from person to person according to the severity of the malformation and its location in the spinal column. The effects usually include problems with mobility, incontinence, and brain fluid circulation which in turn may lead to learning difficulties. In the present case issues and material relating to mobility and incontinence and the consequent need for assistance feature largely in the submissions and evidence.

4                     On 3 March 1997 Mr and Mrs Finney completed an Application for Enrolment at the School on behalf of Scarlett and sent it to the Registrar, Mr Nigel Morgan. They wanted their daughter to have the benefit of an education in a local private school with an attractive natural setting and where the teachings were not inconsistent with their religious beliefs. Attached to the application form was a covering letter from Mrs Finney dated 3 February in which she wrote:

“Scarlett has Spina Bifida and requires a school with certain specifications, for example, level walk-ways, grounds, possibly no steps into class rooms, etc, wheel chair accessibility.”

5                     In response to this letter the parents received a letter from Mr Morgan on 5 March acknowledging the application for enrolment for Scarlett to enter the kindergarten and stating that he would contact them in the near future for an interview. On 26 March 1997 Mr and Mrs Finney together with Scarlett attended an interview with Mr Morgan at the School. At the interview there was general discussion about Scarlett’s needs at the School. Mrs Finney gave Mr Morgan the names of several persons he could contact to find out more about the condition in general and about Scarlett’s particular circumstances. A number of inquiries and investigations were made by the School in relation to these matters. The School eventually decided not to accept the application made on behalf of Scarlett. Mr Morgan informed Mrs Finney of the decision on 11 August 1997 and confirmed this is a latter dated 20 August 1997. Relevantly this letter stated:

“Dear Mr and Mrs Finney,

Thank you for your application for Scarlett to enrol at the Hills Grammar School in Kindergarten 1998.

An important factor in the consideration of each applicant is the ability of the School to meet any special needs of every child, given the level of and nature of available resources. Following a thorough examination of Scarlett’s special needs and the School’s ability to meet them, we do not believe that we have adequate resources to look after her in the manner that she requires and in a way that is suitable for her. It is with great regret that we have reached this conclusion.” (Emphasis added)

6                     Although strictly speaking the application was on its face for kindergarten registration the case was conducted on the basis that the claimed hardship would occur over a number of years.

7                     On 12 August 1997 Mr and Mrs Finney prepared a complaint form on behalf of Scarlett who was named as the complainant. The matter was heard by the Commissioner in Sydney over six hearing days between 17 November and 3 December 1999. On 20 July the Commissioner delivered reasons for his decision in which he found that the School had not made out its defence of “unjustifiable hardship” and he concluded that decision of the School was an act of unlawful discrimination on the ground of Scarlett’s disability.

8                     The application for an order of judicial review was filed on 16 August 1999. That application seeks an order setting aside the decision of the Commissioner of 20 July 1999; a declaration that there had been no unlawful disability discrimination by the School in respect of the second and third respondents (“the parents”) and an order that the complaint should be dismissed. In the alternative, an order is sought that the complaint of unlawful disability discrimination should be referred to the Commission for further consideration according to law. Further orders were sought that the decision of the Commissioner was lawful and that the Commissioner should refrain from giving effect to its decision.

Relevant legislation

9                     Section 3 of the Act sets out the objectives of the Act and relevantly reads as follows:

“3 The objects of this Act are:

(a) to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of :

(i) work, accommodation, education, access to premises, clubs and sport; and

….

(b) to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and

(c) to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.” (Emphasis added)

10                  There is no suggestion that Scarlett does not suffer a “disability” within the meaning of the Act or that the School is not an “educational authority”. Section 5 defines “disability discrimination” in the following terms:

5. Disability discrimination

(1) 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, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability .

(2) For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.”

11                  This type of discrimination is referred to as direct disability discrimination in contrast to the indirect discrimination referred to in s 6 of the Act. In this case the discrimination found to exist was direct discrimination in the sense that it came within s 5.

