FEDERAL COURT OF AUSTRALIA

Hurst and Devlin v Education Queensland [2005] FCA 405

DISCRIMINATION LAW – disability – profound deafness – access to education – without an Auslan teacher or an Auslan interpreter – reasonableness – compensation – Disability Discrimination Act 1992 (Cth).

Disability Discrimination Act 1992 (Cth)

Human Rights and Equal Opportunity Commission Act 1986 (Cth)

Purvis v New South Wales (Department of Education and Training) (2003) 202 ALR 133 followed

Haines v Leves (1987) 8 NSWLR 442 followed

Street v Queensland Bar Association and Others (1989) 168 CLR 461 followed

Waters and Others v Public Transport Corporation (1991) 173 CLR 349 followed

Australian Medical Council v Wilson (1996) 68 FCR 46 followed

Australian Iron and Steel Proprietary Limited v Banovic and Others (1989) 168 CLR 165 followed

Department of Foreign Affairs and Trade v Styles (1989) 88 ALR 621 followed

Clarke v Catholic Education Office (2003) 202 ALR 340 followed and applied

Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 followed

Todorovic & Another v Waller (1981) 150 CLR 402 followed

Thompson v Faraonio (1979) 24 ALR 1 followed

TIAHNA HURST (BY HER NEXT FRIEND, GAIL SMITH) v EDUCATION QUEENSLAND

Q 200 of 2002

BENJAMIN DEVLIN (BY HIS NEXT FRIEND, KIM DEVLIN) v EDUCATION QUEENSLAND

Q 201 of 2002

LANDER J

15 APRIL 2005

ADELAIDE (HEARD IN BRISBANE)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 200 OF 2002

BETWEEN:	TIAHNA HURST (BY HER NEXT FRIEND, GAIL SMITH) APPLICANT
AND:	EDUCATION QUEENSLAND RESPONDENT
JUDGE:	LANDER J
DATE OF ORDER:	15 APRIL 2005
WHERE MADE:	ADELAIDE (HEARD IN BRISBANE)

THE COURT ORDERS THAT:

In Action Q200 of 2002:

1. The application be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 201 OF 2002

BETWEEN:	BENJAMIN DEVLIN (BY HIS NEXT FRIEND, KIM DEVLIN) APPLICANT
AND:	EDUCATION QUEENSLAND RESPONDENT
JUDGE:	LANDER J
DATE OF ORDER:	15 APRIL 2005
WHERE MADE:	ADELAIDE (HEARD IN BRISBANE)

THE COURT ORDERS THAT:

In Action Q201 of 2002:

1. Leave to amend pars 12, 13, 14, 15, 17, 18, 19, 22, 25, 29 (with the exception of par 29(e)), 29D, 30 and 31 (but in respect of those last two paragraphs only to include a reference to par 29D).

2. Otherwise leave to amend refused.

3. A declaration that the respondent has committed unlawful discrimination.

4. The respondent to pay the applicant $64,000, which includes $4,000 by way of interest.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY		Q 200 OF 2002
BETWEEN:	TIAHNA HURST (BY HER NEXT FRIEND, GAIL SMITH) APPLICANT
AND:	EDUCATION QUEENSLAND RESPONDENT
		Q 201 OF 2002
BETWEEN:	BENJAMIN DEVLIN (BY HIS NEXT FRIEND, KIM DEVLIN) APPLICANT
AND:	EDUCATION QUEENSLAND RESPONDENT

JUDGE:	LANDER J
DATE:	15 APRIL 2005
PLACE:	ADELAIDE (HEARD IN BRISBANE)

REASONS FOR JUDGMENT

1 These two matters were heard together and the evidence taken in each matter was admitted, subject to relevance, in the other matter.

2 These reasons apply to both matters.

INTRODUCTION

3 Both applicants brought proceedings against the respondent under the Disability Discrimination Act 1992 (Cth) (the Act) seeking compensation, a declaration that the respondent has committed unlawful discrimination, orders requiring the respondent not to repeat or continue such unlawful discrimination, and requiring the respondent to perform such acts and/or courses of conduct that the Court deems appropriate to redress any loss or damage suffered by the applicants.

4 Benjamin Devlin (Ben) is 12 years of age today. He was born on 15 April 1993. Tiahna Hurst (Tiahna) is now aged seven years. She was born on 24 February 1998.

5 Both applicants were born profoundly deaf, although Ben is more profoundly deaf than Tiahna. Both of them have a disability as defined in s 4 of the Act, because both of them have a partial loss of bodily function; malfunction of part of the body; and a disorder or malfunction causing them to learn differently from a person without the disorder or malfunction.

6 The respondent administers educational institutions as defined in s 4 of the Act.

7 Ben is one of five children of Kim and John Devlin. He was diagnosed as profoundly deaf when about 16 months old. None of his siblings are hearing impaired.

8 The respondent has provided Ben with an Advisory Visiting Teacher (AVT): Hearing Impairment since soon after his disability was diagnosed. Ben’s first AVT was Rosemary Horn.

9 In 1994 Mrs Devlin told Ms Horn that she wanted Ben to be oral, that is to say, to be able to speak in English and receive information in English. Ms Devlin said that she thought that when Ben received his hearing aids he would be able to hear. She said that she also relied on Ms Horn’s advice in making that statement. She later realised that the hearing aids did not enable Ben to hear.

10 In 1995 and 1996 Ben attended a childcare centre which was not administered by the respondent and, in 1997, he attended a childcare centre and kindergarten which were also not administered by the respondent. In 1997 he commenced at the Noosaville SEDC which was administered by the respondent.

11 Benjamin went to Noosaville Pre-School in 1998 and has continued in educational institutions administered by the respondent since that time and to trial.

12 Tiahna is the daughter of Gail Smith. Tiahna was diagnosed as profoundly deaf before she was three months old. Her mother is not hearing impaired. However, her maternal grandparents are both profoundly deaf. Her grandparents communicate in Auslan (a native Australian sign language). Her mother is bilingual. Her first language is Auslan and her second language is English. Her father’s second language is Auslan.

13 The respondent has provided Tiahna with an AVT: Hearing Impairment since 1998. Her first AVT was also Rosemary Horn.

14 Tiahna first entered an educational institution administered by the respondent in February 1999 where she remained until February 2002.

15 Between 1999 and 2001 Tiahna was a student at the Yeerongpilly Special Education Development Unit. Between June 2001 and February 2002 she was a student at the Noosaville Special Education Unit.

16 Tiahna then pursued her education at a private institution not administered by the respondent. In 2003 she recommenced her education in an institution administered by the respondent when she attended the Sunshine Beach State Pre-School. Since January 2004 she has attended the Coolum State School.

17 Both applicants are so deaf that they cannot hear the spoken word and their speech is affected. Ben is not capable of being understood. Tiahna is able to talk and is capable of being understood by someone who is close to her and who understands the topics which she is addressing.

THE PLEADINGS

18 Both applicants originally put their case in the same way. Both applicants claimed that the best method, and the only adequate method of communication with them, is through sign language, Auslan. Both applicants claimed that if their teachers were familiar with Auslan, and they were taught it, they would receive a better education than if their teachers attempted to communicate with them by any other method.

19 They pleaded that if they were taught by the best or only adequate method of communication, then they would obtain access to the education material provided by the respondent at the same rate and to the same degree as their hearing peers would obtain access to the education material provided by the respondent. In particulars given in reply to the respondent’s request for further and better particulars, the applicants define ‘education material’ to be ‘books, videos, and other documents of all description, together with the speech of the teacher used to communicate the ideas, methods and facts referred to in the curriculum of the Respondent relevant to the year and age of the student’.

20 The applicants pleaded, and this is disputed, that the respondent does not teach them by use of Auslan. They claimed that the respondent does not teach the applicants by teachers qualified in the use of Auslan.

21 Both applicants claimed that the respondent’s failure to provide teachers fluent in Auslan has retarded their education and will retard it in the future.

22 The applicants said that they have been taught by a combination of the spoken word and Signed English. They claimed that the quality and fluency of the Signed English used by the respondent has been poor. Particulars were sought of this plea. In Ben’s proceedings, the following particulars to par 14 of his Statement of Claim were given in a document entitled ‘Amended Further and Better Particulars of the Statement of Claim’:

‘Regarding paragraph 14, the Applicant claims that the Signed English referred to was:

(a) “poor in quality” based on;

(i) the fact that:

(1) the Applicant cannot produce meaningful, age appropriate English in spoken, written or signed form;

(2) the Applicant’s use of Signed English is consistently ungrammatical;

(3) the Applicant is unable to, by the use of Signed English, combine ideas in a logical sequence to achieve unity of thought and continuity in telling a story;

(4) the Applicant does not have an intellectual disability.

(ii) the observations of Gail Smith, who is a fluent Auslan signer, and experienced in the use of Signed English and John Uri a qualified teacher of the Applicant’s teachers at Noosaville Primary School;

(iii) the observations of the Applicant’s mother, Kim Devlin;

(iv) the observations of the Applicant;

(v) the lack of recognised qualifications of teaching staff.

(b) “poor in fluency” based on;

(i) the fact that:

(1) the Applicant cannot produce meaningful, age appropriate English in spoken, written or signed form;

(2) the Applicant’s use of Signed English is consistently ungrammatical;

(3) the Applicant is unable to, by the use of Signed English, combine ideas in a logical sequence to achieve unity of thought and continuity in telling a story;

(4) the Applicant does not have an intellectual disability.

(iii) the observations of the Applicant’s mother, Kim Devlin;

(iv) the observations of the Applicant;

(v) the lack of recognised qualifications of teaching staff.’

23 The particulars given are inappropriate. The fact that Ben cannot produce meaningful age appropriate English in spoken or written form; his use of Signed English is consistently ungrammatical; he is unable by the use of Signed English to combine ideas in a logical sequence with the consequences described; and that he does not have an intellectual disability, are not particulars of poor quality Signed English used by the respondent.

24 The observations referred to in subparagraphs (a)(ii), (iii) and (iv) are not particulars. That is the evidence by which the applicant might prove the poor quality of the Signed English used, but are not particulars of the poor quality.

25 The same remarks apply to the particulars given of ‘poor in fluency’. They are not proper particulars of the allegations in par 14 of Ben’s Statement of Claim.

26 In Tiahna’s case, she also gave particulars of the same plea of the poor quality and fluency of the Signed English which has been used by the respondent. She pleaded:

‘3. Regarding paragraph 18, the Applicant claims that the Signed English referred to was –

(a) “poor in quality” based on;

(i) the observation of the Applicant’s mother, who is a fluent Auslan signer, and experienced in the use of Signed English;

(ii) the lack of recognised qualifications of teaching staff.

(b) “poor in fluency” based on;

(i) the observation of the Applicant’s mother, who is a fluent Auslan signer, and experienced in the use of Signed English;

(ii) the lack of recognised qualifications of teaching staff.’

27 For the reasons already given, the particulars given are not particulars, but evidence. Subparagraphs 3(a)(i) and 3(b)(i) contains the evidence by which the claim may be proved. Subparagraphs 3(a)(ii) and 3(b)(ii) do not support the plea of ‘poor in quality’. The lack of recognised qualifications of teaching staff does not mean that the Signed English is poor in quality. There would be many people who are unqualified but who may be quite fluent in Signed English.

28 Prior to trial, the respondent took no issue in respect of the applicant’s responses to its request for particulars and did not seek to strike out the particulars or seek better particulars. However, there is a reason for drawing attention to the pleas in par 14 and par 18 of the Statements of Claim and the purported particulars.

29 During the hearing, Mr Gray, who appeared for the applicants, said that the applicants put their cases on two bases. First, on the basis already described, that the only appropriate method of education of the applicants was by Auslan and any other method meant the applicants were the victims of discrimination.

30 Secondly, that even if it were appropriate to teach the applicants in Signed English and spoken English, the education offered these applicants was so poor, both in quality and fluency, that the applicants were in that regard the victims of discrimination.

31 During the course of the trial and, more particularly, during closing addresses, I advised the applicants’ counsel that the applicants’ amended Statements of Claim and the particulars given did not raise the case as presented on the alternative and second basis. Whilst the applicants alleged that the quality and fluency of the Signed English offered has been poor, they did not assert that these facts gave rise to discrimination. Their plea of discrimination did not relate to the quality and fluency of the Signed English but only to the claim that any method of education that is not given in Auslan is inappropriate and amounts to discrimination.

32 It seemed to me that their claim, as pleaded, was that as a result of the respondent’s failure to provide Auslan communication it had diminished their education outcome.

33 At the conclusion of the respondent’s case, both applicants sought leave to file a further amended Statement of Claim.

34 In Tiahna’s case, the only amendment sought to be made was to plead that she was ‘severely to profoundly deaf’ rather than simply ‘profoundly deaf’. The respondent did not object to me granting leave and leave was given to Tiahna to amend her Statement of Claim accordingly.

35 No attempt was made to plead the second basis relied upon by Mr Gray: [29]. Indeed, Mr Gray confirmed, after leave was given to amend Tiahna’s Statement of Claim, that her case was simply that she had been discriminated against because she had not been taught in Auslan. That is the single act of discrimination relied upon.

36 In Tiahna’s case, therefore, her claim is quite simple. It is that the respondent has discriminated against her by failing to provide her with Auslan instruction and, as a result, her education outcome has been diminished.

37 Because Tiahna limited her claim to discrimination based solely on a failure to provide her with Auslan instruction, it rendered a good deal of the evidence given in her case irrelevant. Her mother had sworn affidavits in which she was critical of the respondent’s education of Tiahna in a number of respects. She was also highly critical of some of Tiahna’s teachers. She was cross-examined on her affidavits and she maintained those criticisms. I will address her evidence in due course but I make the point, at this early stage, that most of her complaints were, on Tiahna’s own case, as it was left with me, irrelevant. Whilst the respondent has in its defence in answer to those particular criticisms positively asserted reasons why Tiahna has not achieved the same level as her hearing peers, that plea has also been rendered irrelevant. It follows that Ms Smith’s evidence on that issue is also not relevant. There is no reply and, therefore, no positive plea on Tiahna’s part that the poor quality of her education has meant that she has been discriminated against.

38 During the course of closing addresses, a number of attempts were made to amend Ben’s Statement of Claim so that the pleadings reflected the two bases referred to by Ben’s counsel. As already mentioned, this application to amend Ben’s Statement of Claim was made after the close of the respondent’s case.

39 In the end result, Ben sought leave to amend his Statement of Claim in three ways. First, was to recognise that he was currently receiving five hours tuition per week in Auslan. There was no objection to that amendment.

40 The second amendment was more significant. He sought to replead the particulars given in par 14 of the Statement of Claim. In doing so, he sought to delete the existing particulars in the Statement of Claim and include particulars different to those previously given in the Amended Further and Better Particulars of Claim. He sought to amend par 14 in the following way:

‘14. The quality and fluency of the Signed English used by the Respondent in the teaching of the Applicant has been, and is, poor.

PARTICULARS

(a) The Respondent has taught, continues to teach, and insofar as may be presently ascertained, would in future teach the Applicant by a varied mixture of Signed English and the spoken word.

~~(b) As to the past circumstances and the past, the Respondent is referred to the relevant material in the affidavit of Kim Devlin filed most recently in this proceeding.~~

(a) The Signed English used has not been fluent.

(b) The Signed English used has relied on a limited vocabulary.

(d) The teachers and teachers aides teaching the Applicant have not been qualified in Signed English or have not been sufficiently qualified in Signed English.

(e) The teachers and teachers aides teaching the Applicant have been inadequately trained in Signed English.

(f) The Respondent has not been able to provide a language environment equivalent to that provided to the Applicant’s hearing peers in the spoken word.

(g) The Signed English used by the teachers and teachers aides teaching the Applicant has been of a standard which could fairly be described as basic, elementary or at best developing.’

41 He also sought to make consequential amendments in pars 20 and 23 of the Statement of Claim. The respondent objected to those proposed amendments.

42 The proposed amendments raise issues not previously pleaded. Whilst Ben’s counsel contended that the then existing plea could be understood to raise a claim of discrimination based on the poor quality of education given to Ben over his school life, for the reasons already given, the amended Statement of Claim does not clearly raise that issue. The proposed amended Statement of Claim does.

43 The respondent argued that the proposed amendment was too late. The respondent contended that Ben had had a number of opportunities to make these allegations prior to trial. It submitted that I had raised this issue with Ben’s counsel on a number of occasions during the trial but it was not until the respondent had closed its case that these amendments were sought.

44 Mrs Devlin’s evidence was quite critical of Ben’s teachers and their abilities to teach him.

45 The respondent answered that criticism by calling all of the relevant teachers who had been associated with Ben’s education over the relevant period. However, the respondent submitted that those teachers were called to prove the education that had been offered and the system of education, not for the purpose of answering the matters which Ben sought to raise after the conclusion of the trial.

46 In my opinion, the respondent could not claim that it was taken by surprise by this amendment.

47 The original complaint of discrimination, lodged with the Human Rights and Equal Opportunity Commission (HREOC) on 30 May 2002, included the following summary of complaint:

‘2. Benjamin’s teachers are not qualified teachers of the deaf

Even during the other four days a week, the teachers who are available to supervise and teach Benjamin have only rudimentary Signed English skills, and no knowledge at all of Auslan. Benjamin does not have regular access to a fluent interpreter.

3. Benjamin’s curriculum does not include a Bilingual / Bilateral program

4. Because Benjamin has been unable to access the services of trained staff on a full time basis at school, his parents have had to pay a private therapist for speech, language and auditory training sessions. They feel that a school which is coded for hearing impairment should provide such support.’

48 The complaint was also accompanied by a statement of Mrs Devlin. In that statement, she identified teachers who knew no Signed English and could not communicate with Ben. She said:

‘My husband and I have five children, and love each of our children dearly and equally. However, we are concerned on Benjamin’s behalf to secure for him the same education which his non-hearing impaired siblings have received as a matter of course.

For almost the entire time Benjamin has attended the SEC, it has been a struggle to ensure that he receives an adequate education. Staffing problems have plagued the school, and the teachers and teachers-aids [sic] generally have either no knowledge of Signed English, or only a rudimentary knowledge which is barely enough to communicate with Benjamin, let alone teach him.’

49 In the end result, I have formed the view, with some hesitation, that allowing the amendments sought in pars 14, 20 and 23 would not disadvantage the respondent. I think that the respondent has addressed the issues raised in the proposed amendments in the affidavits which it filed in opposition to the original claim.

50 Ben, of course, is not responsible for the way in which the case has been framed. In those circumstances, I think the interest of justice requires me to allow the amendments to be made and I will make an order to that effect.

51 There were other amendments which Ben sought leave to make to the Statement of Claim which I shall deal with after identifying the legal issues.

52 After the parties’ addresses, I gave leave to the respondent to make submissions in writing in relation to the issues raised in those amendments. In due course, I received submissions in writing and later, submissions in reply from Ben’s legal advisers. I shall have regard, of course, to those submissions in considering the matters raised in the amendments.

THE LAW

53 Discrimination can either be direct or indirect. Direct discrimination is dealt with in s 5 of the Act, which provides:

‘5(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.’

54 The respondent would be guilty of discrimination if, because of the applicants’ deafness, the respondent has treated and/or proposes to continue to treat the applicants less favourably than the respondent treats the applicants’ non-hearing impaired peers. To establish direct discrimination, assuming the circumstances are the same or not materially different, an applicant must prove that, because of his/her disability, the discriminator has treated or proposes to treat him/her differently in the sense of less favourably than the discriminator treats a person without a disability. The applicant must establish that he/she has a disability as defined in s 4 of the Act; that the discriminator has treated or proposes to treat the applicant differently than a person without a disability; that the discriminator has differentiated or proposes to differentiate in the treatment because of the applicant’s disability; that the circumstances are the same or not materially different; and that the different treatment is less favourable than that offered to a person without a disability.

55 In Purvis v New South Wales (Department of Education and Training) (2003) 202 ALR 133 at [213], Gummow, Hayne and Heydon JJ said:

‘ Section 5(1) of the Act requires comparison between the treatment which the discriminator gives, or proposes to give, to the aggrieved person and the treatment that the discriminator would give, or would propose to give, to a person without the aggrieved person’s disability “in circumstances that are the same or are not materially different”. If that comparison reveals that the disabled person was treated less favourably, a further question which must be asked is whether that was because of the disabled person’s disability. Section 5(1), therefore, requires equality of treatment between the disabled and those who are not. Attention is invited to how the discriminator “treats or would treat a person without the disability” (emphasis added). The “comparator” identified by s 5 (1) is “a person without the disability”.’

56 Section 5 requires a comparison of the separate treatments of the disabled applicant and the person without a disability. If the treatments are different, then the next question is whether the treatment of the disabled applicant was because of the applicant’s disability.

57 If the applicant has been treated differently because of his/her disability, the last question to be answered is whether the treatment is less favourable and that again requires a comparison of the two treatments and a judgment whether the disabled applicant has in fact been treated less favourably.

58 In Haines v Leves (1987) 8 NSWLR 442 at 471, Kirby P said:

‘ The words “less favourably” and “on the ground of”, permit wide scope to the Tribunal in applying its judgment to the facts proved in each case. Both involve imprecise phrases which necessitate judgment and the characterisation of conduct which is impugned. The first requires a comparison of the treatment in the actual and in an hypothesised case: see Mahoney JA, Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13. As was pointed out in that case, a “detriment” concept of discrimination has hitherto been adopted: cf Ministry of Defence v Jeremiah [1980] QB 87. The motive, reasons or suggested justifications of the detriment are irrelevant, if it can be shown that there is differentiation of treatment, which results in detriment to the person affected: see Clay Cross (Quarry Services) Ltd v Fletcher [1978] 1 WLR 1429; [1979] 1 All ER 474 (Eng CA).’

59 Ben’s alternative case, which is now contained in the amended pleadings, is one of direct discrimination. He says that he has been treated differently than his hearing peers because of his disability. His hearing peers have teachers who can communicate in English. His teachers cannot communicate with him in English because they cannot communicate fluently in Signed English. He has been treated differently because of his disability. He has been treated less favourably.

60 Indirect discrimination is addressed in s 6 of the Act:

‘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:

(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

61 This type of discrimination has sometimes been described as ‘adverse effect discrimination’: Street v Queensland Bar Association and Others (1989) 168 CLR 461 per Brennan J at 508.

62 Section 6 addresses what has been described as ‘facially neutral’ conduct. That is conduct which, on the face of it, is not discriminatory but has a discriminatory effect.

63 In Waters and Others v Public Transport Corporation (1991) 173 CLR 349, Dawson and Toohey JJ, after dealing with direct discrimination, said at 392:

‘On the other hand, indirect discrimination occurs where one person appears to be treated just as another is or would be treated but the impact of such “equal” treatment is that the former is in fact treated less favourably than the latter. … Both direct and indirect discrimination therefore entail one person being treated less favourably than another person. The major difference s that in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable.’

64 There is no direct discrimination but the particular requirement or condition has a discriminatory effect. It will have that discriminatory effect if, because of the person’s disability, the requirement or condition satisfies all of the matters in subparagraphs (a), (b) and (c) of s 6.

65 The two forms of discrimination are materially exclusive in their operation: Australian Medical Council v Wilson (1996) 68 FCR 46 per Heerey J at 55 (Black CJ agreeing) and per Sackville J at 74.

66 There are four separate matters which must be established if an applicant is to prove indirect discrimination. First, that the discriminator has required the applicant to comply with a requirement or condition. Secondly, that a substantially higher proportion of persons without the applicant’s disability have complied, or are able to comply, with the requirement or condition. Thirdly, the requirement or condition is not reasonable having regard to the circumstances of the case. Fourthly, the requirement or condition must be one with which the applicant has not complied or is not able to comply.

67 The words ‘requirement or condition’ are to be construed broadly and beneficially: Australian Iron and Steel Proprietary Limited v Banovic and Others (1989) 168 CLR 165 at 195 per McHugh J. The requirement or condition must be something more than is inherent in the goods or services offered or provided. In Waters and Others v Public Transport Corporation at 361, Mason CJ and Gaudron J said:

‘ The subject matter of s. 17(5) of the Act is usually referred to as “indirect discrimination” or as “adverse effect discrimination”, signifying that some criterion has been used or some matter taken into account which, although it does not, in terms, differentiate for an irrelevant or impermissible reason, has the same or substantially the same effect as if different treatment had been accorded precisely for a reason of that kind.’ [Footnotes omitted.]

68 The requirement or condition need not be explicit, it may be implicit: (at 360). It is necessary to precisely indicate the requirement or condition that is said to have been required of the applicant with a disability. Unless the precise requirement or condition is identified, the further inquiries that s 6 demands cannot be undertaken. Unfortunately, both applicants have been unable to identify the requirement or condition with any precision at all.

69 Once the requirement or condition is identified, it is a matter of fact whether the disabled applicant has complied or cannot comply.

70 Next, the group, who are to be judged on their ability to comply, must be identified. In some cases, that can be quite difficult but not in this case. The group with which the applicant’s compliance must be compared are the applicant’s respective hearing peers in the classroom situation. When that group is identified, it is a question of fact whether a substantially higher proportion of that group can comply with the particular requirement or condition.

71 Lastly, if the applicant has established those first two matters, the question of reasonableness must be considered. That requires a consideration of all relevant circumstances and a judgment whether, objectively, it was reasonable for the discriminator to impose the requirement or condition. The relevant circumstances will include the reasons advanced for the requirement or condition; the effect upon those disabled persons who cannot comply with the requirement or condition; and any alternative requirement or condition or other method addressing the reasons advanced that are not discriminatory within the meaning of s 6(a) and (c).

72 A requirement or condition will not be reasonable simply because it is convenient or even more convenient. It must be reasonable. On the other hand, it need not be the only cause of action available. In the end result, it just has to be reasonable.

73 In Department of Foreign Affairs and Trade v Styles (1989) 88 ALR 621 at 634, Bowen CJ and Gummow J said:

‘ The third element in the definition of sex discrimination in s 5(2) is that the requirement or condition be “not reasonable having regard to the circumstances of the case”. As Wilcox J held (84 ALR at 429) the test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience. We agree. The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account.’

74 In Clarke v Catholic Education Office (2003) 202 ALR 340, Madgwick J summarised the law on this point and said at [51]:

‘ Following Secretary, Department of Foreign Affairs and Trade v Styles, Waters and Commonwealth Bank of Australia v Human Rights & Equal Opportunity Commission (1997) 150 ALR 1; 50 ALD 360, the following may be stated as settled propositions of law:

(1) The onus of showing that the impugned requirement or condition is not reasonable rests on the person aggrieved by it.

(2) Reasonableness is to be determined having regard to all the circumstances of the case. These include, but are not limited to:

— the nature and extent of the effect of the discriminatory requirement or condition;

— the reasons advanced in favour of it;

— the possibility of alternative action; and

— matters of “effectiveness, efficiency and convenience”.

(3) The test is an objective one — neither the preferences of the aggrieved person nor the mere convenience of the service supplier can be determinative, though both may be relevant factors.

(4) The test of reasonableness is “less demanding than one of necessity, but more demanding than a test of convenience”. Thus, if the aggrieved person can show that it may have been convenient for the discriminator to impose the requirement or condition but it was not reasonable in all the circumstances, that will suffice. Likewise, if it appears that although it was not necessary for the discriminator to impose the requirement or condition, but the aggrieved person does not establish that it was unreasonable to do so, there is no indirect discrimination, as statutorily defined.

(5) The test is reasonableness and correctness; that is, a decision of the putative discriminator to impose the requirement or condition, may be a reasonable one although not everyone, or even most people, would agree with it.’

75 The question of reasonableness will always be considered in the light of the objects of the Act which are to eliminate, as far as possible, discrimination against persons on the ground of disability, to ensure as far as practicable that persons with disabilities have the same rights to equality before the law, and 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.

76 Section 22 deals specifically with discrimination in education. Section 22(2) makes it unlawful to discriminate against a student on the ground of a student’s disability.

77 Section 22(2) of the Act provides:

‘(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:

(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

78 ‘Disability’ is defined in s 4 of the Act. Deafness is a disability within the meaning of that definition in the Act. Thus, s 22(2) makes it unlawful to discriminate against a student on the ground of a student’s deafness by denying the student access or limiting the student’s access to any benefit provided by the educational authority or by subjecting the student to any other detriment.

79 The two issues in the applicants’ claims of indirect discrimination are whether the applicants can comply with the requirement or condition and, if not, whether the requirement or condition is reasonable having regard to the circumstances of the case. Notwithstanding the respondent’s submission to the contrary, there is no doubt that a substantially higher proposition of non-hearing impaired persons can comply with the requirement or condition because the instruction they receive is in English. As the authorities to which I have already referred show, the onus is upon the applicants to establish the two issues in dispute.

REQUIREMENT OR CONDITION

80 As I have already indicated, Tiahna’s Statement of Claim was in the same form at the end of the trial as it had been at the start with the minor exception to which I have referred.

81 The requirement or condition, which she said the respondent required her to comply with, is pleaded in par 38 of her Statement of Claim.

82 She pleaded:

‘38. The Respondent, in respect of its past and future conduct as to the method of communication by which the Applicant has been and will be taught, requires the Applicant to comply with a requirement or condition that, by means of English, the Applicant:

(a) be best educated;

(b) be adequately educated;

(d) reach an education outcome comparable to that of the Applicant’s hearing peers.’

83 In my opinion, the words following ‘the Applicant:’ have no application to the requirement or condition which Education Queensland, on any understanding, required Tiahna to comply.

84 The applicants’ case is that they should be instructed in Auslan because that is the best and only appropriate method of communication in education with profoundly deaf children. They have not been so instructed. Education Queensland has required them to receive their education in English. Therefore, the applicants say that the requirement or condition is to accept an education and receive instruction in English and not Auslan and without the assistance of an Auslan teacher or an Auslan interpreter.

85 In my opinion, the requirement or condition which Tiahna complains about is a requirement or condition which I have mentioned above and, that is, that Tiahna accept an education and receive instruction in English without the assistance of an Auslan teacher or an Auslan interpreter.

86 I think this convoluted plea is to avoid the respondent’s argument that Tiahna could comply with that requirement or condition because they could both understand English. However, I do not think that it is permissible to raise a false requirement or condition to meet that argument. The issue in this case is whether the applicants require Auslan, in whatever form, to obtain and receive the same education and quality of education as their hearing peers.

87 I propose to proceed on the basis of the requirement or condition which I have identified, which I think is sufficiently pleaded in Tiahna’s Statement of Claim, at least, implicitly.

88 In par 29 of Ben’s Statement of Claim, which was filed on 29 January 2004 pursuant to leave given by Spender J, he pleads:

‘29. The Respondent, in respect of its past and future conduct as to the method of communication by which the Applicant has been and will be taught, requires the Applicant to comply with a requirement or condition that, by means of English, the Applicant:

(a) be best educated;

(b) be adequately educated;

(d) reach an education outcome comparable to that of the Applicant’s hearing peers.’

89 It can be seen that the plea is in the same form as Tiahna’s plea.

90 In my opinion, for the reasons already given, the words following the word ‘English’ have no application to the requirement or condition imposed.

91 During addresses, as I have already indicated, Ben’s counsel made a number of applications to amend the Statement of Claim. The third amendment, to which I referred in par [40] of these reasons, was to replead par 29 and to insert pars 29A to 29E. The proposed pleas were in the following form:

(a) be best educated;

(b) be adequately educated;

~~(c) reach his educational potential;~~

~~(d) reach an education outcome comparable to that of the Applicant’s hearing peers;~~

(e) be educated.

29A. Further the Respondent, in respect of its past and future conduct as to the quality of the method of communication by which the Applicant has been and will be taught, requires the Applicant to comply with a requirement or condition that, with the exception of the Auslan period, by means of poor spoken and signed English, the Applicant:

(a) reach his educational potential;

(b) reach an education outcome comparable to that of the Applicant’s hearing peers;

29B. The Respondent, in respect of its past and future conduct as to the method of communication by which the Applicant has been and will be taught, requires the Applicant to comply with a requirement or condition that, with the exception of the Auslan period, by means of Total Communication, the Applicant:

(a) be best educated;

(b) be adequately educated;

29C. Further and in the alternative, the Respondent, in respect of its past and future conduct as to the quality of the method of communication by which the Applicant has been and will be taught, requires the Applicant to comply with a requirement or condition that, with the exception of the Auslan period, by means of poor Total Communication, the Applicant:

(a) reach his educational potential;

(b) reach an education outcome comparable to that of the Applicant’s hearing peers;

29D. The Respondent, in respect of its past and future conduct as to the method of communication by which the Applicant has been and will be taught, requires the Applicant to comply with a requirement or condition that, with the exception of the Auslan period, the Applicant be educated without a full time Auslan interpreter.’

92 In my opinion, leave ought to be granted to Ben to amend the plea in par 29 as proposed except for the inclusion of subparagraph (e), even though the result of the plea is to leave an awkward and rather cumbersome claim of a requirement or condition. In respect of par 29(e), I would refuse leave to amend because, in my opinion, it adds nothing to the proposed plea.

93 However, I would not grant leave to Ben to amend to include pars 29A, 29B and 29C which I think take his claim nowhere. His claim is, like Tiahna’s claim, that he has been indirectly discriminated against by reason of a requirement or condition which required him to undergo his education in English and without the assistance of an Auslan teacher or an Auslan interpreter.

94 The matters contained in each of the subparagraphs of pars 29A, 29B and 29C are, in my opinion, irrelevant as they are in respect of pars 29(a), (b) and (c).

95 Paragraph 29D most nearly reflects the issues which were raised in this case. Allowing that amendment would not prejudice the respondent. Therefore, leave will be granted accordingly.

JURISDICTION

96 A person who complains of disability discrimination may lodge a written complaint with HREOC or a complaint may be lodged on that person’s own behalf: s 46P(2) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the HREOC Act). In both cases, a complaint was made on 30 May 2002.

97 Any complaint made to HREOC under s 46P must be referred to the President: s 46PG of the HREOC Act.

98 A claimant is entitled to withdraw a complaint with the leave of the President: s 46PG of the HREOC Act. The President may terminate a complaint for any of the reasons in s 46PH(1). If the President decides to terminate a complaint, the President must notify the complainants, in writing, of that decision and of the reasons for the decision: s 46PH(2) of the HREOC Act.

99 In Ben’s case, the President terminated the complaint on 4 December 2002 because the President was satisfied there was no reasonable prospect of the matter being settled by conciliation.

100 In Tiahna’s case, the President also terminated the complaint on 4 December 2002, again, because the President was satisfied there was no reasonable prospect of the matter being settled by conciliation.

101 If a complaint has been terminated by the President under s 46PH of the HREOC Act and the President has given notice to any person under s 46PH(2), any person on whose behalf the complaint was lodged may make an application to the Federal Court or the Federal Magistrates Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint: s 46PO of the HREOC Act.

102 Section 46PO(3) of the HREOC Act provides:

‘(3) The unlawful discrimination alleged in the application:

(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.’

103 In Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573, Katz J was called upon to consider the construction of s 46PO of the HREOC Act. In that case, the application to HREOC had been made on 3 April 1999. Katz J said at 581:

‘ On the construction which I give to s 46PO(3) of the HREOCA, it is apparent that par (a) thereof provides no warrant for an applicant in a proceeding in this Court to make any allegation of fact in the proceeding different from those which were made in the applicant’s earlier complaint to the Commission. On the other hand, par (b) thereof does permit an applicant in a proceeding in this Court to make allegations of fact in the proceeding different to a certain extent from those which were made in the applicant’s earlier complaint to the Commission. However, I find nothing, even the language of par (b) itself or in the example of its operation given in the Senate explanatory memorandum, insofar as that example reveals a legislative intent regarding the operation of par (b), which would support a construction of the paragraph that permitted Mr Charles to allege in the present proceeding the doing by Fuji Xerox after 3 April 1999 of any act constituting unlawful disability discrimination in employment.’

104 It is the respondent’s contention that the applicants are constrained by s 46PO(3) in the following way.

105 First, neither applicant can rely upon any facts to claim any discrimination after 30 May 2002. Secondly, the unlawful discrimination, into which this Court can inquire, must be the same as was the subject of the terminated complaint or must arise out of the same or substantially the same acts, omissions or practices that were the subject of the terminated complaint.

106 The respondent asserts that the allegations contained in the original complaint, made on behalf of Ben, do not assert any facts or circumstances prior to the beginning of the 2001 school year. Accordingly, it is argued, this Court is only permitted to inquire into the facts and circumstances surrounding the 2001 school year and the school year until 30 May 2002.

107 I do not agree with that contention. I think the tenor of Ben’s complaint was that he had been discriminated against by Education Queensland throughout the whole of his education upon the two bases which are now before this Court. It is therefore necessary to determine that issue rather than the narrow issue contended for by the respondent.

108 The respondent conceded that, in Tiahna’s case, the allegations in her complaint cover the period from her birth. However, it is the respondent’s contention that this Court’s inquiry is limited to the period ended 30 May 2002.

109 Whilst I have rejected the respondent’s first contention that Ben’s inquiry should be limited to a commencement date in the 2001 school year, I do accept the respondent’s contention that the inquiry should be limited to the period ended 30 May 2002.

110 That, however, does not necessarily make any evidence subsequent to 30 May 2002 irrelevant. That evidence may be relevant to show whether Ben’s direct discrimination claim, whether his teachers prior to 30 May 2002 were fluent in Signed English and, in both applicants’ indirect discrimination claims, whether they were able to comply with the requirement or condition or, alternatively, whether to that point of time, namely 30 May 2002, the requirement or condition was reasonable, have been made out.

111 However, in the end result, the inquiry must be whether the acts of discrimination, in whatever form, occurred prior to 30 May 2002.

THE TWO CASES

112 Ben’s principal case and Tiahna’s case, put shortly, is that because they are profoundly deaf the only way in which they can be taught, which would not amount to discrimination under the Act, is in Auslan. They cannot be taught by the spoken word because they cannot hear it. They should not be taught in Signed English because that is an inferior method of communication than Auslan.

113 The respondent admits that it has the responsibility for and administers 1292 educational institutions throughout the State of Queensland. It admits that Ben was a student of an educational institution over the period of time claimed in his Statement of Claim. It also admits that Tiahna was educated in its institutions as alleged in her Statement of Claim.

114 The respondent does not admit that the best method of communication with which to teach the applicants is Auslan because, it claims, there has been a divergence in relevant opinion about what is the best method of communication to apply when teaching students who are deaf.

115 It says that its policy recognises a variety of methods for communication with deaf children such as Signed English (signing), finger spelling, lip reading, speech and the use of residual hearing. Auslan is but one of the methods of communication recognised under the total communication for the deaf/hearing impaired. Its policy is described as the ‘Total Communication Policy’.

116 It says that Auslan does not have a written form and any student who uses Auslan, to the exclusion of all other methods of teaching, cannot acquire literacy in English. The respondent claims that is likely to be detrimental to that person and, in particular, the applicants, because the applicants would not be able to interact with their peers or their teachers or acquire and develop literacy skills.

117 The respondent’s Defences join issue with the applicants’ Statements of Claim that Auslan is the only appropriate method of communication for teaching deaf children.

118 In respect of Ben, the respondent asserts that if Ben has not gained access to the education material provided by the respondent at the same rate and degree as his hearing peers, there are reasons unconnected with the respondent’s teaching program for that, being:

‘(i) the delay in the diagnosis of the Applicant’s hearing impairment;

(ii) the delay, at the request of the Applicant’s next friend, in the Applicant’s introduction to signing as a mode of communication until 1998;

(iii) the Applicant’s poor behaviour at times in class;

(iv) the Applicant’s regular failure to perform homework;

(v) the Applicant’s irregular attendance at school;

(vi) the Applicant’s regular failure to wear an FM amplification unit during his attendance at school;

(vii) the rudimentary or non-existent signing skills in signed English and Auslan held by the Applicant’s parents and siblings and their failure to contribute to the Applicant’s learning.’

119 The respondent generally denies that the education it offered Ben was in any way inferior to that offered to his hearing peers and it denies that it has been guilty of any form of discrimination under the Act.

120 The respondent raises the same general issues in answer to Tiahna’s claim and positively asserts that if she has not gained access to the education material provided by the respondent at the same rate and degree as her hearing peers, then that is as a result of:

‘1. The Applicant’s irregular attendance at the Noosaville SEU;

2. The Applicant’s failure to stay for the complete class, when she does attend classes at the Noosaville SEU;

3. The Applicant’s lack of responsiveness to the classes she attended at the Noosaville SEU because of her being distracted by the presence in class of the Applicant’s next friend;

4. The failure of the Applicant’s next friend or another member of the Applicant’s family to attend all the sessions the advisory visiting teacher provided to the Applicant, thereby minimising the benefit of the AVT service provided by the Respondent to the Applicant;

5. The failure of the Applicant to attend all of the AVT sessions that the Respondent was prepared to provide to the Applicant;

6. The Applicant’s next friend’s failure to participate in all of the meetings arranged by the Respondent for the purpose of discussing the Applicant’s educational needs;

7. The failure of the Applicant’s parents to re-enrol the Applicant in the Noosaville SEU or another special education facility after the Applicant’s enrolment at the Noosaville SEU in 2001 had lapsed;

8. The Applicant’s next friend regularly changing the Applicant’s place and mode of education.’

121 Whilst Tiahna’s case is that she has been discriminated against because she has not been taught in Auslan, the respondent’s plea is not thereby rendered irrelevant. The respondent has raised a positive case seeking to establish why Tiahna has not gained access to the same educational material as her hearing peers.

122 In the end result, the following factual issues raised on the pleadings are whether:

1. The only appropriate method of communication for teaching profoundly deaf or severely to profoundly deaf children is Auslan;

2. If the State does not provide Auslan interpreters and teach profoundly deaf children in Auslan it thereby discriminates against them under the Act;

3. The applicants have failed to obtain access to the education material provided by the respondent at the same rate and degree as the applicants’ hearing peers;

4. That is as a result of the failure by the respondent to provide Auslan education;

5. That is as a result of the particular circumstances asserted by the respondent in its Defences; or

6. In Ben’s case, he has been discriminated against because of the poor quality and fluency of the Signed English by which he was taught until 30 May 2002.

123 There are, of course, degrees of deafness. Some people who are deaf are able to hear with the use of aids. Those who can hear, with the use of aids, can be taught by the spoken word. Some other people are able to hear by the use of cochlear transplants. Those people can also be taught by the spoken word and, although suffering some disadvantages, compared with those who can hear with the use of aids, can usually be instructed by the spoken word.

124 Some people are severely deaf. Some people are profoundly deaf. Deaf Children Australia defines a ‘profoundly deaf’ person as one who has no hearing over 90 decibels. Those people cannot hear the spoken word. Communication with those people must be in some other way apart from the spoken word. They must be taught other than solely by use of the spoken word. In many cases, those who are severely or profoundly deaf cannot communicate by way of the spoken word with other people. They must be taught to communicate with others other than by use of the spoken word.

Auslan

125 Auslan is the native language of the deaf community in Australia. The deaf communities in countries throughout the world have developed a native language in each of their countries. Dr Komesaroff, who was called by the applicants, defines ‘Auslan’ in the following way:

‘The native language of the Australian Deaf community. Auslan is a visual-spatial language in the gestural medium which has its roots in the sign languages brought to Australia from Britain and Ireland during the 1800s. Like all native sign languages, Auslan is distinct from the language spoken by the surrounding hearing culture, English, yet is influenced by it, both lexically and grammatically. Auslan shares the features of all natural languages with complex grammatical and semantic systems; like other native sign languages, these are not derived from the language spoken by the surrounding hearing culture. Signs are conventional symbols constructed with each of the elements of handshape, location, movement, hand orientation and facial expression.’

126 Auslan is the natural sign language of the deaf community. Auslan does not have an oral or written component. Thus, a person who understands the Auslan language communicates in that language only with his or her hands. Auslan has a different linguistic structure both as to syntax and morphology than English.

Signed English

127 A method of communication with deaf people is Signed English. Signed English is an attempt at reproducing the English language by signs rather than by word. It has the same syntax and grammar as the English language. Instead of the words being used, the words are signed by use of the hands. It is not a language separate from English. A non-hearing impaired person using Signed English usually speaks the words at the same time as that person signs those words. That allows the deaf person to see the way in which the words are spoken. Shortly put, Signed English is a combination of lip reading and signing.

128 Signing is often accompanied by finger spelling, which uses a combination of fingers to represent each letter of the alphabet and enables the person using that system to spell out English words.

SIGNING IN ENGLISH

129 One of the witnesses called by the applicants (Ms Pardo) distinguished between Signed English and signing in English. In an affidavit sworn on 21 March 2004, she said:

‘34. Some people suggest that if Manually Coded English or signing in English is an acceptable feature of bilingual programs, then why not Signed English? The answer to this question is complex. I have outlined some of the arguments against the use of Signed English in paragraph 3. The similarity in terminology means that Signed English and signing in English are often mistaken for similar processes. In fact, they are most distinct. Signing in English refers to the use of Auslan signs in English word order. Therefore, in order to utilise signing in English, the individual must first learn Auslan. It is not sufficient for that individual to simply learn Auslan vocabulary. They must also understand the way in which meaning is generated in Auslan, which entails a knowledge of grammar, both morphology and syntax. Because they are using signing in English as a tool for developing literacy skills, they need a sophisticated understanding of how the two languages work, and in particular, how they differ. Signing in English may pose a valuable tool in bridging the expanse between Auslan and English. It has none of the conceptual dilemmas of Signed English. As it is not used concurrently with voice, correspondence between speech and signing is not an issue. Signing in English is a distinct skill from the skill of using Auslan. Many deaf people develop the skill of signing in English and use it when “codeswitching” between Auslan and English, in particular contexts. Therefore, while Auslan is used by deaf students to access all aspect of the curriculum, signing in English may be used by teachers and students to focus explicitly on the acquisition of English.’

130 In her cross-examination she said:

‘Now, we should be plain – to explain to his Honour, that signing in English as you did, is not the same as signed English, is it?---Correct.

And the difference is, and correct me if I am wrong, that signing in English is to follow the English syntax and morphology but to use Auslan signs effectively?---Yes, indeed.

And where Auslan doesn’t have a capacity to do something, then you have to revert to occasional finger spelling to supplement the Auslan, don’t you?---Yes.

And one of the features of Auslan which we can address at that point is that Auslan doesn’t have – generically doesn’t have things such as participial endings, plurals and other features of English morphology?---It has a very different grammatical system from English.

Yes. I said morphology; I think I meant syntax and grammar, and you say grammatical quite correct?---Yes, I use grammar to mean both morphology and syntax.

And you are correct. And you are correct. The grammar and syntax is very different, and hence we get things like partipial endings, conjunctions, plurals and so on with no equivalent in Auslan?---No.

That is, you agree with me?---Yes, I agree with you, yes.’

131 Professor Power described this form of communication as Pidgin Signed English, which he described as ‘a combination of signed English and Auslan (English-influenced Auslan). It incorporates some Auslan grammar but uses English word order’. It is not easy to think that signing in English, as described by Ms Pardo and Professor Power, would be an effective means of communication. Auslan, with its different syntax and grammar, is a different language. To try to use it under English language rules must be extraordinarily difficult and confusing. No witness, including the two experts to which I have referred, suggested signing in English was an effective means of communication for the deaf.

Total Communication Policy

132 Education Queensland subscribes to a policy of total communication, which is formalised in Education Queensland’s policy ‘Total Communication for Deaf/Hearing Impaired Students’ (CS-11). When issued in 1994, that document defined that policy as follows:

‘1.1 Total Communication refers to a philosophy which states that deaf/hearing impaired students have available to them a variety of methods of communication. It recognises a variety of methods which may be used to facilitate communication, e.g. signs, fingerspelling, lipreading, speech and the use of residual hearing. The emphasis is on the development of communication skills, in particular, the development of language as a basis for all learning.

1.2 In practice, the term Total Communication has been used to refer to the combining of listening, speech, lipreading, signing and fingerspelling to represent English. This combination should more accurately be known as Simultaneous Communication. Thus staff speak and sign simultaneously in Signed English in order to facilitate the student’s English language development through the visual and auditory channels.’

133 That document also included a policy statement:

‘The Department of Education is committed to the provision of equitable educational opportunities in order that all students have access to, participate in and gain positive outcomes from schooling. Deaf/hearing impaired students are enrolled at all levels of schooling. Our Total Communication philosophy ensures that deaf/hearing impaired children across the state have equal access to an appropriate educational program and a consistent communication approach. Total communication aims to develop all aspects of communication with a focus on the development of language as a basis of all learning.’

134 The document addresses Signed English and provides the following:

‘2.13 English is the language of instruction for all students in Queensland schools. For those deaf/hearing impaired students requiring a sign component, Signed English is used as a method of instruction to develop communication and literacy skills.

2.14 All personnel working with the student who is deaf/hearing impaired must communicate effectively to ensure that the communication message is clear to the student. Signed English proficiency levels of support teachers, teacher aides and support personnel need to address and meet the needs of the student. Specialist personnel working with students who require a Signed English input must develop proficiency in the area and must continually refine and develop their skills.

2.15 All personnel must be encouraged to use Signed English at all times in the presence of deaf/hearing impaired students and adults. This might include incidental discussions among staff, parents and visitors.’

135 The terminology in CS-11 has changed since it was first promulgated but the changes do not relevantly affect the meaning of the document.

136 It was the applicants’ case that CS-11 clearly indicated that it was Education Queensland’s policy to educate those deaf/hearing impaired children who required signing in Signed English. The applicants contended that the policy in that respect was unambiguous. I must say that my reading of CS-11 led me to think that Education Queensland’s policy required its teachers to adopt the Total Communication Policy and, where signing was necessary, provide for communication in Signed English.

137 However, the respondent called the Deputy Director, Curriculum Study, of Education Queensland and a senior educator on the Sunshine Coast, both of whom referred to a memorandum which, they say, establishes that Auslan was a permitted form of instruction within that policy.

138 I shall refer to their evidence in more detail in due course when I give my reasons for rejecting that evidence.

139 In due course, it will be necessary to discuss the evidence of Professor Power and Ms Lawrence who described the circumstances in which the policy came to be adopted.

THE WITNESSES

140 The evidence-in-chief of all of the witnesses was provided in affidavit form. All but two of the applicants’ witnesses were cross-examined by the respondent’s counsel. All of the respondent’s witnesses were cross-examined by the applicants’ counsel.

141 In all, 32 witnesses gave oral evidence.

142 Neither of the applicants gave evidence and, having regard to their age, nor would I have expected them to do so. Both the applicants’ mothers gave evidence. Neither of the applicants’ fathers offered affidavits, so neither gave any oral evidence.

143 The applicants called a number of experts, two of whom gave evidence by videolink; one from the United States and the other from Melbourne.

144 The respondent called a number of teachers, teacher’s aides, a number of senior persons in Education Queensland and academics.

145 I think most of the witnesses endeavoured to assist me to reach the appropriate conclusion in the proceedings. There were exceptions.

146 Ms Smith is Tiahna’s mother. I have no doubt she wants the best for her daughter. However, she appeared to be a very critical person who expressed her criticisms in very strong language. I thought she exaggerated the complaints which she made. As Tiahna’s case was limited to a claim that she had been discriminated against because she had not been taught and instructed in Auslan, a number of Ms Smith’s criticisms were irrelevant and should not have been made. She was an unsatisfactory witness and I would not be prepared to act on her evidence unless it was uncontroversial or corroborated by an independent source.

147 On the other hand, whilst I thought Mrs Devlin was a nervous and defensive witness, I think she was, in the main, trying to assist me.

148 I do not think I was assisted by Dr Komesaroff’s or Ms Pardo’s evidence. They acted as advocates for Auslan and, in doing so, surrendered their academic detachment and objectivity.

149 I think the remainder of the applicants’ witnesses tried to help me as much as they could. Two of their experts, Professor Lane and Professor Branson, were quite impressive witnesses.

150 Many of the applicants’ teachers were subject to very trenchant criticism. I thought all of them gave their evidence reasonably, professionally and with dignity.

151 I thought all but three of the respondent’s witnesses were very good witnesses who gave their evidence in a professional and balanced manner. I thought they were all reliable.

152 There were three witnesses called by the respondent whose evidence I should separately address. Mr Patrick Cavanagh is the Principal of the Coolum State School. His evidence was flawed in that he failed to answer questions and tended to make speeches. He may have been defensive because of the trenchant criticism which has been offered of Tiahna’s education but that would only be an explanation for why his evidence was as it was. I do not mean to imply that he was not honest but his evidence was devalued by his inability to address a question directly. However, his evidence became largely irrelevant when Tiahna limited her case in the manner previouslydescribed.

153 Ms Best is the Deputy Director of Curriculum Development of Education Queensland and the senior person within Education Queensland called by the respondent. It was her evidence that CS-11, contrary, in my opinion, to its obvious terms, permitted and encouraged the use of Auslan as a language of instruction for deaf children. That evidence was contrary to the evidence of most of the respondent’s other witnesses. It was contrary to the evidence of Ms Lawrence who participated in the committee meetings which led to the introduction of the policy contained in CS-11. Ms Lawrence said in her evidence:

‘And at the time, back in ’95 and ’96, is it fair to say that you were of the view that the total communication policy did not permit the use of Auslan as a method of instruction?---No. I think it’s quite explicit that the language of instruction is signed English.

HIS HONOUR: Is that still your understanding?---Yes. It is.

And it doesn’t permit Auslan to be used as a language of instruction?---As a language of instruction, but it doesn’t preclude Auslan being used in the child’s program. English would just continue as language of instruction.’

154 If Ms Best’s evidence were accepted, then Education Queensland has not complied with its own policy.

155 Ms Best was a most unimpressive witness. She was garrulous. She did not listen to questions. She did not answer questions. She made speeches on topics which were mainly irrelevant.

156 In its final submissions, the respondent has said that Ms Best was mistaken to urge that any other policy existed as regards a language of instruction by signing in the sense of a promulgated policy.

157 In fact, by maintaining that CS-11 allowed for the policy which she said it did, had the potential to do serious damage to the respondent’s own case. If the policy in CS-11 was to provide Auslan as the language of instruction, then Education Queensland has failed to comply with its own policy.

158 It is difficult to conceive that the person who has the ultimate responsibility for the curriculum for deaf children could be mistaken about Education Queensland’s own policy. That is what Education Queensland urged. It said that I should find that the witness that was called to prove the policy did not understand it.

159 There are other aspects of her evidence which were equally unsatisfactory. Fortunately, from the respondent’s point of view, Ms Best was such an unimpressive witness that her evidence cannot be accepted and, as a result, the damage which she did to her own case is avoided. To avoid misunderstanding, I accept none of her evidence.

160 Mr McAlpine is the Senior Educator on the Sunshine Coast. He said his understanding of the policy contained in CS-11 was that it did provide for the use of Auslan. During cross-examination, Mr McAlpine was shown a letter which he had written on 13 March 2002 to Tiahna’s parents which was in the following terms:

‘Dear Ms Smith and Mr Hurst

Thank you for your emails of 1 February and 8 March 2002 requesting that Auslan be included in Education Queensland’s policy for the language of instruction for deaf and hearing impaired students requiring manual communication. I sincerely apologise for the delay in responding but I had intended to discuss this matter at our proposed meeting on 5 March 2002, which, on legal advice, you chose to cancel.

Nambour District currently operates within the statewide policy which states that:

· English is the lanauge of instruction in all Queensland schools.

· Signed English is a manual representation of English, using a sign or fingerspelt pattern to express English syntax and morphology.

· For those deaf and hearing impaired students requiring a signed component, Signed English is used as the method of instruction to develop communication and literacy skills.

· Education Queensland’s Total Communication philosophy ensures that deaf and hearing impaired students across the state have equal access to an appropriate educational program and a consistent communication approach.

Having given consideration to Tiahna’s case for Auslan instruction, I regret to advise that Nambour District is unable to offer this option as it falls outside the policy. We consider that Signed English is the most appropriate method of instruction. However, I invite you to provide any research you may have gathered or argument that gives support to a change in this position.

I am advised that a representative working party is to be established to coordinate programs and services to deaf and hearing impaired students in Queensland. This working party will examine policy issues. Please feel free to contact Mr Barry Skinner, Manager, Low Incidence Unit (Ph: 3237 9991) to obtain further information on this working party.

In addition, Mr Norm Armstrong, Principal Education Officer, Student Services, can be contacted on 5470 8913 to discuss any concerns you have regarding educational support for Tiahna. I trust this information clarifies the situation for you.’