12                  Section 6 is concerned with what is known as indirect disability discrimination and it reads as follows:

“6. Indirect disability discrimination

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:

(a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and

(b) which is not reasonable having regard to the circumstances of the case; and

(c) with which the aggrieved person does not or is not able to comply.” (Emphasis added)

13                  Section 11 refers to some of the specific matters to be taken into account when determining whether there is unjustifiable hardship under the Act. The description of the matters is an inclusive description and the section requires the consideration of other matters which come within the broad description “all relevant circumstances of the particular case.” That sections reads:

“11. Unjustifiable hardship

For the purposes of this Act, in determining what constitutes unjustifiable hardship, all relevant circumstances of the particular case are to be taken into account including:

(a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned; and

(b) the effect of the disability of a person concerned; and

(c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship; …”

14                  Section 22 is a provision specifically directed to discrimination in the area of education on the ground of disability or the associates of that person. Subsection (4) is of central importance in this case. It reads as follows:

“22. Education

(1) It is unlawful for an educational authority to discriminate against a person on the ground of the person's disability …:

(a) by refusing or failing to accept the person's application for admission as a student; or

(b) 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 …:

(a) by denying the student access, or limiting the student's access, to any benefit provided by the educational authority; or

(b) by expelling the student; or

(c) by subjecting the student to any other detriment.

…

(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.” (Emphasis added)

15                  Section 67 sets out the functions of the Human Rights and Equal Opportunity Commission and relevantly reads:

“67(1) The following functions are conferred on the Commission”

(a) to inquire into alleged infringements of Part 2, and endeavour by conciliation to effect a settlement of the matters to which the alleged infringement relate;

(b) to inquire into, and make determinations on, matters referred to by the Minister or the Commissioner;

…

(m) to do anything incidental or conducive to the performance of any of the preceding functions.” (Emphasis added)

16                  Section 68 provides that the functions of the Commissioner under subparagraphs (a) and (m) are to be performed by the Commissioner on behalf of the Commission. Section 69 provides for complaints in writing to be made by a person aggrieved on the person’s own behalf or on behalf of that person and another person also aggrieved by the Act.

17                  Section 93 is concerned with the resolution of complaints by way of conciliation and provides that:

“93. The Commission:

(a) may endeavour, by all such means a seem reasonable to it, to resolve a complaint the subject of an inquiry by conciliation; and

(b) must take all such steps as seem reasonable to it to effect an amicable settlement of a complaint the subject of an inquiry and for this purpose may adjourn an inquiry at any stage to enable the parties to negotiate with a view to settlement of the complaint by amicable arrangements.”

18                  The determinations which the Commission can make are set out in s 103 of the Disability Act which include powers for the Commission to dismiss the complaint or if it finds that the complaint is substantiated to make a determination which can include a number of alternative declarations. Subsection (3) provides that the Commission may in the making of a determination state any findings of fact upon which the determination is made. Under s 105A of the Act proceedings can be taken in the Federal Court to enforce determinations of the Commission.

Proceedings before the Commissioner and the reasons for decision

19                  The hearing before the Commissioner was not short. Oral testimony from many witnesses was given over six days and this is recorded in more than eight hundred and fifty pages of transcript. In addition, there were numerous documents tendered in evidence and both Scarlett and the School were represented by Counsel. The witnesses included Scarlett and her mother, together with a number of persons experienced in education, nursing, and medical and occupational therapy. These included educationalists from the School and Dr Carolyn West who is the Head of the Spina Bifida Unit at Sydney Children’s Hospital. There was extensive cross-examination of a number of the witnesses.

20                  The reasons for decision begin with an outline of the complaint and the nature of Scarlett’s disability. There is a reference to the circumstances leading up to the making and refusal of the application. The relevant legislation is then set out and the issues for determination are summarised. After pointing out that Scarlett’s disability was one of the reasons for the School’s refusal the Commissioner identifies one of the central issues in the proceedings as being whether there will be “unjustifiable hardship” on the School if Scarlett were to be admitted.

21                  Following this introductory material there is a detailed summary of the evidence of the witnesses called to give oral testimony. After setting out in considerable detail the evidence of each, including in some cases the thrust of the cross-examination, the Commissioner records, with some particularity, the observations which he made on his inspection of the School premises in the early part of the proceedings. The visit was undertaken in order to understand the evidence to be advanced at the hearing and in order to appreciate the setting and topography of the School as a whole. In this review of the site there is reference to the “unique School setting”, and to the fact that the School operates in a “college format” catering for children from kindergarten to year twelve. The Commissioner describes the campus as including all usual school facilities, set in a bush-like setting on the side of a hill with buildings constructed to take advantage of the setting and many on more than one level. He points out that in many cases the buildings contain external entrances at various levels and that for a person using a wheel-chair this advantage countered to some degree the sloping nature of the ground. Also, because of the attempt to maintain the bushland setting, in many cases while the most direct route between buildings involved the use of steps there were alternate routes by a path or a roadway which he described as level and sloped. The Commissioner records that most class rooms had steps at the entrance but that this would not, on the evidence, be an issue for Scarlett in the early stages of her attendance at the School because she would get out of her wheelchair to enter them. There is a description of an oval up a hill at the top of quite a steep dirt slope and a “yurt” which is used by the School in a gully in the bush with quite steep and uneven steps. The Commissioner refers to these areas as being the most inaccessible parts of the School and to the difficulties which a person using a wheelchair might experience if unassisted. He considered that the state of all other facilities that he saw could be reached independently by a person with Scarlett’s level of disability although some assistance would be preferable because of the tiring effects of the distances and the steepness of some of the slopes. It is not suggested that the Commissioner failed to consider the somewhat special nature of the School site.