161 That letter states, unequivocally, that Auslan instruction falls outside Education Queensland’s policy and that ‘Signed English is the most appropriate method of instruction’. That letter was written after consultation with Mr Skinner and with Education Queensland’s legal adviser. He said that was his understanding when the letter was written. The Nambour District did not offer Auslan instruction for deaf children. It was not offered because Mr McAlpine thought the instruction was outside the guideline. He said his understanding was corrected by a memorandum he received from Mr Walsh, the Director of the Inclusive Education Branch, Curriculum Directorate in or about February/March 2003. In that memorandum, after referring to par 2.13 to which I have already referred, Mr Walsh wrote:

‘4. In paragraph 2.7, the policy also states that “Aspects of auditory-verbal or bilingual-bicultural programs in educational settings may be included in a Total Communication philosophy, e.g. auditory learning techniques, deaf studies or deaf role models within schools. Such aspects must be enunciated within the student’s Individual Education Plan” and in paragraph 1.7 states “An Alternative program is one designed for a student whose curriculum needs are not able to be met within the regular offerings of the local school. Such a program is negotiated and documented for an individual student through the Individual Education Plan (IEP) process, and may be delivered in a special education facility, or primary or secondary school.”

5. The policy has been generally interpreted within schools and districts as requiring education programs for deaf/hearing impaired students to only use one system of signing – Signed English. However, the policy provides sufficient flexibility to ensure that the communication and language needs of the student are maximised. It is the Inclusive Education Branch’s interpretation of the policy that if the use of Auslan would enhance the student’s educational programs then it needs to be documented within the student’s individual education plan and would be consistent with the policy.

…

7. Please note the information contained in this memorandum indicating that the use of Auslan for deaf/hearing impaired students is consistent with the Department of Education Manual policy CS-11: Total Communication for Deaf/Hearing Impaired.’

162 Mr McAlpine said that that memorandum corrected his misunderstanding and, thereafter, he was of the view that CS-11 provided for the use of Auslan. Thereafter, he instructed teachers within his area the correct understanding of the policy. He said that Auslan was not offered prior to March 2003 because of his misunderstanding of the policy in CS-11.

163 Mr McAlpine was a most uncomfortable witness. I gained the very strong impression that he did not believe that aspect of his evidence but he thought that he needed to say it to advance Education Queensland’s case. I also got the impression that he knew that I did not believe him.

164 Again, if it was Education Queensland’s policy that Auslan should be provided if it would enhance a student’s education outcome, then Education Queensland has failed to comply with its own policy.

165 It occurred to Mr McAlpine, whilst he was giving evidence, that his evidence was, in fact, quite unhelpful to Education Queensland’s case and he became even more uncomfortable.

166 The respondent has urged in its final submissions:

‘Mr McAlpine’s contention that he had told or caused to be [sic] teachers in his district about any change to or error in the policy, as regards the language of instruction by signing, was uncompelling and runs counter to a plain and widespread and enduring understanding amongst the teachers to the contrary, which there is no good reason to doubt.’

167 The only two people who believe that CS-11 allowed for the use of Auslan as a method of instruction outside the bilingual-bicultural program were Ms Best and Mr McAlpine.

168 I reject their evidence. They had a complete misunderstanding of Education Queensland’s own policy.

BEN’S CASE

169 Ben’s mother is his next friend. Her affidavits were read and she was cross-examined. Nothing which I am about to say is meant by way of criticism of Ben, his parents or his siblings.

170 His case is that the standard of teaching has been poor and, as a result, he has suffered humiliation, anxiety, stress, social dislocation, educational disadvantage, cognitive delay, permanent cognitive damage and future economic loss: see par 39 of his Statement of Claim.

171 As I have already said, Mrs Devlin and her husband have five children, Michael born in 1980, Jaina in 1984, David in 1988, Matt in 1991 and Ben. They have lived in the same house for 16 years. It is a half an hour’s drive from Ben’s school. When Ben started school Mrs Devlin also enrolled David and Matt so that Ben would have his brothers’ company. Michael, who is 13 years older than Ben, was then at High School. Jaina was at a private school. Mrs Devlin used to drive Jaina and the three younger boys to school. Mr Devlin is a construction worker or, more particularly, a form worker. He works long hours, usually leaving home before light, and returning late in the evening at 8 or 9 o’clock. He works six days a week, although on Saturdays he finishes at 3 or 4 o’clock in the afternoon.

172 Ben’s parents do not only have obligations to him. They also have the responsibility of raising four other children. Because of where they live, they both have to spend a lot of time travelling; Mrs Devlin to transport children to and from schools; and Mr Devlin to work.

173 Mrs Devlin had had no contact with deaf people prior to Ben’s birth and, thus, no experience in communicating with deaf people. No one in her family was deaf. She did not know anyone who was deaf. She had not read anything about the subject.

174 I am sure Mrs Devlin was quite devastated when she was advised of Ben’s impairment, which was not diagnosed until 25 August 1994 when he was 16 months old. She did not know how deaf people functioned. She assumed that when Ben got his hearing aids he would function like other people.

175 Ben has undertaken a screening audiometry which ‘indicates the presence of profound predominately sensory-neural bilateral hearing loss’.

176 Ben does have some residual hearing which can be amplified with the use of hearing aids. An audiologist (Mr Morris) said that ‘Aided threshold testing indicates that Benjamin has access to all but the very softest speech sounds in ideal listening conditions at the distance of 1 metre from the speaker’ and ‘His aided thresholds indicate that all but the softest speech sounds should be available to him whilst aided’.

177 Because of family circumstances, Mrs Devlin has had the responsibility of rearing five children, one of whom was profoundly deaf, in circumstances where she was quite inexperienced in dealing with deaf people.

178 The delay in Ben’s diagnosis meant that Ben got no assistance in communication until he was more than 16 months old. At that time, Ms Horn became his AVT. There is a dispute between Ms Horn and Mrs Devlin as to Mrs Devlin’s aspirations for Ben. Ms Horn said that Mrs Devlin instructed her in 1995 that she wanted Ben to be as oral as possible. She said that Mrs Devlin told her that she wanted Ben to be able to speak rather than sign. She wanted an oral program of instruction. Mrs Devlin, on the other hand, said that she relied upon Ms Horn’s advice.

179 Ms Horn exhibited a contemporaneous report dated 9 March 1999 in which she said that Mrs Devlin ‘approached the Department of Education and requested support for an oral program’. Ben was then nearly 6 years of age. There was no reason for Ms Horn to write that at that time if it were not true. There was no dispute between Mrs Devlin and Education Queensland at that time. In my opinion, that memorandum accurately sets out the parties’ position. I accept the evidence of Ms Horn in this regard. I am satisfied that Mrs Devlin believed that Ben could become oral with the assistance of hearing aids. She wanted him to be oral and speak in English.

180 Mrs Devlin was motivated by the best of intentions. She wanted the best for Ben. She did not want him to be any different from her other children. It was for those reasons that she instructed Ms Horn to make Ben as oral as possible. I therefore find that Ben was commenced on an oral program at the insistence of Mrs Devlin.

181 Ben’s father and siblings also had no experience with profoundly deaf people. Michael and Jaina have had little to do with Ben. They cannot communicate in any sign language. David has developed some signing skills but I think David and Matt mainly communicated with Ben by gesture. Mr Devlin had no signing skills when Ben started school. Indeed, neither did Ben. Mrs Devlin said that her husband knew some signs. That might be right but he cannot communicate in any sign language. Ben lives in a home environment where he cannot communicate with his family. That has been a tremendous handicap to him.

182 None of the family, except Mrs Devlin, can communicate in Auslan. Mrs Devlin did a course in Auslan in 2002. She is not fluent but she can use it and is getting better. I will come to this in due course and in more detail but there is no evidence before me that Ben has anyone outside his school, apart perhaps from his mother, with whom he can communicate.

183 Because Mrs Devlin had wanted Ben to become oral he was not introduced to signing until about March 1997 when he was already four years of age. The late diagnosis and his inability to communicate in signing meant that he had no language development when he commenced school. It is self-evident that a deaf child needs early intervention to develop language and communication skills, and any delay in that intervention will impede a child’s later performance at school.

184 When Ben started school his mother knew no Signed English. She went to classes in 1998 and 1999 and she acquired some knowledge of Signed English. However, the signing education sessions did not provide her with sufficient vocabulary to communicate with Ben using Signed English. Her skills have no doubt improved since that time but not to any great extent. I think it not unfair to find that Mrs Devlin’s skills in Signed English only allow for the most basic communication with Ben.

185 In 1996 the Noosaville State School opened with Mr John Clifford as its first Principal. In 1997 a Special Education Development Class (SEDC) for children aged 0 to 6 years was opened. In the same year the school also opened a Special Education Class (SEC) for children aged 6 to 12 years.

186 In 2000, the SEDC and SEC were combined and renamed the Special Education Unit (SEU) which ran two programmes; an early special education programme which was formerly the class previously described as SEDC; and a school aid programme which was formerly the class referred to as SEC. For ease of reference, I will continue to describe the two programmes as SEDC and SEC.

187 A small minority of the students at the Noosaville State School require special education. Of those, some are hearing impaired. Of those who are hearing impaired, some are profoundly deaf. Those who require special education are accommodated within the SEDC or SEC programmes according to their age.

188 In 1997, when Ben was aged four, Rosemary Horn, Ben’s AVT, suggested that Ben attend the Noosaville SEDC for a period of time each week and, on 21 April 1997, Ben attended his first session.

189 Ben could not sign when he commenced at the SEDC. As Mrs Devonshire, the Head of Special Education Services said in evidence, which I accept, Ben had limited or very poor communication skills. He remained enrolled for the whole of that year. In November 1997 Mrs Devlin was advised that Ben would be able to attend both the Noosaville Pre-School and the attached Special Education Centre in the 1998 school year.

190 Mrs Devlin claims Mr Clifford, the school’s Principal, told her when Ben first enrolled in the Noosaville Primary School, that Ben’s teachers would learn Signed English before commencing to teach him.

191 Mr Clifford said in evidence that he cannot recall what he may or may not have said to Mrs Devlin at the time he enrolled Ben in 1998. Indeed, he cannot recall enrolling Ben. However, he says he does not believe that he would have said what was attributed to him. He might have said words to the effect of ‘Signed English classes will be made available to Ben’s Teachers’. He does not believe, however, that he would have made the statement that has been attributed to him for the following reasons:

‘(i) the teachers’ participation in the signing classes was voluntary;

(ii) Students and teachers are allocated to classes for the following year shortly before the end of the school year. There is insufficient time for a teacher to learn Signed English before the next school year starts.

(iii) at the time teachers are made aware of the list of students who are allocated to their class for the following year, the teachers may not necessarily have met all the students who are to be placed in their class and may not necessarily be aware of the disabilities and special needs of the students who are to attend their class.’

192 There is not much difference between what Mrs Devlin claimed Mr Clifford said and what Mr Clifford admitted he might have said.

193 It stands to reason that Ben’s teachers would have to learn Signed English prior to teaching him in Signed English.

194 I accept Mrs Devlin’s evidence in that regard.

195 Ben commenced at the school’s pre-school on 4 February 1998 and had a dual placement. He attended the school’s pre-school on Thursdays and Fridays from 9.00 am to 3.00 pm. His pre-school teacher was Michelle Ridge. There were approximately 25 children in Ms Ridge’s class in 1998. He also attended the SEDC’s pre-school on Monday and Tuesday under the supervision of Ms Beth Devonshire who, as I have already noted, was a Special Education teacher and the Head of Special Education Services at the school. He did not attend the pre-school or the SEDC at all on Wednesdays.

196 Up until 1998 Ben received oral communication in accordance with the wishes expressed by Mrs Devlin in 1995. In 1998 Ms Horn suggested that Ben’s communication change to total communication, including Signed English. Mrs Devlin agreed because it appeared to her that Ben was not progressing and she was ‘happy to try something different’.

197 There can be no criticism of the respondent’s conduct to this point of time. An attempt had been made to teach Ben to be oral. That was what his mother wanted. It did not succeed. No one can be criticised for wanting that result or trying to achieve it. However, the result was most unfortunate. When Ben commenced pre-school he could not communicate with his parents, siblings, teachers, or fellow students. He had no Signed English, nor did his parents or siblings. He had very little communication with his parents, especially his father and his siblings. He could not hear. His hearing aids were of marginal use only. Ben was a student without a language and without the ability to communicate except by gesture.

198 In 1998, Ben’s teacher at the SEDC was Beth Devonshire. She had begun to learn Signed English in 1997. In 1998 she was competent in Signed English. Ben’s AVT in that year was Rosemary Horn who was also competent in Signed English. Neither of those women was able to communicate in Auslan.

199 Ben’s teacher in the mainstream class was not competent in Signed English or in Auslan. Michelle Ridge was familiar with a form of communication known as ‘Makaton’ which is used to communicate with intellectually disabled children. Ms Ridge commenced to receive instruction at this time in Signed English. Ben had two teacher’s aides in the SEDC in 1998. Ms Campbell, a teacher’s aide in the SEDC, had only just started to learn Signed English in that year. Her proficiency has improved. In 1998 she said she had sufficient level of skill to sign to Ben. Others said she was proficient. I think, however, in 1998 she had only basic skills in Signed English.

200 Ms Ogg had commenced employment in 1997. She did not provide an affidavit. Ms Devonshire said that Ms Ogg was committed to learning Signed English and that they both attended informal sessions with Ms Horn in 1997 and 1998. They practised signing to each other. Ms Devonshire said that Ms Ogg’s Signed English skills in 1998 were commensurate with Ben’s level of communication.

201 During 1998, Ben underwent a confidential guidance report which was conducted by Karen MacDonald. On 8 August 1998, that report was provided to Mr Clifford.

202 Relevantly, Ms MacDonald reported:

‘Results:

Results indicate an above average non-verbal intelligence score for Ben with a quotient of 111 and a percentile rank of 77 (SEM 4.5).

Summary:

Ben is a 5 year old boy who appears to possess average to above average cognitive ability. This is evident in his ability to cope with daily routines and his above average score on the TONI-2.’

203 ‘TONI-2’ is the test of non-verbal intelligence which is a language-free measure of abstract/figural problem solving which is often utilised to cognitively assess children with hearing impairment. I accept that that assessment is accurate.

204 Mrs Devlin claims that at the conclusion of the 1998 school year she had become concerned regarding Ben’s progress, because he was unable to write and recognise his full name. In that regard he was behind the progress made by his older siblings.

205 Ms Ridge, on the other hand, says that she has no recollection of Mrs Devlin ever complaining to her about Ben’s progress.

206 Whilst I am satisfied that Mrs Devlin was concerned at the end of the 1998 school year about Ben's progress, I am not prepared to find that she complained to anyone in authority in regard to that matter.

207 In 1999, Ben commenced at the primary school. He was then aged nearly six years. He continued to undergo special education. He attended the SEDC from 9.00 am to 12.45 pm on each day. He then attended regular classroom sessions from 1.30 pm to 2.45 pm on each day.

208 Ben’s SEDC teacher was Colleen Flynn, who was competent in Signed English but not able to communicate in Auslan. Ms Flynn had been a teacher of the deaf since 1984. She had a Diploma of Teaching Primary and Special Schools (majoring in Hearing Impairment) from the Brisbane College of Advanced Education. She taught Signed English to other teachers and to non-hearing impaired students.

209 The teacher’s aide in the unit was Debbie Campbell, who had some competency in Signed English but not Auslan. She started learning Signed English in 1998. She assisted Ms Flynn in the signing classes. Ben’s teacher in the regular classroom sessions in the primary school was Rebecca Hutton, who had no experience or knowledge of either Signed English or Auslan.

210 No AVT was assigned to Ben in this year. There was some dispute about Ben’s entitlement to an AVT after he commenced school. The respondent’s witnesses suggested that the respondent’s policy was to withdraw AVT assistance when a child began school.

211 Ms Horn said that AVT services usually cease to be provided to a child when the child is placed in a special education facility. In Ben’s case, however, he continued to receive AVT support from her for two years after he had been placed at the Noosaville SEDC. However, when he started school at the age of five years, Ms Horn ceased providing AVT services to him in accordance with Education Queensland’s policy.

212 I should mention that Ms Best said that was not the respondent’s policy. Ms Best said that AVTs were provided to children throughout their education from Year 1 to Year 12 ‘and their role is to support the classroom teacher to make sure their programs and practices are the least restrictive possible for the child to engage in a curriculum’.

213 She was pressed on the differences between her evidence and Ms Horn’s evidence was put to her directly, but she was not prepared to resile from her statement that AVTs were available to students to Year 12.

214 Ms Best’s evidence in this regard was entirely unconvincing and, in my opinion, showed her to be quite unfamiliar with Education Queensland’s own policies.

215 I reject her evidence and accept Ms Horn’s evidence in this regard.

216 In accordance with Education Queensland’s own policy, no AVT was provided to Ben after he started school.

217 Of course, if I had accepted Ms Best’s evidence, then Education Queensland would have breached its own policy by failing to provide an AVT to Ben after he started school.

218 Mrs Devlin said that she became increasingly concerned in 1999 about Ben's progress. She said that in about the middle of 1999 she attended Ben's music class. She noticed he was sitting by himself doing nothing and looking bored. She said neither the teacher's aide nor the teacher made any attempt to include him in the activities. She concluded that it was a waste of time Ben being in the class under the circumstances which she observed. She spoke to the Deputy Principal, Gary Ogg, and Colleen Flynn, Ben’s SEDC teacher, informing them that she was not happy with the situation in the music class.

219 Mrs Devlin said in her affidavit at par 43:

‘Because of my serious concerns, I repeatedly asked Colleen Flynn if I could sit in on some classes, particularly Maths, as I was having trouble explaining things to Ben when he did his homework and I felt it might be useful observing how she explained concepts to Ben. I gained the impression that I was not welcome in the classroom. I felt like this whenever I made a request to attend the classroom.’

220 In October 1999 Mrs Devlin said she was told by Mr Clifford that she was not welcome inside the classroom during the day without first making arrangements or an appointment to be present. She said that conversation occurred in front of a classroom full of teachers. Mrs Devlin said she believed Mr Clifford took that attitude because of her concerns regarding Ben's music lessons.

221 Mr Clifford said that he had no recollection of saying to Mrs Devlin what was attributed to him by her. However, it was school policy that parents were not to interrupt teachers during teaching time, and if Mrs Devlin had not respected that policy he would have spoken to her about the matter. He said, however, whilst he might have spoken to Mrs Devlin, he would not have done so in the presence of a classroom full of teachers.

222 I think it is likely that Mr Clifford did speak to Mrs Devlin about her attending Ben's classroom in circumstances where she had not first made arrangements or an appointment to be present. I think it is likely he spoke to her in the terms to which she deposed. However, I think it is unlikely that Mr Clifford would have spoken to her in the presence of a classroom full of teachers.

223 I find that Mr Clifford said what Mrs Devlin claims he said, but not in the presence of other teaching staff.

224 I also find that he said what he said because he wanted to reinforce the school policy with Mrs Devlin which, in my opinion, was a reasonable one.

225 In the year 2000 Ben attended the Noosaville Primary School from Monday to Friday. He attended the SEC from 9.15 am until 12.45 pm on each day, and attend his ordinary class from 1.30 pm to 2.45 pm each day.

226 The SEDC teacher was again Colleen Flynn, and the teacher’s aide in that unit was Adrienne Prentice. Ms Prentice first worked with deaf students in 1972. She holds a Sydney Teachers College Certificate in Teaching the Deaf which she acquired in 1972. She had been a part-time consultant for students with hearing impairments at Newcastle TAFE College. She had been employed in the New South Wales Department of Education and Training as a Hearing Support Teacher. Ms Prentice had some knowledge of Signed English but not Auslan. She had not used her Signed English for about eight years prior to starting at the school. She spent several hours each week practising Signed English. In due course, she took over Ms Flynn’s classes. She taught classes once per week. I find that she was competent in Signed English.

227 Ben’s regular classroom teacher was Laura Cox, who also had some knowledge of Signed English, although I think in her case it was at a basic level.

228 Both Ben's SEC teachers and regular classroom teachers wore an FM unit. An FM unit is used as an aid to hearing. It does not amplify sound but operates to concentrate the sound to the deaf person. It allows the wearer of the FM unit to walk away from the deaf person without reducing the concentration of the sound made by the wearer of the unit. It has the effect of putting the wearer of the unit within a meter of the deaf person, even though that person is at a significantly greater distance away. Of course, the FM unit only works if the child wears his equipment.

229 Mrs Devlin's evidence was that in the year 2000 she had two meetings with the Principal, Mr Clifford, the first in April and the second in November, when she raised with him her concerns about Ben's progress. On the first occasion she said that Adrienne Prentice was present. She said that Ms Prentice told her and her husband, who was also present, how well Ben was achieving, and that he could write his first and last name and could tell the time. Mrs Devlin said she knew that to be incorrect.

230 Mrs Devlin said that at the second meeting Mr Clifford told both her and her husband that Ben would be going into Dan Taylor's class in the year 2001. Mr Clifford told them that Dan was a very nice person and popular with children, and that Ben would have a good year with him. He told them that Dan was looking forward to having Ben in his class and that Dan had always been interested in deafness, as he had previously had a deaf friend at school.

231 Mr Clifford has no recollection of either meeting. He said, however, he was not aware that Mr Taylor had an interest in deafness, nor was he aware that Mr Taylor previously had a friend at school who was deaf.

232 There is no evidence to support a finding that there was a lack of fluency and quality in the Signed English used by the appropriate teachers. The fluency and quality must be measured against the abilities of the person with whom they are communicating. In Ben’s case he came to the school with no Signed English and, of course, no Auslan.

233 Again in 2001, Ben attended five days a week at the Noosaville Primary School and attended the SEDC during the same hours, and attended ordinary classes for the same hours as the previous year.

234 In 2001 there were two deaf children enrolled at the Noosaville State School, Ben and G. In that year, Ben’s SEDC teacher from Monday to Thursday was Alison Mosely, who was competent in Signed English but, in 2001, she had no knowledge of Auslan. Ms Mosely had commenced at the Noosaville State School as a Special Education class teacher in January 2001 working Monday to Thursday. She remained at the school until the end of Semester 1 of 2003 when she took leave of absence.

235 His teacher at the SEDC on Fridays was Laurie Ludvigen, who had no skills or experience in Signed English or Auslan, although apparently she had done a six-week course in Auslan. In the third term Colleen Cooke replaced Ms Ludvigen. Ms Cooke had some knowledge of Signed English but had no knowledge of Auslan. Ms Cooke spoke highly of Ms Mosely’s skills as a Special Education teacher. She also said that Ms Mosely worked extremely hard to expand Ben’s use of language. I accept Ms Cooke’s evidence of her observations of Ms Mosely’s abilities and efforts.

236 Ms Cooke said that Ben had difficulties in communicating. He found spelling difficult. He had difficulty memorising words. Ben could lip read. She said that, in her observations, Mrs Devlin did not sign to Ben. She observed that she would talk to him.

237 Debbie Campbell was again the SEDC teacher’s aide. She worked from Monday to Thursday. She was competent in Signed English but had no knowledge of Auslan.

238 Ms Mosely provided an affidavit, sworn 2 March 2004, in support of the respondent’s case, and she was cross-examined on that affidavit. Ms Mosely was an impressive witness. She was careful in her answers. She struck me as a reliable and credible witness. I accept her evidence. Ms Mosely is a registered Special Education teacher. She holds a Bachelor of Education (Special Education – Hearing Impairment) from Griffith University which was awarded in 1994. In 1999 she obtained a Level 1 Auslan Signing Certificate from Southbank TAFE College, Brisbane.

239 Her employment with Education Queensland in 1995 was as an AVT (Hearing Impairment), Rockhampton. Between January 1998 and December 2000 she was absent from her employment pursuing a sporting career.

240 Prior to starting at the Noosaville SEDC in July 2001, she had had approximately two and a half years experience with students with hearing impairments.

241 Whilst studying for her university degree, she was required to submit to various forms of assessment in her proficiency in Signed English. She was required to pass a practical component in Signed English in her degree. She was qualified in Signed English, obtaining those qualifications at the same time as she completed her degree.

242 Whilst she worked as an AVT in Rockhampton, she also attended Signed English classes. In 1998 she enrolled at the Southbank TAFE to complete her Level 1 Certificate course in Auslan.

243 I find, there being no evidence to the contrary, that Ms Mosely was competent in Signed English.

244 Ms Mosely deposed in her affidavit that Signed English was a language of instruction that she used when educating deaf students enrolled in state schools in Queensland. She said of Auslan:

‘37. Auslan was not a mode of communication that I used. A lot of the signs between Signed English and Auslan overlap. I did not use the language Auslan to communicate with the children with hearing impairments but I would occasionally use an Auslan sign for a word in a Signed English sentence when the Signed English vocabulary did not include that word.’

245 It is difficult to know Ms Mosely’s level of competency in Auslan as at 2001. In 2003 she completed two eight-week Auslan courses (Levels 1 and 2) conducted by the Queensland Deaf Society Incorporated in Maroochydore. However, whether or not she is competent in Auslan is not relevant. Ben’s case is that she was not competent in Signed English. I reject that contention.

246 Ms Mosely said that when she commenced teaching Ben he had a very limited ability to communicate. He had a very unique and idiosyncratic signing style with which she was not familiar. She said that in the SEDC classes the students were required to make a short speech in the nature of a ‘show and tell’ talk. She said at par 127 of her affidavit:

‘During these talks, Ben displayed a limited ability to communicate. He would communicate by mime, gesture and verbalising in monosyllables. He did not have the ability to structure his sentences and used only a few recognisable words. I also found that Ben was not responsive when I asked him a question about his talk. He would frequently ignore the question or would simply continue with his story and look at me with a blank expression.’

247 I have already mentioned Ben’s family’s difficulties in communicating with him. When Ben entered Ms Mosely’s class in 2001 he was seven and a half years old. Except for his mother and one sibling who could communicate with him in a rudimentary way, Ben’s family could not communicate with him in any structured way. His family’s inability to communicate with him, either in Signed English or Auslan has had a significant impact upon his ability to communicate generally.

248 Mrs Devlin told Ms Mosely in answer to Ms Mosely’s question why Mrs Devlin was the only signer in the family:

‘Yes I know this is the big one. John won’t learn, David came to Colleen F’s classes for a year and Matt went too, although he was very young then. Ben is @ a stage of asking lots of Q’s [questions] and wanting to know about everything. He is bugging his father about things on TV all the time.’

249 Ms Mosely attempted to persuade Mrs Devlin to come to Ms Mosely’s signing classes, but Mrs Devlin never attended.

250 His classroom teacher was Mr Dan Taylor. In that year Ms Robyn Grover assisted Mr Taylor as his teacher’s aide for two hours per week. Mr Taylor had no skills in Signed English prior to the year 2001. In that year, however, Ms Mosely conducted weekly signing sessions which were attended by SEDC and classroom teachers, teacher aides, interested parents and staff members.

251 Mr Taylor's evidence was that he attended at least a half a dozen of Ms Mosely’s classes. He said he learnt some basic signs so that he could sign some conversational speech and sign some high frequency words.

252 I accept Mr Taylor's evidence that he attended some signing classes in 2001. I do not think, however, that he ever became highly proficient in Signed English. To be fair to him, he does not claim a high degree of proficiency. I think at best he may have learnt a few signs. He was cross-examined on his present state of knowledge of signing, and I think that cross-examination established quite clearly that he now has almost no signing skills. He may have had a very low level of signing skills when Ben was his student.

253 Ms Mosely says in her affidavit:

‘72. The primary school classroom teachers were not required to know Signed English. This is because of the large size of the primary school classes and the fact that on most occasions that Ben was in the primary school class, he would receive in-class support. The in-class support was provided by a Special Education Teacher Aide or Special Education Teacher.’

254 Ben attended his Grade 3 class from 8.45 am to 9.15 am Monday to Friday. During that time Mr Taylor would call the roll and then the class would perform reading activities in small groups, pairs or individually. When he called the roll he signed Ben’s initials and Ben would respond in Signed English.

255 During this half hour no Special Education teacher or teacher's aide was present. Mr Taylor did not think there was any need for any Special Education teacher or teacher's aide during this time because most of the time was taken with reading, which Ben could do without support.

256 At 9.15 am each day Ben would join the SEDC unit, where he came under the direct supervision of Ms Mosely who, as I have said, was assisted by Ms Campbell. Friday was an exception because Ms Mosely did not work on Fridays. On those days he was supervised by Mr Ludvigen in semester 1 and Ms Cooke in semester 2.

257 Whilst Ben was at the SEDC unit, the rest of his class in Grade 3 would undertake literacy and numeracy studies. Thus it was that Ben did not receive any instruction or undertake any learning in literacy or numeracy in the company of his hearing peers. He received all his instruction in literacy and numeracy in the SEDC unit.