22                  The Commissioner then summarised and set out in detail the arguments advanced for the complainant and the findings of fact contended for. A similar exercise was performed in relation to the case presented by the School.

23                  The Commissioner proceeded to make findings in relation to a number of pertinent factual issues including the willingness of teachers to accept additional responsibilities, the additional training of teachers required, Scarlett’s toileting needs, the specifications of toilet accommodation at the School and the teacher’s aide requirement to name but a few of the matters canvassed. There were a number of further findings in relation to mobility and the personal needs of Scarlett, together with the need for classroom assistance. There was then discussion of accessibility to the School generally and excursion requirements. The Commissioner considered curriculum modifications required to accommodate Scarlett, the viability of special funding, and the financial circumstances of the School. There is discussion of the period of enrolment against which any hardship should be tested and of the information provided by the parents and the inquiries made by the School during the enrolment process. There is reference to the availability of alternative schools, the benefits to all persons concerned in the application, including Scarlett, her family, the School, and the community, and also the detriment of Scarlett attending the School, in the nature of additional costs to the School are considered. The need to make modifications and the extra work involved are taken into account.

24                  There are then findings made as to the law, in which the Commissioner finds that Scarlett has disabilities and that the School had discriminated against her on the ground of her disability. There was then a discussion of the onus of proof and the extent of inquiries required, some further discussion of direct and indirect discrimination, the relevant period within which to evaluate hardship, and the extent and sufficiency of the assessment required. The Commissioner accepted the submission of the School that the burden of proving the services and facilities required was a shared burden, and he proceeded on the basis that there was a shared burden of proof in relation to unjustifiable hardship.

25                  The Commissioner concluded that there was no unjustifiable hardship made out and the question of relief was stood over for discussion between the parties. However, in the period nominated for these discussions the application for judicial review was made and no determination as to relief has yet been made by the Commissioner. This application is brought against the decision made on 20 July that there was unlawful discrimination and does not include any question of relief.

Conclusion of the Commissioner

26                  The finding of the Commissioner, which is expressed to have been based on a weighing of his findings of fact and a consideration of the benefits and detriment to all concerned, is in these terms:

“… when all of my findings of fact are weighed, it would not have been unjustifiable for the School to have enrolled Scarlett as a student in Kindergarten in 1998. In making this finding I do not accept many of the conclusions which the School drew in the process of making the decision.

It follows that the direct discrimination which occurred (as admitted by the Respondent) in refusing Scarlett’s application for enrolment at the Sschool is not vindicated by the exception of unjustifiable hardship.” (Emphasis added)

27                  It is evident that the reference in the second line of the above extract to “unjustifiable” was to “unjustifiable hardship”.

28                  When considering whether he should grant relief the Commissioner expressed the conclusion that the decision made by the School in refusing the Application was “genuine but misguided” and was based on general and often flawed assumptions to the effect that the School did not have the capacity to provide Scarlett with an education because of her disability.

Approach on Judicial review

29                  In approaching decisions of a body such as the Commission charged with wide-ranging functions under the Anti-Discrimination legislation it is appropriate to bear in mind several factors. The first is that the legislation is beneficial in character and is designed to eliminate a perceived social evil. It should therefore be approached and construed liberally and not in a technical or narrow sense. In addition, it is important to bear in mind that the Commission is a body specifically set up with special functions in relation to the promotion and monitoring of human rights issues and the elimination of unlawful discrimination in a number of situations: see s 11 of the Human Rights and Equal Opportunity Commission Act 1986 (Cth)(“the HREOC Act”). Account must be taken of the wide ranging powers and responsibilities of that body in relation to reporting, advising, settling and preventing discrimination in relation to infringements. Another important consideration is that the legislature has expressly spelled out in the Act the objects of the legislation which are directed to the elimination of discrimination against persons on the ground of disability and to the promotion and recognition that disabled persons have the same fundamental rights as the rest of the community. In this respect although it is not an “expert” body in the sense of being necessarily comprised of persons with particular expertise in a science or art, it is a specialised administrative body with what one may reasonably assume to be considerable experience, built up over time, in relation to a wide range of matters involving discrimination. It is the body to which the legislature has entrusted the substantive determination of discrimination issues on the merits in cases of alleged infringement of the discrimination legislation.

30                  It is also appropriate to note that “the reasons” of an administrative decision-maker are “not to be scrutinised with an over zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons for decision are expressed”, to use the language of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. This observation is particularly pertinent in areas of discrimination law where regard must be had to substance, rather than form of reasons, having regard to the many variegated and ingenious ways in which discrimination can be achieved.

31                  The merits of administrative action as distinct from the legality of such action are of course for determination by the repository of the power and not for the courts on judicial review: see Attorney-General v Quin (1990) 170 CLR 1 at 35. This is a well established principle but it needs to be constantly kept in mind because the borderline between merits review and judicial review is not a bright shining line. This caution is of particular importance in cases where a decision involves the weighing of indeterminate and largely imponderable factors and the making of value judgments, such as that in the present case, which requires a balancing exercise between benefits and detriment to all parties in order to decide whether there is likely to be unjustifiable hardship in all the relevant circumstances. The weighing process is necessary because of the use of the expression “unjustifiable” which calls for a balancing of the hardship against other considerations some of which are specified in s 11. Finally, it is necessary to consider the Commission’s reasons for decision as a whole and not simply to select out phrases or passages which alone might indicate error. Again, this is important in this case because there is an overlap in relation to the many and numerous issues raised before the Commission and a consideration of the issues requires a deal of cross-reference.

32                  I now turn to the specific grounds on which this present application is based.

Misconception of the nature of the inquiry

33                  The first submission made for the School is that the Commissioner misconceived the nature of the inquiry because he stated that the School has “discriminated against Bernadette and Scott Finney on the grounds of Scarlett Finney’s disability”. This is said to disclose an important error of law because it indicates the case was considered on the basis that discrimination occurred in relation to the parents and not to Scarlett as required by the Act. This first submission illustrates the importance of the need to read the reasons as a whole and not select particular parts in isolation. The applicant of course was named in the complaint as being Scarlett, not the parents. It is apparent from the first paragraphs of the reasons that the Commissioner fully appreciated this. There are findings that the School discriminated against the applicant in paragraph 7.1. The finding made is that there was discrimination in refusing Scarlett’s application to the School. The substance of the finding is quite apparent. It is that Scarlett(not her parents) has been the subject of unjustifiable direct discrimination by the refusal of her application and that such discrimination was unlawful. The verbal oversight is well within the ambit of the caution as to judicial review by Courts sounded by the High Court in Wu Shan Liang and does not demonstrate error.

Unjustifiable hardship - misconstruction of ss 11 and 22(4)

34                  The School submits that it was neither relevant nor open to the Commissioner to make findings about the manner in which the School determined the application and in particular its failure to obtain an expert assessment of Scarlett before the refusal. This is said to be important because it is submitted that it led the Commissioner to find that the School only adopted a negative approach towards the application.

35                  It is true that there is considerable discussion and findings in pars 6.1 and 7.2 leading to the view that the Commissioner was not satisfied that inquiries made by the School during the enrolment period were appropriate and that an interchange of views should occur. In relation to the desirability of an expert assessment the Commissioner said at 7.2:

“An interchange of views must occur, and often an expert independent assessment is beneficial.” (Emphasis added)

36                  He did not say that such an assessment is required in all cases.

37                  While there was consideration given to, and criticism of, the School’s approach to its investigations, in the reasons for decision I am not persuaded that the Commissioner’s conclusions on this aspect gave rise to any error of law or principle. The inquiries were part of the overall factual context before the Commissioner in considering what had occurred and as such were appropriate to be considered. The remarks made are, on their face, directed to indicate the desirability of a cooperative and constructive approach by both sides towards resolution of the difficulties presented by the application. Moreover, the way in which the issues were presented to the Commissioner directs attention to the question of the School’s approach to investigating the issues raised by the application.