258 That regime has been the same in all years. Ben has received all his tuition in literacy and numeracy from Special Education teachers. I will refer in some detail to his educational achievements in due course, but at this stage it is worth noting that Ben has fallen considerably behind his hearing peers in all regards, but in particular in literacy and numeracy. It must follow that the Special Education instruction which has been provided has not been able to maintain his level of education with his hearing peers. His failure to progress is not due to any intellectual defect. He has, as Ms McDonald’s report of 8 August 1998 shows, average or above average cognitive ability.

259 Ben returned to his Grade 3 class at 1.30 pm on each day. In the afternoon the class would study art and craft, music, health and physical education, studies of society, science and technology, including computer skills.

260 During the afternoon Ben was supported in the regular classroom by his SEDC teacher or teacher's aide on a one-on-one basis.

261 The SEDC teacher or teacher’s aide stood at the front of the classroom and would sign to Ben in Signed English as Mr Taylor provided oral instruction to the rest of the class. Sometimes they sat next to Ben. Usually, if Ben had a question, he asked his Special Education teacher or teacher's aide, rather than Mr Taylor.

262 Mr Taylor said that Ben became more confident as the year progressed and a better rapport developed between them.

263 Ms Mosely said that by 2001 Ben was quite competent in lip reading. That is consistent with Ms Cooke’s evidence.

264 Mrs Devlin said that, because of her concerns about Ben’s lack of progress, she spoke to Mr Taylor but he told her that some people learn a little slower than others. She spoke to him again in the second term and asked him whether Mr Taylor had learned Signed English, but he said that it was a bit late opening the gate once the horse had bolted. Mr Taylor denied making such a statement.

265 Mr Taylor was cross-examined on his affidavit. However, I am not able to make any findings as to whether these statements were made, but that is of no moment. Mr Taylor presented to me as a person who might answer a question flippantly. However, it was not suggested that Mr Taylor had anything but Ben’s best interests in mind when he acted as Ben’s mainstream teacher. Therefore, it does not matter, except for a question of sensitivity, if he made the comments or not.

266 In August 2001, because she believed that Mr Taylor was relying on one of Ben’s classmates to interpret classroom instructions to Ben, Mrs Devlin complained to the school Principal. There was a child in Ben's class, G, who was a very competent signer, and who had become a friend of Ben's prior to entering the Grade 3 class. The school decided that G should continue in the same class as Ben because of that friendship and because they could communicate in Signed English.

267 Mr Taylor encouraged G to communicate with Ben in Signed English, and G was keen to do so.

268 Mrs Devlin said that Mr Clifford dismissed her complaint saying that, in his opinion, there was nothing wrong with the situation pertaining in the classroom. Mr Clifford has no recollection of the complaint. Mr Taylor said he was not spoken to by Mr Clifford about that matter.

269 I accept Mr Taylor's evidence on this topic.

270 I am satisfied that the school deliberately placed G and Ben together in the same class, because they could communicate with each other in Signed English. I also accept that Mr Taylor encouraged G to communicate with Ben in Signed English and, indeed, that it was in Ben’s best interests.

271 I am unable to find whether Mrs Devlin made a complaint about the matter to Mr Clifford but, in any event, because I think such a complaint would be unfounded, such a finding is not necessary.

272 Mrs Devlin said she observed the classroom from time to time during this year and she noticed that Ben appeared to be sitting away from the other children not comprehending what was going on. She said the classroom was located in a noisy part of the school, which interfered with Ben’s ability to hear, even with the aid of hearing aids and the FM unit.

273 She also said that she noticed that Alison Mosely, the SEDC teacher, did not use the FM unit in class with Ben.

274 During 2001, Ben had instruction in the SEDC unit, not only from Alison Mosely but also on Fridays from Ms Cooke.

275 Ms Cooke is a registered Special Education teacher who first began teaching the deaf in 1977. She has continued as a teacher, mainly teaching the deaf since that time. She holds a Diploma in Teaching and a Bachelor of Education awarded by the Griffith University.

276 In about mid 2001 she began teaching with the unit on Fridays.

277 It is not entirely clear what Ms Cooke’s level of proficiency was in Signed English. Of course, the respondent would say that the evidence is unclear because, until Ben’s counsel sought the amendment to the pleadings after the close of the respondent’s case, each of the teachers’ and teacher’s aides’ level of proficiency in Signed English was not in issue.

278 However, as I have allowed the amendment, I must consider the state of the evidence on this topic.

279 There is no doubt, in my opinion, that Ms Cooke could use Signed English. Ms Ludvigsen said that Ms Cooke was proficient in Signed English. She also said that Ms Cooke’s signing ability was more than adequate for primary school children. Ms Mosely, in her evidence, said that Ms Cooke was able to communicate effectively with Ben and with the other hearing impaired students. She said that Ms Cooke was reasonably proficient.

280 There is no evidence to the contrary and as the onus lies upon Ben to establish that Ms Cooke was not proficient that onus has not been discharged.

281 I find that Ms Cooke was reasonably proficient in the use of Signed English and able to communicate effectively with primary school children by that medium.

282 Mrs Portch began as a casual teacher’s aide in the Noosaville SEDC in January 2001. She is well qualified as a teacher’s aide. Again, it is not entirely clear what her level of proficiency in Signed English was. She said in her affidavit that she volunteered to attend Signed English classes in 2001 ‘to develop and upgrade my Signed English skills’. She continued to attend those classes off and on through 2001 until 2003. She also said that she worked voluntarily with Ben to practise her Signed English skills. She was not able to say how many classes she went to. Nor was she able to say how many signs she could use in 2001.

283 Ms Mosely stated in her affidavit that Mrs Portch was able to sign to a level that was commensurate with Ben’s communication ability. She described Mrs Portch as a dedicated, hard working teacher’s aide who spent many hours of her own time practising signs and improving her vocabulary.

284 As I have already said, Ms Mosely was a very impressive witness and I accept all of her evidence but, in particular, I accept her evidence in relation to Mrs Portch’s skills.

285 I find that Mrs Portch had sufficient skills to communicate with and teach Ben in Signed English in 2001.

286 Another teacher’s aide, Valda Lumb, worked with Ben during 2001. She has not provided an affidavit. Ms Mosely described her as a teacher’s aide with two years experience in service training and working with children with hearing impediments. Ms Devonshire said that, in her view, Ms Lumb had sufficient knowledge of Signed English to assist Ben in his tasks. There is no other evidence in relation to Ms Lumb’s signing skills.

287 In my opinion, there is no evidence, upon which I could make a finding that she was not competent or fluent in Signed English, so I decline to make that finding.

288 In the year 2002 Alison Mosely was again Ben’s SEDC teacher on Monday to Thursday. He attended SEDC from 9.30 am to 12.45 pm each day. He attended the mainstream class in the morning from 8.45 am to 9.30 am and in the afternoon from 1.30 pm to 2.45 pm. In that year and the following year, his regular classroom teacher was Venetta Herron. Ms Herron had no skills or experience in Signed English or Auslan, although she did attend some of Ms Mosely’s weekly signing classes. Ms Mosely said in her affidavit:

‘99. Ms Herron attended some of the weekly signing classes which I held at the School. I believe that Ms Herron had only basic Signed English skills. However, primary school classroom teachers are not required to have Signed English skills.’

289 On Fridays, a trainee teacher who also had no knowledge of Signed English or Auslan supervised Ben in the regular classroom.

290 Mrs Devlin said that she complained about the failure of the school to have a Special Education teacher available on Fridays to assist Ben, but she was told there were not enough deaf children in the unit to warrant the employment of a Special Education teacher on Fridays.

291 Mrs Devlin was concerned about the failure of the school to employ a Special Education teacher on Fridays. On 25 January 2002 she was advised in a letter from the school that Ben would be supervised on Friday mornings by Beth Devonshire and in the afternoons by a teacher’s aide, Val Lumb. Mrs Devlin said that both teachers had no more than a rudimentary knowledge of Signed English and no knowledge of Auslan. Mrs Devlin is not the best person to rely upon for observations of other person’s skills in Signed English. In the year 2001 Mrs Devlin herself had only rudimentary skills. Those rudimentary skills do not, in my opinion, allow her to pass an opinion on the skills of other persons where those other persons are in fact more skilful. Whilst I accept her evidence that those women had no Auslan skills, having regard to the findings already made, I reject her evidence in relation to their Signed English skills.

292 On 30 January 2002 Mrs Devlin sought a meeting with the new Principal, Mr Cameron Nobbs. Mr Nobbs was unavailable and Mrs Devlin spoke to Ms Devonshire and Ms Mosely. Mrs Devlin sought to have Ms Debbie Campbell work with Ben. Mrs Devlin thought that Ms Campbell was more experienced than Ms Lumb. Mrs Devlin was advised by Ms Devonshire that she was confident Ms Lumb’s signing skills were adequate, and that what was proposed would be suitable for Ben.

293 Mrs Devlin’s concerns were not assuaged and she telephoned Mr Norm Armstrong, the District Officer, expressing her dissatisfaction about the school policy. Mr Armstrong said that he would arrange a meeting with the Principal to help to achieve a satisfactory outcome. That meeting took place on 31 January 2002. Early in the meeting, Mr Nobbs said ‘I am not familiar with this case as I am new to the school, so I will just observe and let Beth Devonshire do the talking’. Mrs Devlin said that she was not satisfied with Mr Nobb’s approach which she described as unprofessional. I do not agree with that observation. If Mr Nobbs said and did what Mrs Devlin has reported that is not, in my opinion, an unprofessional approach. In any event, Mrs Devlin complained about the proposed arrangements and, in particular, the use of the teacher’s aide on Friday afternoon. She asked again for Ms Campbell, who Mrs Devlin said was more experienced at Signed English to work with Ben, but was told that Ms Campbell was unavailable because she was working with another deaf child.

294 This second meeting also did not satisfy Mrs Devlin and she contacted her State Member of Parliament. The Member was unavailable but her office made contact with the office of the Minister for Education and, in February 2002, a gentleman from the office of the Minister for Education rang Mrs Devlin and told her that he had spoken to Mr Armstrong and, as far as the Department was concerned, Ben was receiving adequate if not more help in the classroom than that to which he was entitled.

295 On 30 May 2002 Mrs Devlin and Ms Smith lodged their complaints with HREOC.

296 I will deal with Ms Smith’s complaint later.

297 Mrs Devlin’s complaint is rather curious. The complaint is said to be made because Education Queensland has ‘denied or limited Benjamin Devlin’s access to a reasonable and appropriate standard of primary school education because he is deaf’.

298 The following points are made:

‘1. Benjamin is currently receiving equivalent of a part-time education.

2. Benjamin’s teachers are not qualified teachers of the deaf.

3. Benjamin’s curriculum does not include a bilingual/bilateral [sic] program.

4. Because Benjamin has been unable to access the services of trained staff on a full-time basis at school his parents have had to pay a private therapist for speech, language and auditory training sessions.’

299 The complaint seeks to have ‘Education Queensland provide full-time teachers within the Noosaville State Primary School, and the SEC, who are fluent in both Auslan and Signed English’. The complaint was accompanied by Mrs Devlin’s statement.

300 In that statement, she says:

‘No bilingual/bicultural program.

At present, the teachers at the SEC only have Signed English skills, and there are no teachers who are fluent in Auslan.

In my opinion, for any educational program to be specially adapted to the needs of deaf children, it must incorporate a bilingual/bicultural program which recognises that Auslan is the natural (and official) language of the deaf.

It is current Education Queensland policy that a Total Communication approach using spoken Signed English be used to teach deaf students in special classes.

There is no policy for the use of Auslan.

However, despite such policy the quality of Signed English used in the majority of cases are poor and would be of little educational benefit to students beyond the pre-school level.’

301 At the time the complaint was made, Mrs Devlin had no familiarity at all with Auslan, nor did her husband or her children, including Ben. Ben was then nine years old. Mrs Devlin had not complained to her son’s teachers about their failure to instruct him in Auslan. The complaint that Education Queensland had not offered Ben instruction in Auslan had not previously been made to anyone in authority.

302 It seems to me that Mrs Devlin can hardly complain of Education Queensland’s failure to offer Ben instruction in Auslan prior to 30 May 2002 when at no stage did she or anyone else on her behalf, or on Ben’s behalf, request instruction of that kind.

303 True it is that Education Queensland did not offer instruction in Auslan, I suppose because of the Total Communication Policy which, as I have already found, did not include Auslan instruction.

304 But that is in a sense beside the point because, as even the most extreme supporters of Auslan accept, Auslan instruction should not be offered without the agreement of the child’s parents.

305 In this case, as I have said, Ben started school without a language. Up until about that time, at the instruction of Mrs Devlin, those with responsibility for his education were trying to make him oral as possible. He started school without any sign language at all. He had no Signed English.

306 As at 30 May 2002 he had some Signed English but no Auslan. As I have noticed above, if he had then been instructed in Auslan, apart from his instructors, there would have been no-one else with whom he could communicate in Auslan.

307 As I have already said, the respondent’s submission was that the applicants can only allege acts of discrimination in proceedings in this Court that took place prior to the date on which the applicants’ respective complaints were lodged with the HREOC on 30 May 2002.

308 However, as I have again already said, there may be evidence, subsequent to 30 May 2002, which might support a finding of discrimination prior to that date.

309 In saying that, I think no evidence subsequent to 30 May 2002 could impact upon the claim for direct discrimination concerning the level of skills of Ben’s teachers prior to 30 May 2002.

310 To avoid any doubt, I reject Ben’s case that his instructors and teachers prior to 30 May 2002 were not qualified to teach him in Signed English. In particular, I reject Ben’s claim that those persons were not sufficiently fluent in Signed English or could not deliver the Signed English with sufficient quality so as to amount to discrimination under s 5 of the Act.

311 However, in case I am wrong about that and the evidence subsequent to 30 May 2002 could impact upon that aspect of Ben’s case, then I should discuss that further evidence and make relevant findings.

312 Of course, some of that evidence is also relevant to Ben’s alternative case of indirect discrimination.

313 In May 2002 Ms Lumb was replaced by Mrs Portch as Ben’s teacher’s aide for Friday afternoons. When Ms Lumb left, the Noosaville Primary School had a limited number of staff with skills in signing. On the first day that Mrs Portch was due to work with Ben, Mrs Devlin went to the class but, by 9.45 am, Mrs Portch had not arrived. Mrs Devlin was later told that Mrs Portch would be working with Ben between 10.00 am to 3.00 pm. She said she had not been given prior notice of that.

314 On 17 June 2002 Ben told his mother that he did not want Mrs Portch to teach him because, he said, ‘I don’t like doing work with Mrs Portch, she signs too slow, doesn’t know what I am saying, I get sick of waiting while she looks in the signing book for words, it’s too noisy. Why can’t Ms Mosely come on Fridays?’

315 I accept that Ben told Mrs Devlin that, but I do not accept that Ben’s criticism of Mrs Portch is correct.

316 For the reasons I have already given, Ben’s Special Education teachers and the aides were sufficiently competent in Signed English to provide Ben with an appropriate education.

317 Again, in 2003 Venetta Herron was Ben’s mainstream teacher. As I have already noticed, Ms Herron had no experience in Signed English prior to 2002. She did attend some classes in 2002. She learned some basic signs in those classes. She did not continue with the signing classes in 2003. Ms Herron was only familiar with a few basic signs in Signed English.

318 Alison Mosely started the year as his SEC teacher. Debbie Campbell also commenced that year as a teacher’s aide in the SEC classes.

319 In February 2003 Mrs Devlin rang the Principal, Mr Nobbs, to tell him that she did not want Mrs Portch working with Ben any more. Mrs Portch was replaced.

320 Ms Mosely said that when she was supporting Ben in his afternoon classes, she would sign to Ben the instructions of his classroom teacher to help him understand what Ben was required to do. She also answered Ben’s questions and served as a communication link between Ben and his classroom teacher/class mates. She changed positions from time to time. Sometimes she stayed close to Ben to allow him to quietly ask questions. At other times she would stand in the front of the class where she could sign to Ben. She changed positions because Ben would lose interest if she merely stood at the front of the class for lengthy periods.

321 Ben was introduced to Auslan for the first time in May 2003. Sue Gosses became Ben’s Auslan interpreter.

322 Ms Mosely left on extended leave in about June 2003 and was replaced by Ms Sandra Wilson, who Mrs Devlin said told her that she was ‘rusty’ on Signed English and had no Auslan experience. The SEC teacher’s aide became Anne Enders. Mrs Devlin’s evidence was that she had been told by both Mrs Wilson and Mrs Enders that ‘there has been a vast improvement in Ben’s behaviour and co-operation since Ms Gosses started working with him’.

323 At some time, I think it was in 2003, Mr and Mrs Devlin engaged a private speech therapist to teach Ben language and provide auditory training sessions in an attempt to make up for the loss that they perceived he had suffered over the years.

324 Ms Herron, Ben’s mainstream teacher in years 2002 and 2003, provided an affidavit upon which she was cross-examined. She said Ben’s attendance at class was irregular. He was sometimes late and sometimes did not attend at all. She exhibited an attendance record which supported that assertion. More importantly, her evidence was that in 2002 Ben was not performing to the same level as his peers. He continued to struggle with his academic work in 2003.

325 Ms Herron was shown in cross-examination a document which exhibited Ben’s reading level, which she accepted showed that he had the lowest reading level in his class with a level of reading age when 10 years of about a seven year old. She accepted that his inability to perform at the same level as his peers was contributed to by his difficulty with language. She accepted that Education Queensland’s goal was to achieve an outcome where Ben achieved at the same level as his hearing peers.

326 In 2004 Ben’s mainstream teacher was Mr Nelson McGrath who has some Auslan skills. Mrs Devlin says that Mr McGrath informed her that his skills were somewhat rusty. She also said that Ben had told her that Mr McGrath used Signed English and not Auslan to communicate with Ben most of the time.

327 Ben’s SEC teacher was Sandra Wilson, and Debbie Campbell and Anne Enders continued to be his teacher’s aides. Ben received five hours education in Auslan per week from Sue Gosses.

328 When analysed, I think Mrs Devlin’s complaints can be summarised in this way.

(a) None of the Special Education teachers or regular classroom teachers or teacher’s aides, until Ms Gosses’ appointment, has had the ability to communicate in Auslan.

(b) Some of the teacher’s aides in the SEC have inferior skills in Signed English.

(d) Ben has not received appropriate Special Education instruction on Fridays.

(e) Sometimes Ben is left out of activities because of an inability of his regular classroom teacher to communicate with him.

(f) Ben’s progress at school has been delayed by reason of the school failing to provide him with adequate instruction.

329 There are other complaints dotted throughout her affidavit, but they are matters which any parent might observe in relation to the instruction of their child.

330 There is no doubt that Mrs Devlin is entitled to be concerned about Ben’s lack of progress. He has fallen significantly behind his hearing peers.

331 Specifically, I find, as my earlier findings show, that the teachers who had the responsibility of delivering instruction in literacy and numeracy were adequately competent in Signed English. It is no criticism as the respondent has contended that, of those teachers, they have continued to improve and develop their Signed English over a course of time. Continuing professional development is a matter to be encouraged and should not be the subject of criticism provided, of course, that the base level of Signed English was adequate which, in my opinion, it was.

332 In making those findings, I have had regard to the further written submissions made by the parties following upon the application to amend the Statements of Claim which I have previously discussed.

THE RESPONDENT’S CASE IN ANSWER TO BEN’S CLAIM

333 In answer to the claim of discrimination, the respondent has itself claimed that there are other reasons for Ben’s failure to achieve.

334 I have already referred to the delay in diagnosing Ben’s condition. There is no doubt that Ben’s profound deafness was not discovered until comparatively late. It is surprising that it was not noticed before Ben turned 16 months of age that he was profoundly deaf. That late diagnosis must have disadvantaged Ben.

335 In 1994 or 1995, more probably the later year, Mrs Devlin requested that Ben be made oral. That request was not countermanded until 1998.

336 Without in any way being critical of Mrs Devlin for her choice of communication for Ben, the first choice has turned out to be wrong and Ben was disadvantaged in the years 1994 to 1998.

337 It is also right, as the respondent pleads, that Ben’s family cannot communicate with him. Mrs Devlin has a limited form of communication with Ben using Signed English. She could not communicate with him in Auslan at any time prior to or since 30 May 2002. His father and his brothers and sister simply cannot communicate with him at all, except by way of gesture.

338 Ben, therefore, lives in an environment which is a serious disadvantage to him in attempting to obtain an education.

339 The respondent has pleaded that Ben is poorly behaved at times in class. The teachers who gave evidence said that Ben could be stubborn and unco-operative if he made up his mind that he did not want to engage in any activity or comply with any request made of him. However, no one has really advanced a reason for why he behaves poorly. An obvious reason is his inability to communicate and the frustration which that must generate. If that is the reason for his poor behaviour, then that takes the matter nowhere. If the respondent has failed to provide him with an education which allows him to learn to communicate, then it can hardly rely upon any poor behaviour on his part which is being caused by an inability to communicate.

340 The respondent also claimed that Ben failed to perform homework which had been set for him. The evidence does support such a claim. Ms Campbell, Ms Mosely and Mr Nobbs all deposed to Ben’s failure to do prescribed homework.

341 In her affidavit in reply, Mrs Devlin said:

‘I did not stop Ben from doing his homework at any stage. It is very important to me that a child revise in their homework things like spelling, reading and times tables. I do think that it is important however for children to spend time playing when they are Ben’s age and do not agree with the requirement that children spend hours doing homework every night. I always abided by the rule of assisting my children with their homework and I often helped Ben.’

342 Mrs Devlin was cross-examined on this aspect. I formed the impression that she did not encourage Ben to do his homework because she thought that he became frustrated.

343 I am satisfied that Ben has not completed his homework as often as he should and that Mrs Devlin has allowed him to avoid doing his homework.

344 I think that Ben’s attendance at school was somewhat irregular in 1997 and 1998 but not so irregular, it seems to me, to establish that it has affected his ability to learn.

345 I can understand why Mrs Devlin has allowed him to stay at home on occasions. She understands the frustration that Ben suffers with his inability to communicate with others. I can understand her not forcing him to attend pre-school when he was between the ages of 3 and 5 years. I think, frankly, it is a normal mother’s reaction.

346 I have already referred to the FM units which are used in conjunction with a hearing aid worn by a person with a hearing impairment. It is recommended by Deaf Associations that, in order to maximise the benefit from the use of hearing aids, it is best to use a FM unit for teacher directed situations because the FM unit filters out background noise and allows the speaker’s voice to be heard more clearly.

347 There is a considerable body of evidence from Ben’s teachers that over the relevant period of time Ben did not use his FM unit for a number of reasons. He often did not bring the unit to school. The unit was often broken and not repaired.

348 I accept that evidence.

349 Ben’s claim has brought into the public the difficulties that hearing parents have with deaf children.

350 I can suppose, without knowing, that Ben’s case is no different than a lot of other children with hearing parents. The parents want the best for the children which they see, in the first instance, is for the children to communicate orally. If their children can communicate orally then they can communicate with a wider circle of people. If they are unable to communicate orally, but only in signing, then they can only communicate, except by way of gesture, with other people who can sign. That limits them to communication with other deaf people or people closely associated with deaf people.

351 I make the further following findings.

352 Ben has very limited communication skills. He has some ability to communicate in Signed English and some ability to communicate in Auslan. He has little ability to communicate orally.

353 Academically he has not achieved at the same level as his hearing peers. His level of achievement is significantly less.

354 Education Queensland provided him with an AVT up to his commencement at school.

355 Since he has been at school he has been taught in both mainstream classes and special education classes.

356 Communication with Ben at school has either been oral or in Signed English. Education Queensland has applied the Total Communication Policy to Ben.

357 Not all of his mainstream teachers have been fluent in Signed English and, indeed, few of them have been.

358 Not all of his Special Education teachers have been fluent in Signed English. None of the teacher’s aides have been fluent in Signed English.

359 Up until 1998, Mrs Devlin’s preferred method of communication with Ben was oral.

360 The decision to communicate with Ben orally was a mistake and has inhibited his development, in that it meant that he was unable to communicate with his teachers when he began school in any meaningful way.

361 Ben has continued to under achieve for a number of reasons. First, for the reason already mentioned, that when he began school he was unable to communicate. Secondly, because he lives in an environment in which he has little or no communication with his father and siblings and only limited communication with his mother. That has inhibited his development. Thirdly, because he has failed to attend school regularly and thereby obtain the advantages of an education. Fourthly, because he has not been compelled by his parents to complete his homework.

362 None of Ben’s mainstream teachers have had the ability to communicate in Auslan. Three of them have had very limited ability to communicate in Signed English. The others have been unable to communicate in any form of signing.

363 Mainly, his Special Education teachers have been competent and fluent in Signed English. Ms Laurie Ludvigsen probably had a very limited ability to communicate in Signed English. Apart from her, the others had sufficient Signed English to communicate with Ben.

364 I reject Mrs Devlin’s evidence that Ben’s Special Education teachers have not been proficient at Signed English. I accept the evidence of each of the teachers that they had sufficient proficiency to communicate adequately with Ben.

365 In my opinion, Education Queensland have provided Special Education teachers, who have been suitably fluent in Signed English, to communicate with and teach Ben. Therefore, in my opinion, the claims in par 14 of Ben’s Statement of Claim have not been made out.

TIAHNA’S CASE

366 As I have previously noted, Tiahna’s paternal grandparents are deaf. Her mother, who is not deaf, had the experience of growing up in a household where her parents communicated with each other in Auslan. That, of course, also made Ms Smith proficient in Auslan.

367 However, there is no doubt, in my opinion, that Ms Smith, once she was aware of Tiahna’s disability, wanted Tiahna to be as oral as possible. She agreed that there was a ‘very distinctive advantage for an hearing impaired person having some capacity to be able to express herself in English independently: I think that’s very important’.

368 In 1999 Tiahna attended the Noosaville SEDC on one occasion. Ms Smith, however, believed that Tiahna would benefit by attending the Yeerongpilly SEDU and she was enrolled in that institution in about April 1999. She was taught in Signed English, not Auslan, but this, so Ms Smith said in her affidavit, was the best available option for Tiahna at that stage. She attended the Unit for two years once a week for one hour and later, twice a week for one hour.

369 When Tiahna turned three years of age, her parents were told that for her to be part of the Yeerongpilly pre-school program she would have to attend in Brisbane three days per week. Because they could not afford that cost, they decided to go ‘back to the services of the AVT on the Sunshine Coast. This was a significant backwards step for Tiahna’.

370 Ms Smith has criticised the AVT services offered to Tiahna in detail and in trenchant language. I am not sure why she has done that. It is not part of her case, or her daughter’s case, that the AVT services offered to Tiahna interfered with her advancement.

371 In June 2001 Tiahna was enrolled at the Noosaville SEDC. She was then just over three years of age. For the period between July and November 2001, the Special Education teacher was Beth Devonshire. Suzanne Kachinsky was also a Special Education teacher during that period. There were two teacher’s aides, Valda Lumb and Suzanne Portch.

372 Prior to enrolment, Ms Smith and Mr Hurst met with Mr Armstrong and Ms Devonshire to discuss Tiahna’s education in that year, and Ms Smith has deposed:

‘We expected and were led to believe that the Noosaville SEDC would prepare Tiahna for entry to primary school to the same level and extent as a hearing child would be prepared by the attached pre-school.’

373 Tiahna attended the SEDC on 10 occasions during that year. Ms Devonshire wrote in a report in that year that Tiahna was saying lots of words and would ‘engage in chat’.

374 In a further report, she observed that Tiahna was responding to stories and activities that were both spoken and signed. She was speaking in short sentences and using single words.

375 Ms Mosely said, in her affidavit, that Tiahna appeared to be age appropriate in her level of communication. She said that both could understand the majority of what each signed to each other.

376 In 2002 Ms Davis observed that Tiahna was performing well in her terms of English and speech skills and was able to communicate effectively with other children.

377 Ms Smith said that there was no one in the Unit at Noosaville SEDC in 2001 who could communicate fluently with Tiahna either by way of Signed English or Auslan. She said that she had to remain at the school due to the teachers’ lack of communication skills. She said that Tiahna was bored because she could not understand the teachers. Tiahna would become upset in the music aspects because she could not hear the music and the teachers did not have the appropriate skills to sign the music to her.

378 Ms Smith said that she and her husband eventually formed the belief that the Noosaville SEDC was not appropriate for Tiahna because the teachers were not able to communicate with Tiahna and her learning would be extremely limited. They therefore decided to remove her from the school in early 2002. As the only other educational institution maintained by the respondent offered a similar program to Noosaville SEDC, Ms Smith and Mr Hurst decided to enrol Tiahna in the non-government pre-school, Coolum Community Pre-School and Kindergarten. She commenced at that institution in February 2002 and remained there for the whole of that year.