38                  It is also submitted for the School that the Commissioner accepted the School’s suggested approach as to the burden of proof when determining whether the hardship was justifiable, but nevertheless he failed to follow it through, and as a consequence, found that greater weight should be placed on the information provided by the person with the disability. This latter point is simply a question of fact and degree for the Commissioner and does not disclose any reviewable error. In my view nothing turns in this matter on the onus of proof and the Commissioner was entitled to approach the matter by evaluating all the material before him without ultimately placing any substantial emphasis on the onus of proof.

39                  In his reasons the Commissioner said, at par 7.3, that throughout the school life of a child with a disability the child is entitled to expect the provision of a reasonable level of service from a school but that this will be the subject of negotiation. If negotiations break down the complainant could lodge a complaint under the Act based on indirect discrimination. This, so the Commissioner considered, would then entitle the School to rely on the reasonableness requirement provided for in the s 6 definition of indirect discrimination. This is said by the School to give rise to error because there was no obligation on either party to negotiate in the period after the child had been admitted to the School which would raise any question of reasonableness of post admission requirements to cater for the needs of Scarlett.

40                  In my view when the Commissioner referred to a reasonable level of service being “negotiated” he was not expressing his view as to a legal obligation to negotiate. He was simply stating what he expected would eventuate as a practical consequence, after the admission of a child with a disability to a school, in dealings between reasonable parties as from time to time difficulties emerged. There would likely to be some adjustment of positions and compromise. There is, in my view, no conclusion expressed to the effect that assessment of the subsequent hardship after admission must as a matter of law be deferred. I cannot detect any reviewable error on this ground.

Further submission on s 22(4)

41                  Counsel for the School has pointed out that the unjustifiable hardship provision in s 22(4) only applies at the time of admission as a pupil and that in response to any application for facilities by a disabled student any “hardship” cannot be raised by the School in answer. Hence, all foreseeable hardship had to be weighed as at the date of admission. The Commissioner, so it is said, erred in law in finding that there was an implicit defence of reasonableness available to the School after admission on the ground that post admission discrimination is likely to be “indirect” discrimination. In substance, however, the Commissioner in par 6.1(2) assessed the hardship question on the basis of the enrolment of Scarlett at the School from kindergarten through to Year Six. In selecting this period as appropriate the Commissioner focused on the hardship question during that period. He referred to the numerous contingencies that could determine the period of attendance by the pupil at the School in support of his conclusion that it could not be assumed she would remain until Year Twelve. In fact he found, in par 7, by reference to the period he determined Scarlett would be enrolled, that there would not be unjustifiable hardship over that seven year period. Accordingly, the Commissioner did not “defer” assessment of hardship in subsequent years as contended by the School but considered hardship over the selected period after the date of admission which he found as a matter of fact to be the appropriate period in the circumstances, namely from kindergarten to Year 6.

42                  The Commissioner’s remarks in par 7.2 relating to “indirect discrimination” are based on an acceptance of the view that after admission any discrimination may be more likely to be indirect than direct. Indeed, it is difficult to contemplate that a responsible School would engage in direct discrimination against a child with a disability after the child has been admitted to the School. It is more likely that any “discrimination” after admission would be of an indirect nature. Nevertheless, as Counsel for the School submits, there is the legal possibility that if there were to be direct discrimination after admission of a child at a school, then a claim of “unreasonableness” by the School provided for in s 6 of the Act would not be available. However on a fair reading of his reasons the Commissioner is saying in substance that if there were to be discrimination after admission it would be likely to be indirect and unintentional and that s 6 may provide a mechanism for negotiation and resolution of complaints. This in my view does not disclose an error of law or principle. As a practical factual forecast as to what may eventuate it has some force. It does not reflect or support a charge of failure to properly assess whether at the time of admission there was likely to be unjustifiable hardship.

Period – 6 or 13 years

43                  This matter has been ventilated to some extent in the course of arriving at the above conclusions. There was lengthy discussion at the hearing as to the appropriate period against which the question of unjustifiable hardship should be evaluated. The School contended that the period should be thirteen years having regard to the nature of the School as providing an integrated education service from kindergarten through to Year 12 and a comprehensive integrated curriculum with respect to the whole School. The School emphasised the nature of its special curriculum and the expectations of this School, pupils and parents. It submits that there was no evidence that the enrolment would only be for one year or any period less than 13 years. The application form is silent as to the period of enrolment except that it does refer to enrolment in kindergarten. It can be taken to be simply an application for enrolment in the School. The applicant before the Commission contended either a one year period or a period to Year 6 as the period within which to assess hardship. The Commissioner in fact found that a six year period was the appropriate period against which to form a view as to unjustifiable hardship having regard to the numerous contingencies that might occur and to the natural “pause” which occurs between primary and secondary school. The School sought to attack this assumption on the basis that it was based on State public school experience and not on the private school system and that the position as to any “natural pause” was inappropriate to a school such as the present.

44                  There is no contractual or statutory obligation on an applicant to enrol or remain at a school for any particular period when forming a view on unjustifiable hardship. Nor is there any express obligation on the Commissioner to adopt any particular period. The judgment as to what is an appropriate period is one of fact and degree for the Commissioner as determined in the particular circumstantial context. The Commissioner’s conclusion reached that a period to Year 6 is appropriate is not on its face unreasonable and represents a mid-ground position between the opposing submissions. It also takes into account practical reality and the contingencies of life. There is no statutory requirement in the legislation that the longest period of foreseeable enrolment or a worst case scenario must be selected and hardship weighed against it. That decision as to this period is for the Commissioner. Nor is there anything in the factors mentioned by the School which mandates such a conclusion as a matter of fact. It is not necessary to adopt a worst case scenario against the applicant when determining the degree of hardship by selecting the maximum possible period of enrolment at the School. Experience teaches that forecasting of future contingencies is an inexact art to say the least. Furthermore, as Counsel for Scarlett points out, there was material before the Commissioner in the form of a brochure issued by the School which, after referring to the “Junior School” then refers to the “Middle” and “Senior” Schools. Reference is also made to the “transition” to Year Seven as being “important and difficult for students, commencing at a new school.” These remarks provide some support for the notion of a “natural pause” approach taken by the Commissioner which is not, on its face, unreasonable. It is also interesting to note that the letter refusing acceptance of Scarlett referred to the application as being for entry into kindergarten so that there is clearly some lack of clarity as to precisely what period of schooling would result from a successful application.

45                  I do not consider that any reviewable error of law is disclosed in respect of the approach taken by the Commissioner as to the selection of the period over which assessment must be made.

Failure to consider relevant matters

46                  The appropriate approach for a court to adopt when considering whether the question of a relevant matter has been taken into account is described by Mason J in Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 39-45 and I bear these principles in mind.

47                  The first allegation under this head is that no account was taken of the hardship that would be suffered over the thirteen year period. For the above reasons this was not necessary because the adoption of a period to the end of Year 6 has not been shown to be erroneous.

48                  Another matter raised is that the Commissioner, having found that there was some hardship, failed to determine whether the hardship could be justified. The Commissioner expressed the view that it was reasonable to expect that the School should have to undergo some hardship in accepting Scarlett but that the real issue was whether the hardship was unjustifiable. In my view the remark made by the Commissioner in relation to the School having to experience some hardship was in the nature of an observation and was not a finding that the School necessarily had to or would experience hardship. The question is correctly posed by the Commissioner as being whether any hardship is of such a nature or degree in the circumstances of Scarlett’s case as to be unjustifiable. This requires a weighing of relevant factors which he was bound to take into account and this is precisely what the Commissioner did when he refers to “weighing” all his findings of fact and law. He was bound to take account of the hardship claims and he did so. Moreover in making these remarks the Commissioner is, as his reasons indicate, applying the approach taken by Sir Ronald Wilson in Scott v Telstra [1995] EOC 92 717 at 78,401.

49                  Next, the School submits that although the Commissioner identified the relevant facts and submissions and noted them he did not address them. The first two of these matters raised in this respect concern the benefits and detriment over thirteen years and the financial circumstances of the School over a thirteen year period. Both these matters are answered by the finding that the appropriate period for consideration was not thirteen years but was a period up to the end of Year Six which was that selected by the Commissioner. It is also said that the Commissioner failed to consider Scarlett’s prognosis and the fact that her immobility would probably deteriorate to a position where she would continuously need a wheelchair. However, at several points in the reasons including the summary of, and conclusions reached on, the site visit taken by the Commissioner, these matters were dealt with. An examination of the reasons shows that the mobility of Scarlett was considered in detail. In relation to Dr West, who was the Head of a Spina Bifida Unit at the Sydney Children’s Hospital, the Commissioner referred in detail to her evidence in relation to future mobility and to the need for Scarlett to use the wheelchair to a greater extent as she grew older. Dr West’s evidence was, as indicated by the Commissioner, somewhat equivocal in parts in that she also referred to the increasing ability of spina bifida sufferers as they grow older to access places which they could not previously reach. This is due to increased strength, independence and ability to negotiate a wheelchair as the child grows older. The mobility considerations were also specifically considered in detail in par 6.1.1 of the decision. It cannot be said that there was any failure to consider this material or that the increasing commitment to the wheelchair was overlooked or not appropriate.