379 It is not clear from Ms Smith’s affidavit whether Tiahna was taught during that year in Auslan. She does say that Debbie Castles, who is a fluent, profoundly deaf Auslan signer, supported Tiahna three hours per week.

380 Ms Smith says that she and her husband have paid for private speech therapy lessons which have been provided by Laurie Ludvigsen and Ron Morris.

381 This was at a cost to them which Ms Smith says should be borne by Education Queensland.

382 In 2003, Tiahna attended Sunshine Beach Pre-School, which is not an Education Queensland institution.

383 Again, it is not clear how she was taught at that pre-school and, in particular, whether she was taught exclusively in Auslan, or partly in Auslan, or how her teachers communicated with her.

384 In August 2003 Tiahna enrolled at the Coolum State Pre-School and in 2004 she enrolled in the Coolum State Primary School in Grade 1. Her mainstream teacher was Joanne Minto. Her Special Education teacher or special needs teacher was Jenny Palmer.

385 Penny Terrell acted as Tiahna’s AVT until 9 February 2004. She was replaced by Sandra Wilson, who remained the AVT until 30 April 2004. Since that time, Jennifer Wayne has been Tiahna’s AVT.

386 Ms Terrell ceased to be Tiahna’s AVT when she went on stress leave. It was asserted, but not established, that her stress problems were as a result of Ms Smith’s behaviour. I cannot find that to be the case because it was not proved. However, Ms Smith made much of the fact that Ms Terrell did not attend three appointments in 2004.

387 Again, I cannot understand why Ms Smith advanced these matters. Her daughter’s case is that she has been disadvantaged because she has not been taught in Auslan.

388 There are many other complaints that Ms Smith made, all of which are irrelevant and would have been better not made.

389 The respondent, in its submissions, addressed a number of matters which it said could lead to findings that Ms Smith had behaved grossly improperly leading up to and since the complaint to HREOC. It said that Ms Smith has used these proceedings and the media as a two-pronged assault on Education Queensland to obtain what she believes Tiahna is entitled to, namely, an Auslan education.

390 As I have said, I think it would have been better if a lot of things had not been done and had not been said by Ms Smith.

391 However, in the end, I do not have to make findings in relation to those matters because they do not advance the respondent’s case on the relevant issues or destroy Tiahna’s case on those same issues.

392 I decline to make those findings.

393 There are other matters which I need to address in relation to Tiahna’s progress at school. Tiahna’s progress, unlike Ben’s, has been extremely good.

394 Later, I will address the expert evidence in relation to the use of Auslan and also the progress of the two applicants in their education.

395 However, it would be useful at this stage to identify that part of the expert evidence called by Tiahna which impacts upon her claim that she has been treated less favourably. Ms Pardo, a specialist in education of the deaf who assessed Tiahna, said that Tiahna speaks very well and effectively uses speech and speech reading to communicate with non-signers.

396 Mr Morris, a speech pathologist, said that Tiahna had developed excellent language skills and can be expected to cope in a regular classroom environment because of those skills. However, he issued the caveat that, because of the degree of her hearing loss, it is unlikely that she would comprehend all of the instruction easily. He said that her spoken language test results are within the normal range. Her aided thresholds are reported to be well within the speech spectrum and she has good access to all of the English sounds in ideal listening conditions. He thought that Tiahna could respond to Signed English given her very good English skills.

397 Ms Wilson, a psychologist and teacher of the deaf, said that Tiahna uses her residual hearing and has developed a complete range of skills well into the average range above all of her skill areas, although her vocabulary scores were a little low.

398 Professor Branson thought that Tiahna had developed linguistically and cognitively at an age appropriate level. Professor Branson said that Tiahna expresses a preference role for expressive communication and a preference for receptive communication.

399 Everyone seems to be agreed that Tiahna is highly competent in Auslan. I accept all of that evidence.

400 Tiahna is a severely deaf child who is thereby at a disadvantage in receiving an education. However, she has been able to develop linguistically and cognitively to an age appropriate level, and develop a complete range of skills.

401 The respondent’s case that a range of other factors have impacted upon Tiahna’s ability to obtain access to educational material is therefore less relevant in Tiahna’s case than in Ben’s case. However, the matters need to be addressed.

402 In 2001 Tiahna was offered placement for two mornings per week at the Noosaville SEDC. She only availed herself of one of those days and only attended 10 sessions in all during the whole of the year.

403 Even when Tiahna did attend, she often did not stay for the whole of the period available to her.

404 Ms Devonshire said that Tiahna’s infrequent attendance meant that the delivery of the program to Tiahna could not be achieved. I accept that evidence.

405 An AVT was made available to Tiahna, but Tiahna’s mother discontinued that service and Tiahna did not receive any AVT services in 2001.

406 The respondent contended that Ms Smith’s uncooperative behaviour and, indeed, her aggression had interfered with the respondent’s ability to deliver educational services to Tiahna. I have no doubt that Ms Smith’s behaviour has made it more difficult for Education Queensland to deliver its services to Tiahna. I think Ms Smith’s behaviour has frustrated Tiahna’s teachers in some respects.

407 The respondent criticised Tiahna’s parents for failing to re-enrol Tiahna in the SEDC in 2002 and 2003. It argued that they chose to enrol Tiahna in a regularly changing array of educational institutions; some administered by the respondent; and others administered by private providers, none of which had specific facilities to support students with disabilities.

408 Tiahna would have been eligible to attend the Noosaville SEDC which has programs for students aged 6 to 12 years. Tiahna is eligible because she is assessed at Level 6. The Noosaville SEDC is coded for children with hearing impairments and employs qualified teachers of the deaf. Notwithstanding the recommendation of Tiahna’s teachers that she be enrolled in the Noosaville State School, which included those special services, her parents elected to enrol her at the Coolum State School which is not coded for hearing impairment and has no teachers of the deaf available.

409 It seems surprising that Tiahna’s parents would have taken such a step. However, it may be explained by Ms Smith’s own evidence, which was that she wanted Tiahna to be as oral as possible. It may be that she saw this as a way of achieving that end.

410 I am not sure it is appropriate to criticise Tiahna’s parents for seeking alternative educational opportunities for Tiahna during 2002 and 2003.

411 However, it does mean, it seems to me, that Tiahna cannot claim that her education has been retarded in any way by Education Queensland over that period of time.

DEAF CHILDREN AUSTRALIA

412 It is necessary, because of the respondent’s contentions, to have regard to one institution’s participation in these proceedings. Deaf Children Australia is a charity. Its members comprise individuals who have an interest in deafness. It is a non-profit organisation. Any child which has any degree of hearing loss could be a client of Deaf Children Australia.

413 Deaf Children Australia has taken an active interest in this litigation for the purpose of promoting its views on how deaf education should be delivered. Its views, of course, are that deaf education should, where the child is profoundly deaf, be delivered in a bilingual program using Auslan as a first language and the method of communication between the teacher and the deaf child.

414 Deaf Children Australia has not only taken an interest but has also taken a positive role in these proceedings. It has arranged for the witnesses to be called in the applicants’ case and, in part, acted as a co-ordinator. Ms Pardo, an employee who gave evidence, admitted as much in her cross-examination. She recruited one of the applicants’ experts, Professor Branson. Julie Phillips, who was also an employee of Deaf Children Australia, has coordinated witnesses for the applicants.

415 Ms Pardo, whose evidence I shall later discuss, was asked in cross-examination these questions and gave these answers:

‘Is the answer – all right, we can debate what is meant by co-ordinating, I suppose, but you have played a role in organising the applicant’s case for them, haven’t you?---I have played a role, yes.

And what names did you suggest?---I suggested Professor Branson.

And these cases are seen by your organisation as a way to promote its view as to how profoundly deaf children should be educated by sign language; that is so, isn’t it?---No, I disagree with that statement.

Why?---This case is seen by my organisation as a way of promoting a view that deaf children are individuals with individual needs, and that, where possible, those individual needs need to be catered for in order to achieve the best outcomes in education.

But your organisation is heavily supporting this case, in short, as a means of promoting its view of deaf education, isn’t it?---What view is that of deaf education?

Whatever view it is that it holds. It is supporting the applicants to promote your organisation’s view of how deaf education should be delivered?---Yes.’

416 The degree of Deaf Children Australia’s support for these proceedings can be shown in a media release of 31 March 2004 which was tendered during Ms Pardo’s evidence, which I set out in full:

‘DEAF CHILDREN’S COURT CASE ABANDONED

The court case of two families of deaf children suing the Queensland Department of Education has been abandoned with the judge withdrawing himself from the case due to a possible conflict of interest.

Deaf Children Australia is supporting these families in this action because of the failure of the Department to provide adequate education resources for these children.

Deaf Children Australia, formerly VSDC – Services for Deaf Children, is a leading national charity representing the needs of deaf and hearing impaired children and young adults, and has done so for over 140 years.

‘ “This case must be rescheduled as a matter of priority to ensure there are no further excuses for the Department in addressing the inadequacy of the education system for deaf children,” said Damian Lacey, Chief Executive Officer, Deaf Children Australia.

“Every day of continued poor quality schooling for these children is a missed opportunity.”

During the case, the counsel for the Department alluded to an Auslan bias by Deaf Children Australia. This bias is unfounded.

“We respond to the needs of all deaf and hearing impaired children, regardless of additional disabilities, location, or chosen communication methods. We work at reducing the barriers, be they physical, cultural, legislative, attitudinal or otherwise, so that these children get every opportunity in life.”

Deaf and hearing impaired children need a complete language – be it a spoken language or a visual language. The Department’s total communication policy is fundamentally flawed in this regard. For these children the Department’s education policy does not provide an adequate solution.

“It is not our decision to proceed to a legal arena, nor do we actively encourage families in this direction. Sometimes, however, there is not an alternative solution. We currently provide advocacy services to several hundred deaf children and their families throughout Australia and, of these, currently only four involve legal actions.”

As a not-for-profit organisation, Deaf Children Australia’s service is made possible with the support of the community, businesses, government financial grants and volunteers.’

417 Ms Pardo was cross-examined about the content of that media release and she agreed that Deaf Children Australia was providing advocacy services, as the penultimate paragraph of the media release stated, to support those four families through their legal actions.

418 In Dr Komesaroff’s cross-examination, a paper which she had written was put to her: Allegations of Unlawful Discrimination in Education: Parents taking their Fight for Auslan to the Courts, which was published in Journal of Deaf Studies and Deaf Education Volume 9 No. 2, University Press 2004.

419 In that paper, it is clear enough that Dr Komesaroff sees proceedings of this kind as providing a vehicle for having her views adopted more quickly.

420 She concluded in that paper:

‘In conclusion, the continuing legal action taken by parents of deaf children since the introduction of the DDA [the Disability Discrimination Act] suggests a failure of education authorities to adequately respond to the support for bilingual education in Australia. While parents continue to face resistance to their requests for Auslan and bilingual programs, claims of choice in deaf education are merely rhetoric. When it comes to political change, educators and educational authorities may need to become aware of the discriminatory practices within their own classrooms and schools. If litigation convinces them of this, then it is worth the legal fight. In the long term, however, legislation may be necessary to ensure deaf children’s linguistic rights are met.’

421 Deaf Children Australia and some supporters of the applicants have used these proceedings for the purpose of attempting to compel educators to introduce Auslan as a first language in the education of profoundly deaf children.

422 That is made clear, in my opinion, by some of the applicants’ own expert evidence and the intransigence of some of those experts in considering any competing arguments.

423 It is also clear that Dr Komesaroff, in the article to which I have referred, supports the use of the HREOC Act for the promotion of Auslan as a method of communication with deaf children.

424 In my opinion, it is a misconception to think that legal proceedings of this kind are the appropriate vehicle to introduce changes into the education system and, in particular, into that part of the education system which impacts upon persons with disabilities.

425 Legal proceedings are adversarial. They are constructed for the purpose of one party being successful and the other party being unsuccessful. Evidence is introduced by each party to suit that party’s interests. Evidence is not introduced by all parties, also to suit their interests.

426 The Court must decide the issues before it only upon the evidence before the Court. The Court does not have the power to obtain information for itself outside the evidence which is presented to it.

427 In litigation such as this both parties, for whatever reasons, forensic or otherwise, may decide not to introduce evidence and material which an educator might think is highly relevant in the assessment of the best method of teaching children with disabilities.

428 The Court is not an expert on education and, more particularly, on the education of profoundly deaf children. Decisions as to the appropriate method of the education of profoundly deaf children should be made by those qualified to make them, namely, educators, after a consideration of all of the evidence and all of the views whether favourable or unfavourable.

429 The decisions should be made by the educators in the best interests of the children to whom the services are offered. Those decisions should be made after careful inquiry, proper research and calm reflection.

430 Proceedings of this kind polarise views. There is no doubt that that has occurred in this case. That is an unfortunate result. Proceedings of this kind may lead to experts being discredited and, in due course, to their views being given less weight than should attach.

431 In my opinion, proceedings under the HREOC Act are not the appropriate medium for advancing educational theory in the hope and expectation that educational institutions will have to respond to a decision of this Court.

432 The proper purpose of proceedings of this kind are to decide upon the issues between the parties.

433 However, having said that, I must decide these proceedings according to law and I will endeavour to do so. The applicants will be entitled to succeed if they make out their claims notwithstanding that some of their supporters have used these proceedings for wider purposes.

THE PURPOSE OF THE EXPERT EVIDENCE

434 The principal purpose for calling expert evidence in these proceedings was to establish both applicants’ claims of indirect discrimination. The evidence was mainly directed as to whether both applicants could comply with the requirement or condition which I have identified and whether or not the requirement or condition was reasonable.

435 However, the expert evidence did also address both applicants’ claims that they have been retarded in their development by reason, in Ben’s case, of the direct and indirect discrimination and, in Tiahna’s case, by reason of the indirect discrimination.

436 That evidence tended to establish one way or the other whether the applicants could comply with the requirement or condition.

437 However, for the reasons which follow, it would be convenient to discuss the respondent’s expert evidence first.

the RESPONDENT’S experts

438 The respondent called three experts, namely, Professor Power, Ms Glenda Lawrence and Sister Mary Teresa Lawson. As I have said, it would be convenient to discuss the respondent’s experts’ evidence first. There are a number of reasons for that. First, Professor Power has been prominent in the education of deaf children for a number of years and was able to trace the history of the education of deaf children in Australia over a lengthy period of time. Secondly, he was involved in a number of committees that advised the respondent in relation to the appropriate policy for it to adopt in teaching deaf children. Thirdly, he was involved in the development and adoption of the Total Communication Policy. Fourthly, he is a highly regarded academic.

439 Ms Lawrence has also been prominent in the education of deaf children and also for a long period of time. In the course of her career she was a contributor to the Total Communication Policy; commenced a project in relation to the use of Auslan with a child at the Warwick East State School; and participated in the meetings of the working party that met in 2002 to examine the educational services and programs for deaf/hearing impaired children and students in Queensland. She was also a very impressive witness.

440 Whilst Sister Mary Teresa Lawson is not directly employed by Education Queensland, she did participate in committees which had the responsibility of introducing the Total Communication Policy.

441 All three of the respondent’s witnesses were very impressive. They were all balanced, reasonable, thoughtful, reflective and open to suggestion.

442 Professor Power is the Emeritus Professor of Special Education at Griffith University. He originally trained as a teacher of the deaf at the Training Centre for Teachers of the Deaf in Kew in Victoria and, in 1955, obtained a trained teacher’s certificate for teachers of the deaf. He obtained a Bachelor of Arts degree in 1962, a Bachelor of Education in 1965, a Master of Education in 1970 (his thesis was ‘Emotional Development in Deaf Children’) and a PhD in 1971 (his thesis was ‘Deaf Children’s Acquisition of the Passive Voice’).

443 Between 1968 and 1979 he worked at the Training Centre for Teachers of the Deaf at the Institute of Special Education in Victoria.

444 In 1979 he moved to Queensland and commenced employment with Mt Gravatt College of Advanced Education. That institution was subsequently renamed the ‘Mt Gravatt Campus of Brisbane College of Advanced Education’ and it is now the Faculty of Education at Griffith University. He became an Associate Professor in 1979 and, subsequently, Professor of Special Education. His career has focussed entirely upon research and educational and social aspects of deafness, and the education of teachers of the deaf.

445 The respondent is one of the bodies that has consulted him, from time to time, about various matters concerning deaf education.

446 Griffith University is the largest trainer of Special Education teachers in Australia and a person training as a teacher of the deaf at Griffith University completes a Bachelor of Special Education over a period of four years.

447 In his evidence, Professor Power traced the manner in which deaf children have been taught in Queensland over the relatively recent past.

448 Almost all of Queensland’s deaf children were taught at the Queensland School for the Deaf at Annerley. There were no schools in regional or remote areas and, as a result, deaf children were separated from their parents whilst they undertook their education.

449 In 1979 a committee conducted an inquiry into the decentralisation of services for children with hearing impairments in Queensland.

450 Professor Power was a member of that committee which recommended the establishment of rural and suburban Special Education Units.

451 That recommendation was accepted and Special Education Units were open in metropolitan rural regions around Queensland and AVTs were appointed to assist in the education of deaf children in mainstream classes.

452 Until about mid-1970, deaf children were taught orally. That is to say, children were taught through the use of lip reading, listening and speech. Sign language was prohibited for teachers and students at the School for the Deaf. The approach to education of deaf children in Queensland was markedly different to that taken in New South Wales and Victoria which permitted signing in some schools.

453 In the mid-1970s it became recognised that it would be beneficial to provide education for deaf students by using speech and signing in English simultaneously. That was Professor Power’s opinion at that time. That method of education was accepted and the practice of teaching by using speech and signing simultaneously became known as ‘simultaneous communication’.

454 Professor Power said that at that time, it was thought that the sign language used by the deaf did not contain sufficient vocabulary. Therefore, teachers of the deaf in Victoria and Queensland established an Australian Sign Development Project which involved the redefinition of Auslan signs to give them a single English meaning, and the creation of new signs needed for education which did not exist in Auslan. I shall refer to Ms Pardo’s trenchant criticism of this statement later.

455 Professor Power’s evidence was that Signed English was introduced in Australia in the late 1970s and was designed as an educational tool with a view to giving deaf children a better education in English than would be achieved otherwise simply using auditory, verbal, or other purely oral methods.

456 He said that native sign languages used by the deaf communities in various countries have been recognised as languages of similar epistemological, cognitive and linguistic status to spoken languages since about the mid-1960s.

457 Professor Power’s evidence was that there are three languages used by the deaf in Australia for communication:

(1) Auslan, as it was termed in 1982 by Dr Trevor Johnson, who was a child of deaf parents. Professor Power says Auslan is a visual, spatial language which consists of hand movements, facial expressions, body language and finger spelling. It has no oral component. Its origins are in British sign language which is the native language of the deaf in Britain with some signs borrowed from American Sign Language, the native sign language in the United States of America.

(2) Signed English which is a manual representation of English. It is not a separate language but is English in sign form. It is an entirely different language to Auslan, although Signed English does borrow many signs from Auslan. Signed English is used simultaneously with speech, listening, finger spelling and lip reading. It is different from Auslan in that it can be used simultaneously with other forms of communication. Auslan cannot, because Auslan has a different syntax, grammar and sentence construction to English.

(3) Pidgin Signed English is a combination of Signed English and Auslan which incorporates some Auslan grammar but uses English word order.

458 After the introduction of Signed English in the late 1970s, the use of that form of communication increased until the early 1990s and Signed English was used simultaneously with speech, listening, finger spelling and lip reading. That method of education was referred to as ‘Total Communication’ which is a philosophy which recognises a variety of methods which may be used to facilitate communication with the deaf. It is not itself, so he said, a method of communication but a philosophy which brings together a number of communication modes in an attempt to create an environment in which deaf children are immersed in language through those communication modes.

459 Sometime early in the 1990s, Education Queensland determined to use the Total Communication Policy and Professor Power was invited to become a member of a committee to formalise that policy. Another member of the committee was Ms Lawrence.

460 The terms of reference were to formalise the Total Communication Policy which had developed since the introduction of Signed English. The draft Total Communication Policy represented the majority view of that committee.

461 The policy recognises that as many communication modes as possible should be used in communication with deaf children in an educational environment. Children are encouraged to develop their speech, listening and language skills. The policy, so Professor Power said, ‘seeks to ensure that deaf/hearing impaired students across the State have equal access to an appropriate educational program and a consistent communication approach’: par 32 of his affidavit.

462 However, the policy recognises that some forms of communication will be of more use to some students than others. The Total Communication Policy recognises degrees of deafness of students and that some method of communication may be more advantageous for different students.

463 The draft Total Communication Policy was submitted to, and approved by, Education Queensland’s Executive Management Committee in January 1994. It formalised the practice that had been adopted within Education Queensland over the previous 20 years.

464 Professor Power recognised that the Total Communication Policy did not specifically refer to Auslan. When promulgated in 1994, Signed English was used in the education of deaf children in Queensland State schools and Auslan was not used in Queensland’s State schools at all.

465 He said that at the time the Total Communication Policy was approved most teachers believed that Signed English was a better form of communication in education than Auslan, because Signed English gave a better command of English, which is a necessary language for the development of literacy skills and, of course, the language of communication with non-hearing impaired persons.

466 Professor Power said there had been argument between academics and teachers of the deaf since about 1990 about the educational benefits of Auslan but that no real consensus has ever been obtained. He said that in recent years there had been a movement towards new kinds of educational communication for educating deaf students which was called the Bilingual/Bicultural (BLBC) approach. That approach recognises that Auslan and English are two distinct languages. The BLBC approach provides a deaf student with Auslan as a first language in order that that deaf student can communicate with other deaf people. English is the deaf student’s second language.

467 The first pilot project in the use of Auslan as a method of communication was established in Hobart in 1992, the Claremont project, which comprised a final year of primary school (Year 7), Years 8, 9 and 10 of high school and Years 11 and 12 of college.

468 At the time of the formalisation of Education Queensland’s Total Communication Policy there was little or no evidence, even anecdotal, concerning the Claremont project.

469 In 1993 and 1994 Professor Power became aware of some research in the United States and Scandinavia into BLBC programs reporting on the success of those programs.

470 Professor Power said that by the late 1990s ‘there were a number of people interested in the introduction of the BLBC program in Queensland’. At that stage, most Australian States had a similar program at least in their capital cities.

471 However, there were still a number of people who had an interest and experience in deaf education who were continuing to advocate the use of Signed English as the preferred method of communication.

472 Prior to 1998, Professor Power had contact with Glenda Lawrence who he recognised as an expert in the education of deaf children.

473 In or about 1998 Ms Lawrence was the Assistant Coordinator, Low Incidence Support Centre, Hearing Impairment Services. That unit was involved in producing a discussion paper based upon data collected from a literature review and other interviews concerning BLBC programs for deaf/hearing impaired students, both nationwide and internationally.

474 The discussion paper, which was released in 1998, focussed on five programs; four of which were carried out in Australia and one in California in the United States.

475 The discussion paper advocated the introduction of a bilingual-bicultural program. At the same time, it offered the opinion that the Total Communication Policy was appropriate, although it may have been inappropriate to restrict the approach to the manually coded form of sign language.

476 That discussion paper led to the formation of a small working group to review the paper. The working group met on a number of occasions and it formulated guiding principles and made certain recommendations for a BLBC program in Queensland.

477 That, in turn, led to the formation of a reference group, consisting of representatives of the relevant stakeholder organisations, which was convened to examine and provide feedback on the recommendations that had been proposed by the working party. Professor Power and Ms Lawrence were both members of that reference group.

478 Other members were sourced from the Queensland Association of the Deaf and the Australian Association of Teachers of the Deaf. There was a representative from the Committee for Hearing Impaired Children and three members of the working group.

479 The task of the reference group was to consider a set of 11 proposals that had been advanced by the working group.

480 Professor Power said that one of the proposals advanced by the working group was that a trial BLBC program be undertaken in the Brisbane area only. He said in his affidavit:

‘59. … The reason for this recommendation included the fact that it has been recognised that the existence of a “Communication Community” (those who can communicate using both Auslan and English) is essential to the success of BLBC programs. It is very difficult to create a Communication Community for a BLBC program without a number of deaf children, their hearing siblings and CODAs. Due to its population base, Brisbane represented the best chance of creating such a Communication Community.’

481 Due to its population base, Brisbane represented the best chance of creating such a communication community.

482 The Director-General adopted the recommendations of the reference group and, in 2000, Education Queensland trialled one BLBC program which was introduced in two phases.

483 A BLBC trial commenced at the Yeerongpilly SEDU in 2000 for children aged from birth to six years. In 2001 the BLBC trial was then introduced at the Toowong State School for Year 1 children. The children who had commenced the trial at the Yeerongpilly SEDU in 2000 were offered a placement at the Toowong State School in 2001.

484 It was Professor Power’s opinion that a communication community of deaf/hearing impaired and hearing students was essential to the success of a BLBC program. He said it was also necessary to have suitably qualified staff who are proficient users of Auslan and who are committed to the philosophy and practice of BLBC education. It is also necessary to have suitably qualified staff in Signed English who can use that skill for the special purpose of teaching English.

485 He said in his affidavit:

‘67. The ability of a student (hearing or non-hearing) to gain access to the education material provided through a bilingual bicultural program, can be affected by a range of factors that are unrelated to the program offered. Those factors can include:

(a) the time at which the child is diagnosed as having a hearing impairment;

(b) the time at which the child with the hearing impairment first receives appropriate support for his or her hearing impairment;

(d) the frequency with which the child’s family uses signing in Auslan at home (assuming that they have signing skills);

(e) the degree of other support that is utilised by the child, outside of the bilingual bicultural program, such as advisory visiting teacher support;

(f) the frequency with which the child attends the classes offered;

(g) the child’s use of hearing aids and other devices to assist with his or her ability to hear;

(h) the child’s receptiveness to the education provided;

(i) the child’s participation in class;

(j) the continuity in the child’s education at the one educational facility.’

486 Professor Power said that because it is necessary to have a communication community for the success of a BLBC program, it is difficult to introduce such a program where there are only few deaf/hearing impaired children because there is little likelihood of Auslan fluency developing.

487 He said:

‘71. As stated above, a Communication Community is important for the success of a BLBC program. In order to create a Communication Community at a school such as Noosaville State School, it would be necessary to teach Auslan to hearing children and mainstream teachers. However, with only a few deaf/hearing impaired children in the school for hearing members to communicate with using Auslan, there is little likelihood of Auslan fluency developing. To provide a BLBC program under these conditions would require a level of commitment and participation of the hearing members of the school community that would be difficult to find and very difficult to establish and continue. I should note that the same level of commitment would apply to a program using Signed English under these conditions.’

488 Professor Power said there continues to be a divergence of opinion about the best method of communication when educating deaf children, although there is no doubt that over the recent past there has been a trend towards the BLBC approach of educating deaf/hearing impaired children and therefore a shift away from using Signed English.

489 He said, however, whilst there has been a move towards BLBC programs, no consensus has been reached amongst academics or even as between interest groups. He said that in the early 1990s academics in the United States were of the opinion that BLBC would solve all problems associated with deaf education but that has proved to be wrong. The BLBC programs are not the solution to all problems. It has been observed that it is still very difficult for deaf students to achieve in academic areas that rate parallel to their hearing peers. He said that this is, in large part, due to the fact that most materials for learning are in English and deaf students still have difficulty with the transfer from Auslan to English.

490 Professor Power said, however, at par 78:

‘… I believe that the personal, social and academic outcomes associated with BLBC programs are often better for deaf students than those achieved using Signed English (with Simultaneous Communication).’

491 Although he conceded in cross-examination that not all other academics agree, it was his view that Signed English is useful for the teaching of the English language, reading and the development of literacy skills.

492 In the end result, it was Professor Power’s opinion that Auslan ought to be used for general communication in the education of deaf children but there is still a role to be played with Signed English as part of a BLBC program. There can be no doubt that, as he stated in his affidavit and as his cross-examination shows, Professor Power has now reached the conclusion that Auslan is a valuable tool for educational purposes. But, he has not always held that view. He said that in 1997, for example, he was ambivalent on the transition to Auslan. He said that at that stage he was beginning to be persuaded.

493 It can be seen from Professor Power’s evidence that Education Queensland has been moving toward the introduction of a BLBC program and has commissioned various committees to advise it in relation to that end.