50                  As to the School’s financial burden it is said that the Commissioner failed to consider the fact that the School operated to a budget which took account of long term planning. However, the School’s funding and the financial consequences of accommodating Scarlett were considered with some particularity in par 6.9 to 6.11 inclusive. It is true that there is no specific finding as to the exact monetary figure required but there is a finding that “a much lesser expenditure” would be required than the approximate $1.1 million estimated by the School’s consultant. This was because that estimate, in the Commissioner’s view, was based on a number of unwarranted assumptions. The estimates were based on the need for the School, as at the date of the application to provide, for example, several accessible toilets and complete access to all parts of the School for a person in a wheelchair by ramping. The Commissioner preferred the evidence of Ms Dickson with respect to Scarlett’s needs, although she was concerned with Kindergarten admission, to that of the School’s Consultant. The latter did not appear to have any direct experience of the needs of a handicapped pupil and the Commissioner found on the evidence, including importantly his inspection of the site, that the required changes were relatively minor and would have been only a “small fraction” of the $1.1 million figure. In my view there was no requirement for an exact finding in the form of a specific figure. The conclusion of the Commissioner was open to him after taking into account the period to Year 6 and the unnecessary changes and unwarranted assumptions which he found to have been made in the assessment performed by the School Consultant. I do not accept the submission that there was any reviewable error with respect to the way in which the Commissioner considered the question of the financial burden on the School of admitting Scarlett.

51                  It is further submitted that there was a failure to consider the effect of any curriculum modifications on the School and on the other students. This is not correct. The Commissioner expressly found that the curriculum modifications would not greatly impact on the whole School or remove the benefits of its specifically unique curriculum comprising an integrated School with overall access as part of the School’s program. He saw that a curriculum modification was required but he expressed the need for a balancing exercise to the timetables and concluded that the modifications were not unduly burdensome: see par 6.8 and 6.17.

52                  As to the financial impact on the parents, the School led no evidence as to any estimate of possible additional fees except in the most general way. It is therefore difficult to see how this factor could have substance. Having regard to the findings as to (i) the limited need for a number of the modifications; and (ii) the relatively low order of expenditure which he considered would be required, it was open to the Commissioner to conclude that any hardship in the form of a fee increase had not been made out. The question was considered and the degree of hardship in this respect was weighed and found to be exaggerated by the School. There is no misunderstanding or misapplication of the reasoning in Scott’s case.

53                  The School also referred to other cases in which expenditures of $41,000 and $4,500 were considered to have amounted to unjustifiable hardship: see L v Minister for Education [1996] EOC 92-787 and K v N School (Qld ADT,7 January 1997, unreported). No assistance can be gained from these cases which turned on their own facts and the particular circumstances of the School and the complainant.

54                  It is also said that there was a failure to consider the duty of care imposed upon the School in estimating the hardship. Reference was made to Commonwealth of Australia v Introvigne (1982) 150 CLR 258 which concerned the duty of care imposed on a school in relation to pupils. In par (m) of the summary contained in par 5.2.3 the Commissioner sets out the School’s submissions. The Commissioner refers to a number of legal obligations imposed on the School which are relevant to hardship. However his findings as to Scarlett’s needs for some special added assistance and additional attention also bear on these aspects of the duty of care. There is nothing to indicate that the Commissioner failed to give any attention to this question after expressly adverting to it in his summary of the reasoning.

55                  Yet another matter raised under the heading of “Failure to consider relevant matters” is an alleged failure to consider the best interests of the child and the other pupils. Reference is made to Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. The short answer to this contention is that the opposing interests and the needs of Scarlett and other pupils are set out in par 6.16 and 6.17 and were weighed in the balance as mentioned in par 7.6. This allegation has no substance.

Error in approach

56                  Finally, there is a rolled up submission that the Commissioner erred generally in its approach. It is contended that the reasoning process of the Commissioner does not sufficiently disclose how the evidence was assessed or the conclusions reached. The format of the decision is criticised and it is said the consideration of the evidence is inadequate or non-existent and certain matters were not dealt with.