494 Professor Power said of Education Queensland’s progress:

‘82. Whilst I believe that EQ could have been more “adventurous” in introducing a BLBC program in Queensland (i.e. by introducing the program earlier), I believe that it was reasonable for EQ to exercise caution in relation to this matter. I believe that it has been prudent for EQ to exercise caution for the following reasons:

(a) the divergence of opinion about the method;

(b) The absence of definitive research about the success of the BLBC programs (but also see above);

(c) the difficulties associated with discontinuing a BLBC program after it had been introduced. In my opinion, it could be quite detrimental to a child’s education to have a BLBC program removed from a child once having been introduced to it; and

(d) the relatively small number of students available to benefit from such a program and the difficulty of finding a school willing to undertake the program.’

495 The introduction of Auslan in BLBC programs requires the training of teachers in the Auslan language.

496 To date, most teachers have had training in Signed English and have skills in that form of communication.

497 Professor Power said it is difficult to train an adult person who has skills in Signed English in Auslan. Auslan is a separate language and, for adults, it is like learning a foreign language. He said that it would take a number of years to train the current teachers of the deaf to the required level of fluency in Auslan. It would be preferable to train new teachers who were already fluent in Auslan. However, there are very few candidates of that kind who could be trained as teachers.

498 As an interim measure, it might be possible to use interpreters who have been accredited by the National Accreditation Authority for Translators and Interpreters (NAATI) to assist registered teachers.

499 There is one important aspect of Professor Power’s cross-examination which should not be overlooked:

‘Now, let’s take the first person. This first person is 11 years old, severe to profound hearing loss. The reports indicate very little use of the residual hearing, is in grade 6, has a severe language and academic delay, and the assessments seem to indicate has the language development of a five year old, has been taught by teachers and teachers aid using simultaneous communicate [sic]. The evidence suggests that the teachers and teachers aids throughout the education, by and large, with one or two exceptions, learnt signed English more or less on the job. From July 2003 this child has been exposed to five hours per week of Auslan interpreting from a fluent NATI 2 interpreter, and the reports suggest that the child is reacting positively to the Auslan. Is it your view that that child would benefit from a full-time Auslan interpreter?---It would certainly be better than five hours.

All right. Now, let’s take the second child. Second child, also severe to profound hearing loss but can make much better use of the residual hearing than the first child. First language is Auslan. Mother is a CODA – child of a deaf adult, sir.

HIS HONOUR: Yes.

MR GRAY: Two-thirds of a – is now six years old. Two-thirds of her contact time in education is assisted – she’s assisted with a fluent Auslan interpreter who’s also a CODA. The evidence is that the Auslan interpreter assists the child to access the curriculum. Would that child, do you think, benefit from a full-time Auslan interpreter?---Again, better than part-time. Yes.’

500 I have already referred to Ms Glenda Lawrence who was employed in the Low Incidence Support Centre and is now the Principal in Inala West State School, an institution of Education Queensland.

501 Ms Lawrence was called in support of the respondent’s case. She said of Auslan:

‘14. Auslan stands for Australian Sign Language. Auslan is the sign language of the Australian Deaf community. Auslan does not have an oral or written component. Auslan has a different linguistic structure (both as to syntax and morphology) than does English. This means that a child using Auslan will not automatically develop literacy in English, which is one of the major goals in schooling. Auslan is the natural language of Deaf children of Deaf parents who communicate using Auslan but cannot be considered the natural language of children born to hearing parents where it is not the language of the home.’

502 It can be seen that her evidence on that point is consistent with Dr Komesaroff. Ms Lawrence, however, does discriminate between deaf children of deaf parents and deaf children of hearing parents. As she rightly points out, Auslan may well be the natural language in a household of deaf people but would not be the natural language where the parents are not hearing impaired.

503 Ms Lawrence recognises that over the past decade there has been a trend in the education of deaf/hearing impaired students who use signing towards a bilingual-bicultural approach. The aim is to make students fluent in both sign language and English so that they can successfully interact with both deaf and hearing communities.

504 She said that in the Australian context the bilingual-bicultural educational programs support an approach using Auslan as the students’ first language and English (written and spoken, if appropriate) as their second language.

505 In such a program, Auslan is usually used as a language of instruction.

506 Ms Lawrence’s experience shows that the children who best respond to such an approach are deaf/hearing impaired children of deaf parents.

507 The use of Auslan itself does not guarantee acquisition of literacy skills. Auslan has no written form so when one talks of literacy skills, one means literate in English.

508 Ms Lawrence was involved, like Professor Power, in the introduction of the Total Communication Policy adopted by Education Queensland in the 1990s. She said that one of the purposes of the introduction of the Total Communication Policy was to ensure that there was a consistent method of instruction of deaf children throughout Queensland. There was a perceived need to ensure consistency, because if a regional area decided to adopt a different method of instruction (for example, Auslan rather than Signed English) then families with deaf/hearing impaired children could face a situation where, if they were obliged to move either from or to that regional area, they would be required to learn a different language. She has also been involved, as already indicated, in Education Queensland’s adoption of the bilingual-bicultural project.

509 Ms Lawrence was involved in a discussion paper in relation to the introduction of bilingual-bicultural programs and was part of the working group which met with a view to formulating a list of possible program options for Queensland.

510 Ms Lawrence said that it should be recognised that communication methodology for deaf/hearing impaired children has always been controversial. She said that a review of the literature generally showed no clear support for one approach over another.

511 There has, however, been increasing interest in bilingual-bicultural programs over the past decade.

512 In 1998 the Low Incidence Unit, in which she held the position of Assistant Coordinator Hearing Impairment Services, prepared overviews of five bilingual-bicultural programs; four of them Australian; and one Californian.

513 A working group was formed to review a discussion paper and the overview of bilingual-bicultural programs for the purpose of formulating a list of possible program options for Queensland. Ms Lawrence was a member of that working group. The working party also consisted of members of the deaf community, a deaf student, two mothers of deaf children, deaf teachers, and other people prominent in the education of deaf/hearing impaired children.

514 The working group formulated guiding principles and made certain recommendations for a bilingual-bicultural program in Queensland.

515 Seven guiding principles were agreed:

‘1. The deaf child’s need for early exposure to an accessible first language is of the utmost importance. For some deaf children, visual communication is the most accessible communication system and Auslan is a first language option.

2. Auslan and English are equally valued within the program. Fluency in both Auslan and English is a desired outcome of the program. Students will have the opportunity to learn in Auslan and in English.

3. Individual communication needs are valued and catered for in the program. Communication modes available in both Deaf and hearing cultures are available to students in the program; e.g. signing, speaking, listening, reading, writing.

4. Contributions from all stakeholders (including parents and the Deaf community) are valued and considered important in the functioning of the program.

5. Deaf and hearing cultures are equally valued within the program. Deaf and hearing role models are an integral part of the program, assisting in the development of deaf children’s healthy identity and helping them establish their place in both Deaf and hearing cultures.

6. The role of parents as caregivers and as important language models for the deaf child is critical for the success of the program.

7. The inclusion of Deaf and hearing staff who have or are aiming towards fluency in Auslan and English is critical for the success of the program.’

516 On 10 November 1999 Ms Lawrence wrote to the Assistant Director, General Education Services, recommending that ‘approval be given to extend the current array of services for deaf/hearing impaired students in Queensland to include a bilingual-bicultural program as outlined’.

517 She wrote, by way of background:

‘· The Action Plan: Educational Provision for Students with Disabilities 1998-2002 identified as a priority the need to examine the addition of a bilingual-bicultural program to the current array of service provision offered to deaf/hearing impaired students in Queensland. The need to include this option in the array of services has been commented upon by the Director-General of Education and in a recent HREOC report on service provision for students with disabilities.

· Internationally, there is a current trend in the education of Deaf students who use signing towards a bilingual-bicultural approach. This approach aims for students to be fluent in both sign language and English, and for successful interaction in both Deaf and hearing communities. In the Australian context this would mean the languages of instruction would be Australian Sign Language (Auslan) and English. Most Australian states have already established a bilingual-bicultural program for signing Deaf students in their capital city.

· In 1998 a discussion paper was produced by the Low Incidence Unit based on data collected from a literature review and interviews with bilingual-bicultural programs for deaf/hearing impaired students nationwide. A working group consisting of educators of deaf students, parents of deaf children and Deaf community members was formed to examine this discussion paper and to develop a possible model for a Queensland bilingual-bicultural program. In 1999, a reference group, consisting of representatives of the relevant stakeholder organisations, was convened to examine and provide feedback on the proposed. Attachment 1 outlines the membership of both the working group and the reference group. Unanimous support for the model proposed was received from the reference group (Attachment 2 outlines the guiding principles supported by the reference group and Attachment 3 outlines the recommendations supported by the reference group).’

518 In that communication, she traced the background to the recommendation making reference to the work of the Low Incidence Unit and the discussion paper which had been considered by the working group. In particular, she recommended that the introduction of the bilingual-bicultural program would mean that the language of instruction to deaf/hearing impaired children would be Auslan and English.

519 As she pointed out in her memorandum, the recommendation had implications for both recruitment and training of teachers to work in the program. There would be a need to educate staff to make them fluent in Auslan.

520 Ms Lawrence recommended that the program should be trialled in Brisbane for three reasons. First, because of the very low incidence nature of the population who would enrol; secondly, because of the need for the support of a large deaf community which is not available in country areas; and thirdly, because of the need for a transition from early special education to primary and secondary schooling.

521 She said a successful model for programs overseas was co-enrolment, which means that deaf and hearing impaired children should enrol in the same classes as their hearing peers. She suggested that, during early education, the ratio of deaf to hearing students would be 2:1, while at the primary level it should 1:2. She would therefore agree with Professor Power of a need to introduce Auslan into the appropriate communication community.

522 Importantly, she wrote:

‘Children of deaf adults (CODAS) are particularly suitable for inclusion in a coenrolment program as their first language is often Auslan so they make very good language models for deaf/hearing impaired children. It is understood that inclusion of these children in a coenrolled bilingual-bicultural program would attract no additional funding (i.e. there would be no requests for transport).’

523 It was recommended that the introduction of a co-enrolled bilingual-bicultural program in Queensland should commence in 2000 and extend to a primary program in 2001. She recommended that Yeerongpilly SEDU was a suitable site for the year 2000 program. She recommended that Toowong State School was a suitable site for the program to continue in 2001.

524 In 1999 a reference group was convened to examine and provide feedback on the proposals that had been formulated for the bilingual-bicultural model. Professor Power was a member of that reference group. Education Queensland was represented. The Committee for Hearing Impaired Children, Queensland Association of the Deaf and Australian Association of the Deaf were also represented. There was also a representative of the Queensland Teachers’ Union.

525 The reference group met on two occasions and provided unanimous support for the proposals which had been advanced by the working group.

526 In November 1999 the Acting Director-General of Education Queensland approved a proposal to trial the inclusion of a bilingual-bicultural program in the current array of services provided to deaf/hearing impaired students in Queensland.

527 Importantly, Ms Lawrence says in her affidavit:

‘95. Prior to the introduction of the bilingual-cultural program, Auslan had not been used officially as the method of instruction by the Yeerongpilly SEDU or for that matter, by any other facility administered by Education Queensland. Prior to the introduction of the bilingual-bicultural program, English had been the language of instruction in all other schools/facilities administered by Education Queensland.’

528 In accordance with her recommendation, the bilingual-bicultural program commenced at the Yeerongpilly SEDU in January 2000.

529 In 2001 the program was extended to Toowong State School.

530 Ms Lawrence addressed the question as to why the bilingual-bicultural program was not introduced earlier. She said:

‘113. There are a number of reasons why the introduction of the bilingual-bicultural program took some time. Salient reasons for that were:

(a) the divergence in opinion about what is the best method of instruction to use when educating children who are deaf/hearing impaired;

(b) the lack of definitive literature confirming what was only hypothesized at that time, that is, that using a bilingual approach may improve the education outcomes (especially literacy skills) for some profoundly/severely deaf students;

(c) the difficulties associated with discontinuing a program after it had been introduced. In my opinion, it could be quite detrimental to a child’s education to have a program removed from a child who had been introduced to it;

(d) the relatively small Deaf community in Queensland;

(e) historically, the parents of Deaf/hearing impaired children have supported an auditory verbal approach over signing. Most of the cochlear implant private providers in Australia were in Queensland. That seemed to have had, and still has, a big impact on the numbers of children who take a signing option;

(f) formerly, Education Queensland was divided into a number of regions. Requests from those regions were what drove change to programs. No region ever saw the implementation of a bilingual-bicultural program as a priority for the reasons I have mentioned in paragraphs (d) and (e) above. Since January 1998 Education Queensland has been restructured and whereas previously the management of this area of education lay with the regions, Education Queensland now has a school-based management. At a system level, there was then the action plan that allowed for change.’

531 The introduction of the bilingual-bicultural program meant that appropriate staff had to be recruited to demonstrate fluency in Auslan. For that purpose, the Griffith University was approached to ensure that teachers graduating from their programs in the future would have some skills in Auslan.

532 Because the Yeerongpilly SEDU and the Toowong State School SEC were the only two locations in Queensland which offered bilingual-bicultural programs, it was expected that no more than five language assistant positions would be required by 2005.

533 Ms Lawrence addressed the criteria that was required, in her opinion, for the program which she advances to be successful:

‘129. In my opinion, the following criteria is required for an effective bilingual-bicultural program:

(a) a critical mass of students to ensure a signing peer group;

(b) a supportive Deaf community;

(d) informed pedagogy to bridge Auslan to English;

(e) family support (i.e. parents who become fluent in the use of Auslan). Research shows that most families do not develop a high level of proficiency in signing, which can impede the child’s acquisition of a first (Auslan) language and later, English literacy; and

(f) a supportive unit within which to operate the program, including leadership, a commitment to the philosophical basis of the program, and the implementation of certain school practices such as the promotion of signing at school, valuing both languages and both cultures in the classroom and the like.’

534 Lastly, she considered the best method of communication when educating deaf/hearing impaired children. She said that there is a divergence of opinion amongst academics and teachers of the deaf as to the best method of communication. She said at par 160:

‘There are a number of methods of communication that have been supported by the various interest groups, including auditory-verbal, oral-aural, total communication, bilingual/bicultural and others. There is literature available that supports the use of most if not all of the methods available.’

535 She said there was also a large body of literature which shows that bilingual-bicultural education for deaf children is not a panacea but was extremely complex and often over-simplified. She referred to a number of references in journals and articles which supported that statement.

536 Her evidence was that, whilst there is continuing debate about the best method of communication with deaf/hearing impaired children, during the 1990s Education Queensland became slowly convinced of the benefits available in introducing a bilingual-bicultural program and communicating with deaf/hearing impaired students by way of Auslan.

537 Sister Mary Teresa Lawson was awarded a PhD for her research thesis with the Deafness Studies Unit within the Education Faculty of the University of Melbourne. Her research included investigation into the social communicative competence skills of students with profound hearing loss, with particular reference to play skills and the understanding that these students have of the rules of games.

538 She is a member of the Order of the Sisters of Mercy and the Senior Education Officer, Hearing Impairment Services, employed by The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane in its Equity Support Services Branch (Brisbane Catholic Education). She has been employed by Brisbane Catholic Education since 1980. She has been involved in the education of the deaf since that time. She is a member of the Australian Association of Teachers of the Deaf; the Audiological Society of Australia; and Deafness Forum of Australia.

539 In her position with Brisbane Catholic Education she comes into contact, in both formal and informal ways, with officers employed by Education Queensland.

540 She has been invited, from time to time, to participate in a number of working parties arranged by Education Queensland relating to the education of the deaf.

541 Brisbane Catholic Education has the responsibility of providing education to Catholic Schools in the Archdiocese of Brisbane. The Archdiocese of Brisbane is one of five Dioceses in Queensland. Each of the other Dioceses has its own Catholic Education office.

542 Brisbane Catholic Education administers 150 schools which cater for approximately 61,000 students.

543 Approximately 120 of those students have been identified as having high educational support needs relating to hearing impairment.

544 Brisbane Catholic Education supports those students by providing a Visiting Teacher service to students after enrolment in a Brisbane Catholic Education school from the date of enrolment until Year 12. It also provides a secondary unit for Years 8 to 12 in two secondary colleges.

545 A Visiting Teacher performs the same sort of service that Education Queensland’s AVTs perform. It was her evidence that there was a divergence in opinion about the best method of communication to use for instruction when educating students who have a hearing impairment. She identified a number of journals and articles to support that proposition. She said that at one end of the spectrum are those who advocate the use of Auslan, while at the other end of the spectrum are those who advocate auditory verbal therapy.

546 She said that Brisbane Catholic Education supported the philosophy of total communication which uses a variety of methods of communication, including signing (through Signed English) together with speech and listening. Brisbane Catholic Education follows the same philosophy that is adopted by Education Queensland.

547 The signing which is used within Brisbane Catholic Education is Signed English. Brisbane Catholic Education does not teach Auslan, or teach in Auslan, or interpret in that language.

548 Sister Mary Teresa Lawson said that Auslan has not been adopted by Brisbane Catholic Education for a number of reasons, two of which she identified; a communication community of Auslan users does not exist in any school administered by Brisbane Catholic Education; and there has never been a request made for Brisbane Catholic Education to use Auslan as a method of instruction.

549 Sister Mary Teresa Lawson said, as Ms Lawrence also said, that a community of Auslan users is needed for Auslan to be taught or used effectively.

550 She referred to the bilingual-bicultural program which had been introduced by Education Queensland and identified the two phases at Yeerongpilly SEDU which opened in 2000 and Toowong State School in 2001.

551 She expressed this opinion:

‘69. … I believe it has been necessary for Education Queensland to exercise caution in its decision to include a bilingual-bicultural program in its array of services to students with a hearing impairment for the following reasons:-

(a) the divergence of opinion about the best method of communication to use when educating students, which has been expressed in the past and which continues to be expressed;

(b) once a student has been enrolled in a bilingual-bicultural program it is difficult, if not impossible, to discontinue the program prior to the completion of the student’s schooling, without causing detriment to the student.

70. I support the implementation of bilingual-bicultural programs in learning environments where there is a sufficient cohort of students for each year level and where there are sufficient resources, particularly trained personnel.’

552 She said there is a body of literature to support the use of Auslan, but a further body of literature to support the use of other methods of communication including the auditory verbal method. Moreover, there is a body of literature to support a bilingual-bicultural approach. She is not aware, however, of much literature that supports the use of Auslan to the exclusion of all other modes of communication.

553 She expressed her views about the modes of communication available. In particular, she said that no one method of communication is the best for all children who are hearing impaired. The best method of communication for one student is not necessarily the best for another. She accepted that Auslan can be an effective method of communication to use in the education of children who are deaf when there is a communication community in Auslan. In particular, the use of Auslan can be effective when a child is immersed in an environment where Auslan is used universally, or at least by the majority of children within a class.

554 She said, however, that deaf children not only need to interact with each other but they also need to be able to communicate outside of the classroom with their non-hearing impaired peers. As she put it, a child’s education extends beyond the classroom and includes social communication between the child and other children in the playground, on the sports field and in other age appropriate social situations.

555 If a child is only educated in Auslan, then that child may not be able to communicate at all with that child’s non-hearing impaired peers. That would retard the child’s education insofar as it would affect the child’s social interaction with other children.

556 In cross-examination she was asked, and answered:

‘MR GRAY: Now, you’ve referred to this divergence of opinion about the best method of communication to use for instruction when educating students who have a hearing impairment. You refer to that in paragraph 44 in the first sentence of that paragraph. Can you elaborate – I know you’ve done a little bit of this already but can you explain what you mean by that?---You’re asking me to explain what I mean by the divergence about the best method of – divergence of opinion and best method of communication; is that right?

That’s right, yes?---As I tried to indicate earlier, there are a number of methods of communication for teaching children who are deaf or have a hearing impairment. In any one of those methods, researchers and educators have strong opinions for one in favour of the others. I’d like to give an example.

Yes?---There was a conference, a national conference recently, a couple of years ago now in Adelaide, the Australian Association of Teachers for Deaf National Conference and there were two strands in that conference on two methods of communication. Now, here we were a group of educators of deaf children from Australia and other countries; it was almost as if we were at two separate conferences and when we asked people to report on, you know, their learnings from the conference you would think they had been to two different conferences. So that’s how divergent the opinions really can be.

All right. And is it fair to say that there were two camps, the oralists at the one end and the other camp were the singers, to put it fairly broadly?---In past terms I would have agreed with that kind of a description but I think now – I think we’re – I think most educators – and this is just my personal opinion. I think most educators now are – I hope we no longer see ourselves in camps. I hope now we see ourselves as being able to be very tolerant of another – another person’s position. Maybe not agreeing with it, but tolerant of, and to me that is different to saying there are two separate camps.

HIS HONOUR: Nothing is black and white?---That’s right. Yes, your Honour.’

557 It was then put to her:

‘Well I suggest to you that the reality is that there’s no agreement among the experts that there’s one best way to educate all deaf children?---That is right, there is no agreement that there is one best way.

HIS HONOUR: That’s exactly what the witness has been saying?--- And that’s what I thought I’d said.’

558 Later, she was asked:

‘Is there any general agreement amongst academics and educators about the best method of signing to a deaf child?---I do not believe that there is general agreement. I believe there is divergence of opinion about that, your honour.

And do some academics and educators offer the opinion that the best method of signing is native signing language and some others of the opinion that the best method of communication by signed is by the signed English or signed language of the country?---That’s right.’

559 She was also cross-examined in relation to her proposition that there needed to be an assessment of each deaf child’s needs to determine the best method of communication. She was asked and answered:

‘Do you agree with this: that you need to assess an individual deaf child to decide which is the best method of communication for them?---Yes, I would agree with that. Are we talking – yes, yes, I will agree.

So it is actually not appropriate to have a broad-brush attitude to the education of deaf children in the sense of having one method for all deaf children?---I don’t think anyone has ever said that one method should be used for all deaf children.’

560 Sister Mary Teresa Lawson was also an impressive witness. Her evidence was valuable because she, unlike a number of other experts who gave evidence, was prepared to recognise that there were a number of methods of communication with deaf children and that the best method of communication for each deaf child depended, to an extent, on that deaf child’s special needs.

THE APPLICANTS’ EXPERTS

561 Apart from Dr Komesaroff and Ms Pardo, to whom I have already referred, the applicants relied upon two other academics – Professor Lane, a professor of psychology at a university in the United States and Professor Branson, an academic from Melbourne. The applicants also called people experienced in the education of deaf children. Two employees of Deaf Children Australia, apart from Veronica Pardo, were called. Ms Lynette Wilson is a psychologist and teacher of the deaf who has the responsibility of assessing the processing ability (IQ tests) of deaf children. Geoffrey Manton, the general manager of Deaf Children Australia, has had the responsibility within that organisation of placing deaf people in employment. The applicants also called Mr John Uri, who is profoundly deaf. He gave his evidence through an Auslan interpreter.

562 Like the respondent’s expert evidence, the evidence-in-chief of those witnesses was tendered in affidavit form. All were required and presented for cross-examination.

563 The respondent’s counsel endeavoured to establish that the academics and Ms Pardo were partisan and were using these proceedings for, what was put in cross-examination, political purposes. The political purposes were, it was suggested in cross-examination, the introduction throughout Australia of Auslan as the means of communicating with and teaching deaf children. For reasons I have given, I think that was one of these purposes. However, whether that purpose has devalued their evidence is a separate question.

564 Before I deal with the academics’ evidence, I shall address that evidence which is uncontroversial and which, to a certain extent, I have already acted upon.

565 Ms Wilson, who I have already said is a psychologist and a teacher of the deaf, swore her affidavit on 31 July 2003. Ms Wilson examined both Benjamin and Tiahna for the purpose of assessing their IQ. At the time of the assessment, Benjamin was 10 years and one month old. His results in 11 different testing tasks showed him to be at an age equivalent to somewhere between a five year old and an 11 year old.

566 Tasks which relied heavily on verbal instruction were difficult or impossible for him due to his poor linguistic skills. Tasks which relied on non-verbal methods were completed much more easily and near to an age appropriate level.

567 Ms Wilson is fluent in Auslan but was unable to communicate with Ben in that language because of his lack of fluency.

568 She offered the opinion that, because of Ben’s non-verbal scores which indicated that he was generally age appropriate, Ben’s under-achievement in the verbal scores were as a result of his lack of fluency in any language. She said that his very low level language scores and low verbal knowledge were a direct result of the lack of opportunity he has had to access a sufficiently easy database of the whole language.

569 She offered these opinions in her affidavit:

‘16. For Ben to improve linguistically, and therefore academically, I believe he must have consistent and extensive access to many users of a visual language such as Auslan. If Ben does not have this access, he will continue to perform many functions at a level far below his peers. This support should be given to him immediately, as he requires a huge amount of remedial work to assist him to make up for the learning he has missed. If he does not get this assistance immediately, I believe he will have permanent cognitive detriment. Not only does he need to be heavily involved in communicating in a sign language such as Auslan, but he also needs to watch others in conversation using a visual language such as Auslan. Even if Ben receives this assistance, I am uncertain whether his academic performance will recover.

17. If there is no change in the method of communicating to him in his educational facility, then it is very likely that by the end of his schooling, his self image will be that he is intellectually impaired, and he will be treated as such by others. This would very probably have a profound impact on his career and social life.’

570 Tiahna was assessed by Ms Wilson on 10 May 2003 when she was five years and three months old.

571 Ms Wilson assessed her intelligence quotient at between 98 and 108, focussing at about 103. Her verbal IQ was 98 and her performance IQ between 98 and 100.

572 Ms Wilson said that Tiahna’s general scores showed that she was well up into the average range across all of her skill areas.

573 She said in her affidavit:

‘8. I am informed that Tiahna’s family uses Auslan with her at home.

9. Tiahna’s good results, bearing in mind her hearing loss, reflect the fact that she has been able to access models of full and whole language in Auslan and English throughout her life, though I understand that this has been in her home environment and not from a child care or education setting.

10. I believe that for Tiahna to have the best access to a full education which will enable her to fulfil her potential, she must be taught by staff who use full and accessible Auslan in all its natural variations. She must also be able to continue to watch a wide range of users of Auslan in conversation.’

574 Ms Wilson impressed me as doing her best to assist the Court and I accept her evidence.

575 The general manager of Deaf Children Australia, Mr Manton, gave evidence of the difficulties which deaf people faced in obtaining employment. He has worked in the area of employment for deaf people for nine years and, during that time, has attempted to obtain employment for about 80 deaf people each year.

576 I accept his evidence that deaf people find it difficult to obtain employment. In particular, profoundly deaf people have significant difficulties in obtaining employment. Employers are reluctant to employ profoundly deaf people because the employers need to employ an interpreter so that communication can be established between non-hearing impaired people and the deaf employee. Employers are reluctant to be put to the added cost of a further employee simply to establish that communication.

577 I also accept, for no other reason than it is self-evident, that a profoundly deaf person, who has had less education than another profoundly deaf person, would face even more difficulties in obtaining employment. In his affidavit, which was sworn on 12 August 2003, Mr Manton said:

‘18. For a person such as Benjamin Devlin, from reading the relevant material, it is clear that his access to education is compromised, and if he does not receive immediate and full access, the likelihood of him gaining tertiary qualifications is poor. In terms of him obtaining a university qualification, this would be almost impossible unless urgent intervention in the form of equal access occurs. This then will impact on his earning capacity for the rest of his life.

19. Insofar as can be predicted, I would expect that in the absence of a full recovery of his educated related skills by the end of his secondary education, Benjamin Devlin will suffer an economic shortfall in his earning capacity.’

578 John Uri, as I have said, is a profoundly deaf person. He is an Auslan tutor who teaches classes in Caboolture and Maroochydore.

579 In November 2002 Mr Uri attended the Noosaville Primary School, where Ben was then a student, at the request of Ben’s mother to give a short presentation on deaf culture and the Auslan language. Gail Smith, Tiahna’s mother, interpreted the presentation. Two teachers were present, Ms Mosely and Mrs Enders, neither of whom could understand him because they were not acquainted with Auslan. Both of those teachers later came to his Auslan class. Whilst they could communicate in some respects in Signed English, they could not communicate in Auslan. Ms Mosely and Mrs Enders did not claim to be proficient in Auslan.

580 Mr Uri also said that, as a deaf person, Auslan is the most appropriate way for teachers to communicate with deaf students. Auslan, he says, has been formally recognised whilst Signed English has not. He said that to become fluent in Auslan one has to study the language in a similar way to studying any other foreign language such as French or German.

581 I was impressed by Mr Uri as a person. However, his evidence was uncontroversial and did not advance the case one way or the other.

582 The speech pathologist and audiologist, Ronald Morris, swore three affidavits; two on 15 August 2003 (one in relation to Ben and the other in relation to Tiahna); and a further affidavit on 26 March 2004 also in relation to Ben.