57                  I cannot agree that the approach taken discloses any error of law. It is neither feasible nor required, as a matter of law, in a hearing extending over six days with eight hundred odd ages of transcript and numerous documents tendered, to fully canvas every question posed. The nature and extent of the reasoning process to be disclosed by a Court was considered in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 where Mahoney JA, at 386, observed that the purpose of the requirement to give reasons is, at least in part, to allow a party to exercise appeal rights and that this is of significance in determining the extent of the duty and what will be a discharge of it. His Honour stated that the basis of the decision of a trial judge of an intermediate court of appeal should be made apparent but that this did not mean that the reasons need to be elaborate, in the sense that an elaborate argument may not require an elaborate answer. He went on to say that reasons need only be given so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it. The need to give reasons was also considered by McHugh JA in Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247 at 277-281 where his Honour agreed with the above observations of Mahoney JA. In that case his Honour referred to the necessity that the essential ground or grounds on which the decision rests should be articulated: see 280. Here we are concerned with a specialised administrative tribunal making value judgments as to unjustifiability and hardship and the above remarks of the Courts apply with even greater force in relation to it.

58                  In the present case the application for judicial review, with its nine headings and numerous sub-paragraphs, indicates that the School had little or no difficulty in identifying from the reasons what are alleged to be errors of law and principle in the decision of the Commissioner.

59                  It is, of course, necessary to approach the decision of the Commissioner in a practical and substantive way. Upon a fair reading of the reasons as a whole I cannot agree that there is any apparent failure to disclose the reasoning on the basis of which the conclusions of the Commissioner were reached. It is not essential to set out the effect of cross-examination in respect of each witness although it may in some circumstances be of assistance in throwing more light on the reasons. The failure to refer to evidence, taken by itself, is not an indication of error. In the present case it is reasonably apparent what evidence the Commissioner preferred and his reasons for doing so. There is a full outline of the contentions for each side both of fact and law and a list of findings with reasons.

60                  The School also submits that the Commissioner did not address the fact that Mr Finney, Scarlett’s father, was not called to give evidence. I can see no error in this. This is a technical legal point without substance. It is not suggested that the father could have given relevant evidence in addition to that of his wife. Nothing of any significance flows from the fact that he was not called, no inference is strengthened or weakened by his presence or absence in the witness box. The taking of such a point reflects a classic instance of an over-zealous attempt to detect error in the reasons directly contrary to the caution sounded by the High Court in Wu Shan Liang.

61                  Another matter raised by the School concerns the remark of the Commissioner in relation to the evidence of Dr West to the effect that that she had visited the School but had not seen Scarlett for some time. This assertion was in fact not correct because Dr West had seen her more recently but nothing of any significance was shown to flow from this inaccuracy.

62                  The School also contends that the reasons of the Commissioner in dealing with the question of relief, in par 8, show that he misconceived his function because he referred to the role of the Commissioner to make determinations and to find solutions to disputes which remove discrimination on the ground of disability. It is said that this indicates that the Commissioner took an incorrect approach to the inquiry in the sense that it was too loose and broad. However, these remarks were made in the context of what would be appropriate forms of relief and they do not relate to the determination which is appealed against: namely the finding of unlawful direct discrimination. In addition, the remarks simply reflect the objects of the Act and the function of the Commissioner as set out in ss 3 and 47(1) and 93(b) of it. It is evident from the reasons for decision that the function in fact undertaken by the Commissioner was the inquiry into a particular defined dispute referred to the Commission pursuant to s 76(1) of the Act and that he understood this was his role. There is nothing to indicate that the Commissioner approached the matter on an unduly wide or loose basis.

63                  It is also said that the Commissioner failed to refer to, or consider, the cross-examination of a number of witnesses and did not reconcile conflicting evidence. However, it is apparent from the reasoning and the ultimate finding how the decision was arrived at and the evidence relied on. It was not necessary to discuss all the evidence in order to disclose the essential findings and reasoning in this case. Often over elaborate “reasons” can obscure rather than illuminate the basis for a decision. In my view there is no substance in any of these additional matters raised under this heading relating to conduct of the inquiry.

Conclusion

64                  I am satisfied that no reviewable error of law or principle is shown in the reasons for decision of the Commissioner. The approach taken by the Commissioner was both reasonable and methodical. To the extent that there were any misstatements or oversights they were only of minor significance and have not been shown to have affected the final result or have been likely to affect the outcome. The decision canvassed the essential issues, carefully set out the competing considerations, and disclosed the application of the weighing process involved in reaching the Commission’s conclusion. The essential reasons for decision were disclosed and the conclusion reached was well open to the Commission. Accordingly, the application is dismissed with costs.

Associate:

Dated: 18 May 2000