583 Mr Morris offered the opinion that Ben had a profound, predominantly sensory-neural hearing loss; bilaterally tympanometry indicated the presence of middle-ear dysfunction on the right and significant negative middle-ear pressure on the left. He noted that Ben wore hearing aids and, as noted earlier, threshold testing ‘indicates that Benjamin has access to all but the very softest speech sounds in ideal listening conditions at the distance of 1 metre from the speaker’.

584 Mr Morris assessed Ben’s receptive language and Ben obtained a score of 22:

‘… which suggests a severe delay/disorder in receptive language development. This score is equivalent to the 7th percentile for a year 1 child. Benjamin is experiencing significant difficulties understanding common everyday concepts such as:

Corner, row, whole, beginning, other alike, match, always, and before.

This would suggest that he would experience significant difficulties in following the language in a classroom environment. The Boehm [the test employed] was signed to Benjamin so this represents his best possible comprehension performance. Even if all of the instruction of the class was signed to him he would experience difficulty understanding and learning because of his very poor language development.’

585 Mr Morris also assessed Ben’s expressive language and, on the Renfrew action picture test, Ben obtained an information score of 23½:

‘… which is well below the expected range for his age and represents an age equivalent score of 4 years and 5 months. Benjamin’s score for grammar was 6 which is again severely below the normal range for his age and represents an age equivalent of less than 3 years.’

586 Assessment was made of Ben’s semantic skills (vocabulary) and he obtained an age equivalent score of five years.

587 Mr Morris summarised his opinion:

‘Benjamin presents with severely delayed/disordered speech and language skills. He is demonstrating both receptive and expressive language skills at around preschool level. His speech production skills are much poorer than one would expect given his degree of deafness and his measured aided thresholds.

Benjamin would not be able to cope with the language demands of a Year 5 classroom even if all the language was signed to him. Similarly his functional academic levels will also be determined by his level of language development. His difficulties of reading, especially for meaning, are consistent with his severe language impairment.’

588 He made the following recommendations:

‘1. Benjamin return to fulltime use of his hearing aids since he will not be receiving language except via signing or speech without them. With his severe speech and language deficits every opportunity must be taken to learn speech and language skills.

2. Further speech perception testing be carried out at his next Australian Hearing review to exclude the possibility of sensory-neural distortion as a cause for his poor speech production skills.

3. Guidance Assessment be carried out (if not done previously) to identify strengths and weaknesses in his learning.

4. Further language evaluation to assess receptive vocabulary, receptive syntax and expressive syntax to assist in language programming.

5. Full assessment of listening skills.

6. Continued use of an IEP to direct learning in the classroom. IEP goals should reflect Benjamin’s needs in language.

7. Speech therapy to focus on Benjamin’s use of speech physiology and then on intelligibility. Speech therapy input into Benjamin’s school language programme is also required.

8. Review of speech and language skills in 12-18 months to monitor his progress.’

589 Mr Morris carried out an assessment of Tiahna on 2 December 2002. Four language categories were evaluated; word meaning and vocabulary; grammar; comprehension; and appropriate use of language in different situations.

590 Mr Morris said that the assessment showed that Tiahna has basic language functions for spoken language within the normal range for her age. On his understanding, Tiahna existed in a good language environment because she was exposed to Auslan at home. She has developed excellent language skills due to early and consistent sign language input and he recommended that that continue.

591 He said:

‘Given Tiahna’s good oral language skills she can be expected to cope in a regular classroom environment but due to the degree of her hearing loss she would be unlikely to comprehend all of the instruction easily. She would require significant amounts of pre and post teaching to reach her educational potential if an oral only approach were used in the classroom. Tiahna would benefit greatly from access to signing in her classroom and as she has been exposed to Auslan from an early age this would be the most appropriate signed system to use with her. The provision of appropriate sign language support in the classroom will allow Tiahna to achieve at the level of her potential, without it she would cope but not reach her full educational potential.’

592 I accept Mr Morris’ evidence in all respects.

593 Mr Morris’ evidence was not only important for the purpose of assessing the two children individually but his evidence allows for a comparison of their levels of achievement.

594 Ben has at least average to above-average cognitive ability. That was established by Ms Macdonald’s report in 1998. However, compared with Tiahna, his level of achievement is significantly less in all respects.

595 Tiahna has been in an environment where Auslan is a first language. Its benefits seem to be established by her achievements.

596 Wendy Wallis has a profoundly deaf son, Levi, who, at the time of swearing her affidavit on 4 December 2003, was in Grade 7 at Warwick East State Primary School. She said she became aware of the benefits of an Auslan education and spent some time lobbying Education Queensland to provide her son with the services of an Auslan interpreter. She said they responded to her requests only when she threatened to go to HREOC and to Court. Education Queensland then assigned an Auslan interpreter to Levi for 22 hours per week. Notwithstanding Education Queensland said that it would monitor Levi’s progress, it has not done so.

597 Ms Wallis said the provision of an Auslan interpreter has been of considerable benefit to Levi. He has learned the English language at school. He still has trouble with English words but she expects him to be at the same level as his hearing peers when he leaves primary school.

598 Not only has it helped him in his education but it has also helped him in his social interaction with his peers. Many of his hearing friends have been taught Auslan signs by Levi and they communicate with him in that fashion.

599 Ms Lawrence addressed what she described as the ‘Warwick project’ in her evidence-in-chief. She said:

‘145. In 1995 the issue of presenting Auslan as the method of instruction in programs for deaf/hearing impaired students had been discussed. However, the need of deaf/hearing impaired children to develop fluency in writing and reading in English for educational and vocational purposes was considered to be a high priority for any child. At that time, the proponents who supported the use of Auslan as “S”’s first language and English as “S”’s second language had not documented well the transition phase for such children. Supporters of Signed English argued that the child must be immersed in the visual presentation of English in order to gain English literacy skills.

146. In 1995, permission was sought, through the Deputy Director-General (Curriculum) for preliminary discussions to occur between officers from the Student Disability Unit, Assistant Coordinator, Low Incidence Unit and Assistant Director (Studies), Darling Downs Region concerning the possibility of developing a small research project to examine the use of Auslan for “S” in the classroom environment. The situation that we sought to create in Warwick was never considered to be a bilingual-bicultural program.’

600 She said, however, that there were special reasons why the child should receive full-time teacher aide interpreting in Auslan. She identified those circumstances:

‘150. There were a number of circumstances in this particular case that supported the proposal that “S” receive full time teacher aide to interpret. These circumstances included the following:

(a) the family’s commitment to the use of Auslan;

(b) “S” was a “one off” case in a particular setting;

(c) the involvement of Griffith University. The University could provide valuable information for the Department about the matter of Auslan used within schools.

(d) the fact that Warwick is relatively small and distant from Brisbane (and so provision of any service to a significantly deaf child would be problematic);

(e) there was no bilingual-bicultural program in Queensland at the time. The literature that was coming through supported the use of Auslan in a bilingual-bicultural setting. The bilingual-bicultural program in Sydney had been introduced.’

601 Ms Wallis’ evidence did not advance any party’s case.

602 Professor Lane has a Master of Arts in Psychology and a Doctor of Letters in Linguistics. He has published extensively both books and papers. He has lectured around the world. He gave his evidence in a straightforward and direct fashion. He was not defensive, nor did he appear in any way threatened by cross-examination.

603 Professor Lane is currently the University Distinguished Professor at North-Eastern University in Boston, a position he has occupied since 1988. He has received a number of honours from different institutions, all in relation to his association with the education of deaf children.

604 His evidence was quite unambiguous. He said in an affidavit sworn on 18 August 2003 in relation to Ben’s case:

‘4. There is no doubt that the most accessible language for deaf children such as Benjamin is the national language of the Deaf; in Australia, this is Auslan. Because this boy is profoundly deaf, he has no usable hearing for oral communication; he is a visual child, and Auslan is a visual/spatial language, and therefore it is the language most comprehensible to deaf people like Benjamin. Research shows that Deaf children who acquire signed language early have an advantage in school over their peers who do not. Furthermore, fluency in signed language and fluency in the national written language are strongly correlated.

5. Signed English is a signed code of English; it is not a natural language. It was invented in an effort to help Deaf children learn English but solid evidence is lacking that it accomplishes that. It is not suitable as a form of communication and is not used as such by Deaf adults or Deaf children outside of class. Total communication is not a language but a strategy for classroom communication that calls on the teacher to use a national signed language among other means. Teachers who are not fluent in signed language fall back on signing strings of individual signs in English word order without the grammar of the signed language. This is largely unintelligible to Deaf children.’

605 Professor Lane said that Ben ought to undergo formal and informal instruction in Auslan to raise his level of competency. That could be done by having Ben associate with deaf children and other deaf people.

606 He said:

‘11. Benjamin who is 10 has a non-verbal IQ of a 10 year old, yet he is failing in school and has no language, neither English nor Auslan, with which to communicate and socialize. This can be remedied with two measures: first, ensure that he has extensive contact with other Deaf children and Deaf adults so that he acquires Auslan as quickly as possible. Second, use Auslan as the language of instruction with Benjamin. Without these measures, we must expect that his outcomes will diminish even further over the course of his education.’

607 He gave similar reasons for why Tiahna should be instructed in Auslan. He said of Tiahna:

‘6. Tiahna should have formal and informal instruction in Auslan to maintain and develop her competency, including associating with Deaf children of Deaf parents, who acquire Auslan as a native language and with other fluent users.

7. If Tiahna cannot have teachers who use fluent Auslan, then she must have interpreters who are fluent in Auslan, so that she can understand the teacher and can participate as fully as possible in her education.’

608 Professor Lane was cross-examined on those affidavits and also two further affidavits which he swore in answer to the respondent’s expert.

609 It is not necessary to go to those further affidavits in any detail. They identify the argument which is central to these proceedings and Professor Lane’s own opinions which are summarised in pars 4 and 5 of his first affidavit in Ben’s proceedings.

610 In cross-examination, Professor Lane agreed that there were still schools in the United States who used Signed English as a method of communication with deaf children. He does not agree with that method of instruction. He accepted that there were others who held different views.

611 Importantly, Professor Lane accepted that there has been an evolution of scholarly opinion in relation to the best method of communication with deaf children. He was asked and answered:

‘You are giving this affidavit, I suggest, as being of general application, that is, in the United States and in Australia you’re suggesting it is worldwide. Was that what you intended to convey in paragraph 32?---Yes. I did not intend it to convey that throughout the world you’ll find these discredited practices abandoned. I’m sorry to say that’s not the case. What’s been abandoned is the views of informed scholars, teachers, educators, psychologists and others, who at one time believe aural education was the way to go and then believed total communication was the way to go and then believed signed English was the way to go and now appreciably believe that fluent communication with the child is the priority and that’s the way to go. So there’s been an evolution in scholarly opinion, and slowly re-educational system, very slowly, evolves in that direction, more quickly in some countries and very much more slowly in others.’

612 He also accepted, as I have said, that over a period of time different views have been held by academics and by educators in relation to the best method of teaching deaf children. He said that the debate has been galvanised by those people recognising that all of the methods used, including Signed English, have not been successful in educating deaf children.

613 I accept Professor Lane’s evidence that academics and educators have gradually changed their views as to the best method of teaching profoundly deaf children. It has been an evolution.

614 In my opinion, his evidence does not markedly differ from that of Professor Power or Ms Lawrence. All of them recognise that there has been a march towards Auslan. All of them recognise that, even now, some academics and educators do not accept Auslan as the preferred method of communication but would still argue for communication in Signed English. All of them are agreed that that group is diminishing.

615 Professor Janet Branson is a Professor of Education and Director of the National Institute for Deaf Studies and Sign Language Research at La Trobe University. She has held that position since 1996. She has been involved in the academic study of education for 40 years. Since 1990, she has focussed her research and academic work generally on the education of deaf people. She has a special interest in that subject because her daughter and her son-in-law are both profoundly deaf.

616 Professor Branson has an extraordinarily impressive academic history. She has been a teacher in Universities since 1971. She completed her PhD in 1976. She has taught in China and the United States of America and has been an Honorary Professor of a University in Thailand.

617 Professor Branson is not only an academic and a teacher but she is also a researcher and she has carried out a number of research projects both in Australia and overseas. She has written two books and another one is pending. She has published numerous articles and produced numerous videos.

618 Professor Branson also established the National Institute for Deaf Studies and Sign Language Research. She has secured nearly $2 million in grants for research and curriculum development, including the writing, filming and publication of the ‘Auslan Curriculum for First and Second Language Users’. She has conducted research on the linguistics of Auslan and on the history of the use of sign language in Deaf Education in Australia, Britain, the United States and Thailand, and published the results of her research. She has researched and published on the sociology and sociolinguistics of deaf communities in Australia, Britain, Thailand and Indonesia.

619 Professor Branson not only has an impressive list of achievements, she was also an impressive witness. Her opinion was that Signed English is an inappropriate medium for the education of deaf children. Signed English, she said, reinforces the control over the lives of deaf children via linguistic and cultural deprivation. Signed English deprives deaf children of a language and a culture by seeking to assimilate those children into the hearing world via the use of English. English is an aural language which requires the ability to hear for successful use. Whilst Signed English may give some understanding of the English language, that understanding will always be limited and partial. That is because Signed English, itself, is not a language. It is not used within the deaf community. It does not have any of the natural dynamics of a natural language. Signed English users are often isolated from their own deaf community. Signed English can create confusion. Signed English is based on the grammar of written English, not spoken English. Thus, in ordinary conversation, Signed English does not accompany spoken English, because Signed English is structured in a different way than spoken English.

620 Her evidence was that there was a substantial amount of theoretical and empirical evidence that Auslan is the most effective media of instruction for deaf children. There is corresponding evidence in other countries that native sign languages in those countries are the most effective media.

621 She said that there is a need for deaf children in Australia to be educated in Auslan from birth. That is already the case in Sweden and Denmark, and research in those countries show that those deaf students using their national sign language as their first language, and the language of instruction, effectively access spoken languages as a second language.

622 She said that research shows that the acquisition of a native sign language as a first language for deaf children is basic to the acquisition of a second language, such as English, and to education generally.

623 She said that most academics and teachers of the deaf share her opinion, that is, that the only appropriate medium for teaching deaf students is Auslan.

624 As I understood her evidence, the majority of those people have shared that opinion since some time in the middle 1990s in Australia.

625 Professor Branson assessed both Ben and Tiahna.

626 It was her opinion that Ben has been deprived of the language and culture which would best meet his social, emotional, linguistic and cognitive needs. As a result, Ben is significantly below his peers in relation to language and cognition and was unable to engage in tasks appropriate to children of his age. She said that she was unable to engage him, either through the use of Auslan or English-based signing or speech, in a range of activities including story-telling, simple mathematics and puzzle completion.

627 She said that Benjamin’s poor linguistic and educational outcomes are consistent with the findings of research on deaf children educated through total communication methodologies. She said that Benjamin’s linguistic and cultural needs should be recognised by giving him complete access to Auslan, by way of remedial program, to bring him up as close as possible to his peer equivalents, as well as Auslan through his schooling to meet his access needs.

628 It was her opinion that Ben needed to have access to an education which was based on bilingual principles with Auslan as his first language and English as his second language.

629 She said that total communication is a philosophical approach to teaching deaf children which, inevitably, has an inadequate outcome.

630 Professor Branson met with and observed Tiahna in May 2003 over the course of one and a half hours. She said that Tiahna demonstrated competencies consistent with someone who has been exposed to Auslan as a first language from birth. She said in an affidavit sworn on 7 August 2003:

‘25. … Given her family background (deaf grandparents, bilingual mother, father a second language learner of Auslan), her parents and extended family have provided her with the optimum environment for age appropriate linguistic and cognitive development.’

631 She observed that Tiahna expressed a preference for oral expressive communication and a preference for signed receptive communication. This, Professor Branson said, was consistent with research into bilingualism in deaf children. She said that Tiahna’s preference for speech with hearing people should not be taken as a positive reason to support a monolingual English-based education for Tiahna. The preferences which Tiahna exhibits are a direct outcome of her bilingualism because she has the ability to choose the form of communication best suited to a particular exchange. She said:

‘28. Despite the progress Tiahna has made with speech, she remains severely hearing impaired. This means that she will not access classroom communication through auditory means alone. There can be no question that Tiahna requires an accommodation of that hearing loss. Based on my own research in this area and that of my colleagues both within Australia and internationally, the nature of that accommodation should be consistent with Tiahna’s needs, that is, a signed based bilingual education.

29. Signed English should not form the basis of the accommodation of Tiahna’s educational needs. To begin with, Tiahna does not use Signed English. She already has access to a sophisticated language system on which she has founded substantial competencies. In addition, Signed English will not meet her access needs as efficiently and effectively as Auslan. A continuation of her bilingual status via Auslan as a first language and English as a second language will best meet her social, emotional, linguistic and cognitive needs.’

632 In her cross-examination, Professor Branson said that she has held the opinion that children should be educated in Auslan as a first language for more than 15 years.

633 She said that when she first formed that opinion there was a growing consensus amongst academics that deaf education should proceed in that fashion.

634 It is apparent from her evidence that the impetus for change arose in the United States. In her evidence she said:

‘Well, were there any educators who supported the opinion you’ve expressed today, 15 years ago? I’m dealing now with educators, not academics?---Oh, yes. Yes. There certainly were teachers in the schools and there was a gradual – a slowing ground-swell in some of the schools to begin to change the academic practices. At the same time, you have to remember, in America there was a very strong deaf rights movement. And we’re looking at the period where we had black rights, women’s rights and then disability rights. And out of those disability rights, the deaf began to identify as a community and as a group who could make sense about their language and their culture, which they’d never been able to before, because nobody would listen to them. And so they began to impact on education. They began to demand that – that, in fact, they should have had a better education, that they should be able to read and write properly. They should be able to have good jobs the same as everybody else. And so the older deaf felt very much that they had been cheated out of their schooling, and so they very strongly began to support his move. And some of the moves came from the deaf community itself and at Gallaudt University in America, which is the only “deaf university” – in inverted commas – in the world, the president, in fact – when the new president was chosen, they chose a hearing person – and the students, in fact, got up in arms and that person had to resign and they had a deaf president. And that president is still there now. So there’s been a – if you like, a continual ground-swell, and I think one of the best things that’s happened is that there’s now a much stronger liaison, particularly in Victoria – I can’t talk about Queensland – where the deaf community themselves support very strongly many of the teachers in the schools, and we’ve just, in fact, completed for the Ministry of Education down here, a retraining program where virtually all teachers of the deaf have come back and retrained in Auslan. Because when they did their training, there was no Auslan. And we’re seeing an increasing number of deaf students coming into University now at the undergraduate level. We’re seeing them coming in at special entry. We’ve had three full complete masters degrees by research now. We’ve got out [sic] first two PhD candidates, which is fantastic. We would never have seen that 15 years ago.’

635 She was then asked and answered:

‘Professor Branson, has it now reached a stage throughout Australia that in education circles educators subscribe to your opinion?---Well, I don’t move in all the educational circles, I’m afraid, in Australia. But I can only speak from what I know of it in Victoria and in Victoria the Department of Education is very strongly supportive; interpreters are provided in schools. We provide now – Auslan is taught as a subject to schools from very early on and at the University itself we provide programs for parents, for doctors, for psychologists who wish to in fact – to be able to deal with deaf people in their first language. So there will always be some educators who don’t agree, who will hold on. But in the long run there has been enormous change of opinion and the results are speaking for themselves.’

636 Professor Branson said that in Victoria now there is definitely a majority of educators who would accept the view that Auslan is the best language for education of the deaf. She was not able to speak of the educators in Queensland.

637 She said that there is a considerable lead time required to educate sufficient teachers in Auslan. She said:

‘Well, yes, because the requirements are set by the State Departments of Education and that is a three year undergraduate degree plus a one year post-graduate diploma or a four year Bachelor of Education. I mean, some people elect to do additional Bachelor of Educations but that’s the same regardless of whatever you teach.’

638 She would not agree that a consensus had not been reached in the mid 1990s or that the debate was ongoing.

639 Dr Komesaroff gave her evidence-in-chief in a somewhat unusual way. She exhibited to an affidavit in both matters her curriculum vitae and a copy of her thesis which was submitted for her degree of Doctor of Philosophy.

640 Dr Komesaroff is a lecturer at the School of Social and Cultural Studies in Education at the Faculty of Education at Deakin University. In 1979 She obtained a Diploma in Teaching at Melbourne State College. In 1988 she obtained a Graduate Diploma in Literacy and Language Education from the South Australian College of Advanced Education. She is accredited as an Auslan Level 3 interpreter by the National Accreditation Authority for Translators and Interpreters (NAATI) in 1992. She obtained a further Graduate Diploma in Special Education from the Deakin University in 1994. She was admitted to the degree of Master of Education at Deakin University in 1995 and obtained her Doctorate in Philosophy in 1999.

641 As already indicated, she is a lecturer at the Deakin University. She is also an educational consultant and schools consultant. She describes herself as a primary teacher and an adult literacy educator. She is a professional interpreter in Auslan.

642 She is a member of a number of professional associations including:

Australian Language and Literacy Educators Association

Australian Teacher Educators Association

Australian Association of Researchers in Education

Australian Association of the Deaf

Victorian Association of the Deaf

Australian Association of Teachers of the Deaf.

643 Dr Komesaroff has written a number of publications relating to education and, in particular, education of the deaf.

644 Her thesis was submitted in October 1998. It provides a summary:

‘This thesis argues that issues of power, control and legitimacy are central to language practices in deaf education. It documents the competing beliefs and attitudes about language practices held by teachers of the deaf, policy-makers and other stakeholders in deaf education. Barriers at the system, school, and staff level perpetuate instruction through English and restrict the introduction of Auslan, the language of the Deaf community.

The main case study provides evidence of the way in which change can be achieved. Teachers’ dissatisfaction with student outcomes and established practices provided a strong impetus for the adoption of bilingual education. The language practices of most teachers of the deaf and the approach taken to teacher education is challenged by this research. This thesis argues for a redefinition of deaf education based on a cultural perspective of deafness, an approach supported by bilingual theory and consistent with the movement amongst the deaf towards self-determination.’

645 She also provides an abstract in the thesis which is worthwhile reproducing:

‘This study takes place at a time of increasing interest in Auslan, the language of the Deaf community in Australia. There is a movement in deaf education nationally and internationally supporting bilingual education for the deaf based on the view that deaf people belong to a cultural and linguistic minority. In Australia, an increasing number of schools include Auslan as an additional subject in the curriculum and bilingual programs have been introduced into several schools during the 1990s. Established language practices, in particular oral education and contrived systems such as signed English, have attracted significant criticism from a growing number of educators and researchers. The underachievement of the deaf in education has added weight to their argument for change.

The main body of data in this study includes a review of the literature concerning language practices and bilingual education, interviews with teachers of the deaf and other stakeholders in deaf education, and case studies of three educational sites. Participants’ beliefs and attitudes about language practices provide evidence of the competing paradigms in this field. A system which is dominated by hearing educators who deny or marginalise the language and culture of the Deaf has constructed Deaf people as disabled. The perspective of bilingual educators is that the deaf belong to a cultural and linguistic minority and their language and culture are positioned as central to deaf education. This thesis considers the political nature of education and the relationship between language and power evident in deaf education.

This thesis contends that the language policy and practices that dominate deaf education reflect the values and interests of hearing professionals and are based on beliefs that cannot be supported by language learning theory or the experiences of deaf people. The rhetoric surrounding communication method masks the underlying conflict over language use. It is no longer adequate to view the debate as either modal, a question of using oral or signed language, or methodological. The political nature of language practices in deaf education has been identified in this thesis by comparing the beliefs underlying the dominant and marginal discourse in deaf education. The three case studies highlight the difficulties facing teachers who want to adopt new practices.

Language practices continue to be debated in the literature on deaf education. Although there is now widespread acknowledgment of the legitimacy of deaf people’s language and culture, the adequacy of native sign language to enable deaf children to acquire English literacy is still argued by many educators. Support for bilingual education in the Australian literature has grown, although some researchers continue to support signed English despite the considerable criticism of this approach. Auslan is viewed by some as a possible addition to the curriculum and not incompatible with established practices. Several teachers and educational administrators in this study expect instruction to continue through the simultaneous use of spoken and signed English, with or without the addition of Auslan as an ancillary subject.

An analysis of the data has identified the personal and structural barriers to a change to the language policy and practices which dominate deaf education. Without proficiency in Auslan or knowledge of bilingual pedagogy, teachers of the deaf have little option other than instructing through English. Some teachers in this study who have questioned established practices are forced to continue teaching through signed English in the absence of other language skills. These practices are entrenched in deaf education because there is little or no instruction in Auslan in teacher education, on-going professional development programs, or requirement for teachers of the deaf to be proficient in Auslan. State, national and international organisations of Deaf people call for changes to deaf education, but the views of Deaf leaders are largely ignored. This thesis views the situation of the deaf as an example of a minority community oppressed by a dominant group through the medicalisation of deafness and denial of language rights.

A significant contribution of this thesis is the description and analysis of two school communities which achieved change to their language policies. One has an established bilingual/bicultural program for deaf students; the other investigated and embraced bilingual education during this study. Teachers’ dissatisfaction with student outcomes and established practices in deaf education provided a strong impetus for change. In both cases, a change in language policy was legitimised and supported by senior teachers of the deaf. In the main case study, teachers and parents sought an understanding of Auslan and bilingual pedagogy and I provided a model and explanation of these practices. The importance of parent education and professional development for teachers of the deaf was highlighted in this study. I documented my approach to working with parents and teachers, and discussed their changing practices and beliefs. In all case studies, the need for professional development for teachers of the deaf and access to native language models through the employment of deaf staff has been identified.’

646 The thesis itself demonstrates, as the abstract shows, that at the time of writing there was increasing interest in the language of the deaf community in Australia, namely Auslan.

647 The thesis itself further demonstrates the passion which Dr Komesaroff exhibits as an advocate of the introduction of Auslan as the preferred method of communication with deaf students in Australia. It also shows Dr Komesaroff’s disdain for the use of Signed English as a method of communication with deaf children.

648 As the abstract shows, the thesis was written during a time when there was ‘a movement in deaf education nationally and internationally supporting bilingual education for the deaf based on the view that deaf people belong to a cultural and linguistic minority’.

649 That statement is consistent with the evidence of Ms Lawrence and Professor Power that during the late 1990s there was such a movement which recognised advantages in bilingual education for the deaf. Of course, they said that the movement was wider than bilingual education as it included a bicultural aspect. It is also not inconsistent with the evidence of Professor Lane and Professor Branson.

650 The abstract also recognises, as did the other academics, that not everyone agrees that a native sign language will enable deaf children to acquire English literacy. As Dr Komesaroff has said in her abstract:

‘Support for bilingual education in the Australian literature has grown, although some researchers continue to support signed English despite the considerable criticism of this approach.’

651 More particularly, from Dr Komesaroff’s point of view, the abstract shows and the thesis supports her opinion that the use of teaching deaf children through Signed English is entrenched in deaf education for the reasons set out in that abstract.

652 She is a fervent critic of teaching in Signed English and she makes that point time and time again in her thesis.

653 Dr Komesaroff’s view is that the perpetuation of education of the deaf using Signed English continues to disempower the deaf and fails to recognise the deaf as a minority which has its own language and culture. No change will occur whilst the present educators of the deaf continue in their roles, because they do not have the language of the deaf, namely, Auslan.

654 She is of the opinion that it is necessary, therefore, to change the system rather by way of revolution rather than evolution and to impose upon the educators an obligation to instruct deaf children in Auslan.

655 She is a vociferous campaigner for such a result.

656 It was submitted that I should scrutinise Dr Komesaroff’s evidence carefully because she is a passionate advocate for the adoption of Auslan as a mode of instructing deaf children. The same submission was put in relation to all of the applicants’ experts, including Professor Lane, Professor Branson and Ms Pardo. I reject the submission insofar as it relates to Professor Lane and Professor Branson. I accept it in relation to Dr Komesaroff and Ms Pardo.

657 In Chapter 1.2 of her thesis Dr Komesaroff wrote:

‘Deaf education in the 1990s in Australia has seen Auslan introduced into some schools and a growing number of bilingual programs established. The rhetoric in most states is that parents are provided with a choice of communication methods in a variety of educational settings. Deaf education, however, continues to be dominated by educators who are, almost exclusively, hearing and lack competency in Auslan. The language which continues to dominate deaf education is English. There has been little acknowledgment by most educators that established practices conflict with bilingual theory or the movement among the Deaf towards self-determination. The establishment of bilingual education has begun in Australia, preceding the recruitment of Deaf adults into teacher education or structured professional development programs in Auslan and bilingual pedagogy. If Australia is to follow the trends in other countries in adopting bilingual/bicultural (BiBi) education for deaf children, major changes in teacher education will be needed. In this thesis, I argue for a redefinition of deaf education based on a cultural perspective of deafness.’ [Footnotes omitted.]

658 In Chapter 2.8 of her these (at page 28), Dr Komesaroff writes:

‘There is disagreement in the Australian literature over the efficacy of language practices in deaf education. While interest in Auslan and bilingual education grows, some researchers and educators still support signed English. By the time Auslan was recognised as a community language in the late 1980s, signed English was already entrenched in deaf education in Australia. This section describes the arguments put forward on both sides of the debate.’

659 Dr Komesaroff then discussed a study by Professor Hyde and Professor Power in 1991 who concluded that it would be premature to abandon Signed English.

660 She traced the further studies since that time, identifying, I think, exactly the propositions put forward by Professor Power and Ms Lawrence that in the 1990s there was a movement toward the adoption of Auslan as a method of communication with deaf children.

661 Her study, it seems to me, identifies the caution which educators of the deaf have shown in adopting the radical approach, at least for them, in jettisoning Signed English as the method of communication and adopting Auslan.

662 Her thesis is replete with references to the continuing debate about the advantages of the different forms of signing in educating deaf children and the increasing awareness amongst academics and educators of the deaf of the benefits of Auslan.

663 Indeed, in Chapter 10.6 (at page 207) she wrote:

‘The central argument in this thesis is that deaf education suffers from the monolingual/monocultural perspective of educators. As a bilingual researcher, I can view the debate from both an English-only and Auslan perspective. Having acquired more than one language other than English during my primary and secondary education and having acquired Auslan in my late 20s, in which I am now qualified as a professional interpreter, I can appreciate the task facing teachers and parents learning a new language. There is an urgent need for more research which is grounded in the perspective of the Deaf, this study representing one of a small number of doctoral dissertations carried out by researchers fluent in Auslan and involved in the Deaf community in Australia (see Johnston, 1989b).’

664 Whilst Dr Komesaroff denied in cross-examination that she was an advocate for Auslan, but I reject that denial.

665 In my opinion, Dr Komesaroff is an advocate for the introduction of Auslan and is anxious to have Auslan adopted as a method of communication with deaf children.

666 Everything she has published, and which has been put before me, shows her to be an advocate. If her advocacy is a result of her research and her observations as an educator of the deaf, that does not make her any less an advocate.

667 Dr Komesaroff was not a good witness in cross-examination. She made the mistake of attempting to debate with the cross-examiner. She avoided answering questions by redefining terms. She was evasive on matters which she saw as not supporting her position.

668 I will give an example, although her cross-examination contains similar examples:

‘Yes, you do, and we’ll come to that, but for his Honour’s immediate understanding, in the state education systems across the Commonwealth of Australia, there is no state that adopts teaching hearing impaired children in Auslan as the norm, is there?---No, that’s not correct. Tasmania, all deaf children who are sign language users in Tasmania, in fact, receive bi-lingual education.

That wasn’t my question. There is no State Education Department across the Commonwealth which has Auslan as the norm of teaching hearing impaired children, is there?---I’m a little unsure by your meaning of norm, whether you’re saying that’s the largest number of children that are taught in that way?

No. That is the way, the ordinary way, in which they teach hearing impaired children in the classroom?---I think Tasmania is close to being the norm. Yes, I do. In that all the signing children have access to bilingual education.’

669 She had no difficulty with the question in the first instance and the use by the cross-examiner of the word ‘norm’. When the question was put again she took issue with the use of the word, but in the third instance repeated her answer given on the first occasion.

670 A further example in her evidence of her difficulty in coming to terms with questions put is contained in the following exchange:

‘We’re talking about two approaches. One is that you rely on English and you speak to a deaf child through English, which is the dominant language of teachers and the community around you, or you embrace and understand and accept that the deaf community has its own language, which is Auslan, and then there’s an approach for using that which is called bilingual education. So if you look at it from a language perspective, which is where I’m coming at this from, being an expert in language, you have two approaches, either English, which you speak to a child, or perhaps add some signs and signed English to, or you use Auslan, which is a foreign language to the hearing teachers. It’s not a foreign language to deaf people.

HIS HONOUR: You say there are two approaches. Do you mean by that they’re mutually exclusive, when you say there’s no continuum?---Yes. I do. Yes.

Well, is that true in all regards? Where a child is partially deaf, may that child be better treated – taught on the auditory verbal approach?---I think – my own – my learning from what’s happened in other countries is if a child needs any support at all, if they can do fine in the hearing world in schools, etcetera, without any support and they’re not going to struggle, then auditory verbal or to just remain in the hearing world is accepted that that’s fine, they can do that. If they need any support at all – they’re going to struggle in any way, they’re better off to be taught through an approach that gives them full access and they can also have the ability to develop some speech and lip reading and hearing as well. So it’s an additive approach rather than saying can they do without Auslan and struggle to get through using auditory verbal. It’s saying let’s make sure they have full language access through Auslan or a native language, plus they may be able to develop speech and lip reading.

Does that mean that a child who is able to hear better with the aid of hearing aids but not hear perfectly should be taught the Auslan method?---That’s what’s happened in country - - -

I was just asking – I’m not asking - - - ?---Yes.

Yes or no. Yes or no will do?---Yes, I think if they’re going to struggle at all and they’re liable to miss information, yes, they’re better off to have full access to a language with ease and to have it as an additive process so that they have access to two communities and two avenues of gaining information.

They’re primary education in all respects, the child that I’ve just postulated to you, should be by Auslan method?---The primary approach.

The primary method of teaching them should be Auslan?---I would have thought so, yes. Again, we’re talking – it’s hard – it’s so individual to a child as to generally – it becomes fairly obvious when you meet and communicate with a deaf child how much they require and use and are naturally a user of a sign language.

But I’ve asked you to assume that the child we’re talking about is a child whose hearing is improved with hearing aids, but the hearing is not perfect. Just assume that to be the child?---Yes.

I understand your evidence to be that that child should be taught using the Auslan method?---If their hearing is such with the – the aided hearing is still causing them problems to understand information then, yes.

I’ll give it to you again. The child I’ve postulated is a child who is deaf but whose hearing is improved by use of aids – hearing aids – but his hearing is not perfect?---With aids it’s not perfect?

Yes, with aids?---Yes, then I would say then that then to have access to Auslan and English - - -

Well, I - - - ?--- - - in terms of speech is - - -

Please, if you could let me ask a question, if you wouldn’t mind. Let’s assume that to be the child. Should that child be primarily instructed through the Auslan method?---It’s – it’s very difficult to say in a - - -

Why is it difficult?--- - - in a hypothetical situation like that. To me it depends on what the child is most comfortable with, what they’re exhibiting they’re able to take up. They may – they may be – show much – it depends on the degree of difficulty that they’re having. It’s – I think it’s much easier to talk at the extremes of it if we’re talking in theory.

Of course it is, but that’s Mr Bain’s point, isn’t it, and that’s what you deny. You say there is no continuum?---There’s no – I’m saying that there’s not a continuum in method. We’re now talking about children’s hearing loss which clearly there is a continuum from very deaf to some deafness.

As I understand your evidence to be, you say that you either teach the children English in whatever way you do or alternatively you treat them – you teach them Auslan?---You teach them bilingually or in English only – monolingually or bilingually, so you teach - - -

But when you’re teaching them through the Auslan method, that is the primary source of education – the primary way of communicating with the children?---Yes.

Are you able to say whether or not that’s the appropriate way of teaching the child that I asked you to assume existed?---I don’t think I’m able to say, I don’t think, without knowing more about the child. I don’t thin it’s possible to say that.

Might it be better for that child to be taught english, through signed english or english?---Signed english would suggest that child needs sign language. If they needed sign language, I would be advocating more for Auslan than signed english, yes.

Well, there’s never a case, do you say, where signed english would be appropriate together with english as a method of teaching children?---No. That’s – it’s – it’s really lost favour. If anything, people who are – no.

Careful – lost favour – please, would you address my questions. I’m asking you what your evidence – I don’t care what anyone else’s - - -?---No, no. There’s only - - -

Just a minute – do you say that there is never a case where a child needs signing of any kind, that signed english plus english should be used in preference to Auslan?---No, not signed english. No.’

671 Dr Komesaroff was not prepared to acknowledge any form of education of a profoundly deaf child other than through Auslan. Clearly enough, from that evidence, Signed English would never be appropriate. If the child needs any support at all, it was her evidence that they should be taught in Auslan.

672 In cross-examination, she promoted her view that teachers of the deaf continue to communicate in English and in Signed English rather than in Auslan because they cannot communicate in Auslan, and by communicating in the form that they do they empower themselves and disempower the deaf child.

673 Moreover, she reiterated that view in par 33 of her second affidavit, which was sworn in answer to the affidavits of the respondent’s experts where she said:

‘In my research and experience, I have found that people who reject the use of Auslan in education almost exclusively lack any proficiency in this language. It appears that their decision to educate deaf children through English has more to do with their hearing status and language skills rather than pedagogical reasons. Their rejection of Auslan can be charged as self-serving as the continued use of English in education (in the absence of teachers’ Auslan skills) maintains their positions in deaf education. On the other hand, there are many examples of hearing teachers who have acquired Auslan as a second language; and although native speakers and proficient in English, support the use of Auslan (their second language) in education.’

674 She said in cross-examination that those teachers have rejected Auslan as a form of communication so that they can maintain their positions in deaf education.

675 In cross-examination she said:

‘Well, you say that their rejection comes about because they wish to maintain their position in deaf education?---Yes.

Not because they honestly hold the opinion?---I’ve said that it can be charged as self-serving. I think it can be viewed as such, yes. I think there’s an element that they – it certainly can be viewed as such.’

676 She was pressed further in cross-examination:

‘So you were saying that the teachers were resistant to it, consistently with what you said in paragraph 33 that they wish to preserve their own position and their own approach to education, weren’t you?---Overwhelmingly. Again overwhelmingly. There have been teachers who’ve stood up and brought in bilingual education so it’s not exclusively.

What about the many who in their own time, including in the schools under examination here, who have learned Auslan as well as having learned signed English? What about those committed people?---Yes, there’s a growing number of teachers now who in fact recognise that singed English isn’t the best way to go and, as you’ve said, have started to acquire Auslan themselves.’

677 In cross-examination she admitted two matters of particular importance in my opinion. First, when she wrote her thesis she did not suggest that it was orthodoxy to use Auslan as the first language and principal mode of instruction of the deaf in Australia. Nor did she suggest that that was the orthodoxy anywhere else. Secondly, she admitted that teaching in Auslan was not the norm in any State except, as she contended, in Tasmania.

678 I treat Dr Komesaroff’s evidence with caution. She is, in my opinion, too close to the issue to recognise any argument other than her own.

679 I prefer the evidence of Professor Lane, Professor Branson, Professor Power, Ms Lawrence and Sister Mary Teresa Lawson to Dr Komesaroff’s evidence.

680 Veronica Pardo is, as already observed, employed by Deaf Children Australia, formerly called VSDC Services for Deaf Children, which is an organisation which provides a range of services to deaf and hearing impaired children and their families.

681 Ms Pardo also acts as a sessional university lecturer at La Trobe University. Prior to holding her present position, she was employed full-time as a lecturer at that University.

682 She has specialised in Auslan, bilingualism and bilingual education for the deaf, Languagues Other than English (LOTE) and Sign Language Research throughout her career as an academic. She has studied the academic literature regarding the education of deaf children. She is qualified in Auslan and English as a second language teacher. She holds a Masters of Arts degree in Education, focusing specifically on bilingual education for the deaf.

683 Ms Pardo was instructed by the applicants to assess the language skills, history and needs of Tiahna and to comment upon them in the context of Tiahna’s need to fully benefit from an education in the public system provided by Education Queensland.

684 She observed that Tiahna was clearly bilingual in that Tiahna uses Auslan and English. Tiahna is able to make clear choices between the languages which she adopts in different communicative settings. In that regard, Tiahna uses speech and ‘speech reading’ to communicate when in the presence of non-signers. In the presence of signers, Tiahna uses Auslan in an age appropriate manner. Ms Pardo did not observe that Tiahna used Signed English, except insofar as some words in Auslan and Signed English are the same.

685 Ms Pardo’s opinion was that Tiahna would need to be exposed to Auslan at school otherwise her fluency and capability in that language would become compromised.

686 If she is educated in Auslan, not only will her Auslan competency develop appropriately but so will her English language continue to develop as a second language.

687 She said in par 22 of her affidavit of 18 August 2003:

‘22. For Tiahna to have equal access to education now and in the future, in my view the following needs to occur:

(a) Auslan and English need to be the languages of instruction in her educational setting. This means that she needs to be taught via Auslan all the time. Her exposure to English in its written form should be in addition to, and not as a replacement of Auslan.

(b) There must be at least one specialist staff member in Tiahna’s class at all times as defined below in points iv and v.

(c) Auslan and English need to be taught as separate curriculum areas to her individually in much the same fashion as English is taught to Tiahna’s hearing peers.

(d) Staff working with Tiahna must be competent and qualified in Auslan. These individuals should be qualified Teachers of the Deaf, and/or qualified in the Teaching of Languages Other than English (LOTE), and/or the Teaching of English as a Second Language (TESL). This could potentially be one person, or a number of people.

(e) Interpreters should be competent and qualified in Auslan, as well as being qualified in their profession.

(f) Teacher Aides should not be used as a substitute for Interpreters or Teachers. Teacher Aides would not be required for Tiahna if the above professional staff are provided.

(g) Professional development opportunities for non specialist staff including the general class teacher, and various administrative staff needs to occur to ensure a broader understanding of the principles and practice of bilingual education.

(h) A “whole school” approach to Auslan/English bilingualism, providing information and units of work for all students on deafness (for example her close peers ought to have the opportunity to learn Auslan as a second language and all students ought to receive some instruction in the nature of deafness so as to create cultural awareness and sensitivity), Auslan and bilingualism, deaf studies to partial/whole school Auslan LOTE programs.’

688 Ms Pardo swore a separate affidavit in relation to Ben’s claim. She referred to a number of affidavits of the applicants’ experts and a number of other documents, and said that her instructions were to assess Ben’s language skills, history and his needs, and ‘comment upon them in the context of his need to fully benefit from an education in the public system provided by the State of Queensland’.

689 She relied on Ms Wilson’s report of 18 August 2003 and assumed that Ben’s IQ was well within normal range. Ms Wilson had found, as a result of her assessment, that Ben was generally age appropriate in his non-verbal scores.

690 Ms Pardo said that, notwithstanding the absence of any intellectual disability, the speech pathologist report and her observations showed that Ben’s language abilities, both in Auslan and English, were well below average and not age appropriate.

691 Ms Pardo said:

‘This is not an unusual occurrence amongst deaf children who are denied an appropriate language input at school.’

692 She said that during her assessment she encouraged Ben to use Signed English because that was what he had been exposed to at school. She found that his signing was ‘consistently ungrammatical, with a predominance of lexical vocabulary and a paucity of functional vocabulary’.

693 This meant that, whilst he was able to use nouns and verbs, he had very little in the way of grammatical language such as pronouns, articles, prepositions, inflections, pluralism or continuing aspects.

694 On the other hand, Ms Pardo said that Ben commented that he liked Auslan better than Signed English. She said he indicated a progress towards competency in Auslan. She observed him interacting effectively with Auslan signers and engaging appropriately through an Auslan interpreter. She said:

‘21. The fact that Ben has developed this level of competency in Auslan, although far from proficient, is an indicator of the ease with which Auslan may be acquired by deaf people. It also indicates that Auslan is fully accessible to Ben and therefore, constitutes comprehensible input for him.’

695 It is surprising that Ben showed the level of competency to which Ms Pardo referred having regard to how little exposure he has had, on his own case, to Auslan. That evidence is also inconsistent with Professor Branson’s evidence.

696 She said that Ben has already suffered cognitive delay which may be permanent. In her opinion, that delay was a consequence of inappropriate linguistic input. That delay will affect the academic level which Ben will attain and means that his chance of accessing any tertiary education will be slight. He will therefore be restricted, she said, in the pursuit of a career.

697 She said:

‘If Ben had been given equal access to his education, he would be performing at a higher level than he is currently, and would have the possibility of tertiary education ahead of him, and thereby a greater choice of career options.’

698 This is an example of Ms Pardo’s tendency to over argue the case for both applicants. There is no evidence that Ben has the intellectual ability to perform at the level required for a tertiary education. There is evidence that he does not suffer an intellectual disability, but it does not follow that he has the intellectual ability to perform at a tertiary level.

699 Ms Pardo’s philosophy is demonstrated by her evidence in par 27 of her affidavit:

‘27. Education Queensland’s method of communication with Ben in implementing his education, as described in the Points of Defence of the Respondent at paragraph 4 (a), has been and will continue to be inadequate in my view. The hypothesis that Signed English can overcome Ben’s hearing loss, and guarantee not only a pathway to language acquisition but also access to classroom teaching and learning has clearly been disproved. The evidence for this fact lies in the results of speech and language tests conducted on Ben, all of which indicate very unsatisfactory outcomes. Further, his school reports and Individual Education Plans demonstrate that Ben is functioning well below what is expected from a boy his age, with his intellectual capacities.’

700 She said in her cross-examination:

‘MR BAIN: But your organisation doesn’t support any use of signed English in schools, does it?---That is correct. It does not support the use of signed English in schools as a result of a consideration of the literature and the research in this area which has found that it is an outmoded educational tool. And we are also guided strongly by the views of our stakeholders, both from the parent community and from the professional community who tell us that they are dissatisfied with the outcomes that signed English has resulted in. So for that reason, we have ceased the publication of the signed English dictionary.’

701 She admitted in her cross-examination that, although ultimately it is for the parents to decide how their child should be educated, Deaf Children Australia never advises parents that Signed English should be used in their children’s education. Indeed, the written advice is that the children should not be so educated. Even later, she said Deaf Children Australia advises deaf children’s parents that Signed English is an inappropriate form of communication.

702 Ms Pardo’s opinions are based upon a continuing premise, that is, that Signed English has no capacity to assist a student in that student’s education.

703 She swore a second affidavit in response to the affidavits provided by the respondent’s experts.

704 In that second affidavit she argued the case for Tiahna in Auslan rather aggressively.

705 Professor Power had by way of introduction included a history as shown in par 20 of his affidavit:

‘Although the use of signing in schools had gained support amongst many Queensland teachers of the deaf, it was believed that the kind of vocabulary needed for signing in schools largely did not exist in the sign language used by the Deaf community (which was Auslan). Therefore, in the mid-1970s the Australian Sign Development Project was established collaboratively, mostly by teachers from the Victorian School for the Deaf and the Queensland School for the Deaf and academics in the area of education of the deaf (of whom I was one).’

706 Ms Pardo said in her affidavit in response:

‘2. I refer to paragraph 20 of the Power affidavit. There is a view that “the kind of vocabulary needed for signing in schools largely did not exist in the sign language used by the Deaf community (which was Auslan)”. This was said to justify the need to develop Signed English. This view is incorrect. At the time of the development of Signed English, however, there was little research on Auslan. Auslan was simply not recognized in the 1970s as a legitimate language. Today, our knowledge of the grammatical structures of Auslan is far more sophisticated and certainly sufficient to dispel any suggestions that the Auslan vocabulary lacks expressive capacity. Any such claim can only indicate a failure to understand the guiding principles of Auslan grammar. A cursory glance at an Auslan dictionary might give the impression of a language with fewer lexical items than English. This, however, is misleading. English is a language that relies on word order and discrete units of meaning (words) to convey messages. Auslan relies on a complex system of morphology to generate meaning. That is, discrete units of meaning (signs) are modified through the addition of particles to create new meanings. It is these subtle changes to root signs that make Auslan a tremendously productive language and a very suitable language for use in education.’

707 Any reading of Professor Power’s statement leads to the understanding that he was talking of a time prior to the mid 1970s. That is clear by the second sentence of his par 20.

708 He does not make the claim that the view was correct. Simply, he said that that was the view. It must be remembered that Professor Power is one of the leading academics in the education of the deaf in Australia and has written extensively on the subject.

709 In par 67 of her affidavit, Sister Mary Teresa Lawson said:

‘Bilingual bicultural programs aim for the students to gain competency in both Auslan (signed) and English (written and spoken if appropriate). Auslan is generally used as the language of instruction. English is then taught as a second language.’

710 In par 26 of her affidavit in response, Ms Pardo said:

‘I refer to paragraph 67 of the Lawson affidavit. Again, this is one (very narrow) definition of bilingual education for the deaf. In actual fact, it fails to account for the model most bilingual schools in Australia, Canada, USA and UK have implemented. This is due to the fact that many students in bilingual programs do not enter the program with Auslan as a first language. Indeed, many students enrolled in bilingual programs present with skills in English as the first and only language, ranging in skill from fully proficient and age appropriate to significantly delayed.’

711 In my opinion, the criticism made by Ms Pardo is unreasonable.

712 In fact, on all of the evidence, Sister Mary Teresa Lawson’s statement is entirely orthodox and consistent with the applicants’ own experts’ evidence.

713 In par 69 of her affidavit, Sister Mary Teresa Lawson said:

‘69. I believe it has been necessary for Education Queensland to exercise caution in its decision to include a bilingual-bicultural program in its array of services to students with a hearing impairment for the following reasons:-

(a) the divergence of opinion about the best method of communication to use when educating students, which has been expressed in the past and which continues to be expressed;

714 In pars 27 and 28, Ms Pardo said:

‘27. I refer to paragraph 69 of the Lawson affidavit. I refer to the statement “I believe it has been necessary for Education Queensland to exercise caution in its decision to include a bilingual-bicultural program in its array of services to students with a hearing impairment for the following reasons:-

(a) the divergence of opinion about the best method of communication to use when educating students.”

I note that the divergence of opinions relates to all methods of communication, including auditory/verbal and total communication, not solely bilingual-bicultural. Yet, there is no suggestion that auditory/verbal or total communication methods not be implemented because of that divergence of views. In my view, children who would benefit from bilingual/bicultural programs are being disadvantaged by a debate that equally questions the value of all methodologies, including those currently offered by both Brisbane Catholic Education and Education Queensland.

28. Therefore, this statement clearly represents a professional bias rather than a considered and educated response to the needs of all deaf and hearing impaired children. Furthermore, it appears more of a defense of the status quo than an attempt to examine seriously the impact of the different approaches adopted by Education Queensland and Brisbane Catholic Education in the education of these children.’

715 The comments in par 28 of Ms Pardo’s affidavit are inappropriate and unnecessarily aggressive. Her affidavit in response is punctuated with statements of that kind.

716 In the end result, Ms Pardo’s affidavit in reply descends into arguments, some of which are clearly at the margins.

717 However, it is worthwhile identifying one matter which she addresses. In par 9 of her affidavit she says:

‘I refer to paragraph 65 of the Power affidavit. I refer to the statement “…a BLBC program would perform best with at least 30 to 35 children”. There is no definitive research about the number of children required to create a Communication Community. Research into spoken language bilingual programs indicate that where there is a commitment to the particular philosophy of bilingual education on the part of the school community, there is no need for even one native speaker child. Subsequently, I would argue that while there are obvious benefits to having numbers of native signing children and staff as members of the school community, it is not a prerequisite for a successful program. Those prerequisites instead are a commitment to the philosophy, a strong Auslan program prepared and delivered by skilled, qualified staff and continued professional development for all.’

718 I have considerable difficulty with her argument in that regard.

719 I would have thought it was at the very least desirable, if not necessary, that there be a communication community of the kind referred to by Professor Power.

720 Otherwise, the deaf/hearing impaired child would be unable to communicate with the other members of his/her community, except for those who had Auslan.

721 Ms Pardo argued that it is enough for the deaf/hearing impaired child to communicate with the Auslan teacher or instructor without having the benefit of socially interacting with his/her peers.

722 That is also contrary to the evidence of Sister Mary Teresa Lawson and, I think, with commonsense.

723 In the end, her opinions may be understood to be:

1. Signed English is another form of English and to teach a student in Signed English is to teach them in a monolingual program.

2. Signed English is of no assistance whatsoever in the education of deaf children.

3. All deaf/hearing impaired students should be taught in a bilingual program, but not necessary a bicultural program.

4. The method of communication should be through the language of Auslan.

5. It is not necessary in conducting a bilingual program to have a community.

6. English should be taught without any Signed English.

7. Parents will not make any significant contribution to their children’s Auslan language development.

8. On the other hand, deaf children are natural learners of sign language.

9. Learning Auslan and learning Signed English are long-term activities.

724 Deaf Children Australia recognises, as obviously it should, degrees of deafness. When a child presents, an assessment is made of the degree of deafness suffered by that child. An assessment is then made of the way in which that child should be taught. A child with a degree of deafness of five per cent would be more likely than not to be taught orally in English. That assessment takes place with the assistance of parents and educators.

725 At the other end of the spectrum is the child who is profoundly deaf. That child would have a hearing loss above 90 decibels. It is the view of Deaf Children Australia that, in the majority of cases, those children should be taught by using Auslan.

726 Ms Pardo admitted, however, that there would be circumstances where it would not be appropriate to have profoundly deaf children educated by using Auslan. She said if there is evidence that they are doing well in an oral-only environment then it would not be appropriate to educate them by using Auslan. Moreover, if experience shows that they are coping and the testing shows that they are achieving at peer equivalent level that would be another circumstance where it would be inappropriate to teach children in Auslan.

727 I prefer the evidence of the other experts to that of Ms Pardo. She is clearly a crusader for Auslan and not sufficiently objective. In particular, I prefer Professor Power’s evidence to the evidence of Ms Pardo.

FINDINGS ON THE EXPERT EVIDENCE

728 I will attempt to draw together from the expert evidence which I have accepted the findings relevant to these proceedings.

729 Auslan is the natural language of the deaf. The term ‘Auslan’ was coined by Dr Trevor Johnson in 1982.

730 Deaf people, who move in deaf communities, are best able to communicate with each other in Auslan.

731 Auslan is a visual spatial language. It consists of hand movements, facial expressions, body language and has an element of finger spelling.

732 It has developed over very many years but has its origin in British sign language. It was first introduced into Australia in the early 1800s by English and Irish settlers and was used in education as early as 1860. It was maintained in education until about 1880. From time to time, it has taken signs from other sign languages which are native to other countries.

733 It is a separate language and recognised as such by the Commonwealth Government as an indigenous Australian language in the Australian Language and Literacy Policy.

734 It is a language quite separate to English. Yet, it is influenced by English both lexically and grammatically.

735 Following upon the Milan Congress in 1880, the use of native sign languages in education was abandoned and replaced by the oral method of education. Native sign languages went ‘underground’ for about 100 years.

736 Up until the mid 1970s deaf children were taught orally. At that time it was recognised that deaf children were disadvantaged by an oral education.

737 In the early 1970s Signed English was developed as part of the Australian Sign Language Development Project.

738 Signed English was developed because it was thought Auslan did not have sufficient vocabulary. Signed English is a manual representation of English. Unlike Auslan, it is not a language. It uses the same grammar and syntax as English, and attempts manually to represent the English word.

739 Signed English has borrowed some signs from Auslan.

740 If a hearing person is talking to a deaf person, Signed English is used simultaneously with speech, lip reading and finger spelling.

741 Auslan cannot be used simultaneously with speech because the Auslan grammar and syntax is different to English speech.

742 On some occasions, as I have accepted in Ms Pardo’s evidence and Professor Power’s evidence, parties sign in English or address each other in Pidgin English.

743 Signed English was used, together with all other communication modes, in Australia after the introduction of Signed English in 1970 as a means of teaching deaf children. It was used in conjunction with a number of modes of communication: total communication. Total communication is not itself a method of communication but a philosophy.

744 As at 1998, it was still the most prevalent form of manual communication among teachers of the deaf in Australia (see par 2.6 of Dr Komesaroff’s thesis).

745 At some stage, with the development of the ‘Rights’ Movement in the United States, a Disability Rights Movement commenced. It had the consequences deposed to by Professor Branson and Professor Lane.

746 The Rights Movement sought to empower deaf people to allow them to choose how they should be educated to best enable them to function in the wider community, as well as in the deaf community.

747 It was argued by those who supported the Deaf Rights Movement that deaf education to that point of time had been unsuccessful. Deaf people were left without a language and without an ability to sometimes communicate with each other and, certainly, to communicate with hearing people. They argued for education of the deaf through native sign language.

748 That movement began and was stronger in the United States than in Australia. Indeed, it was not until 1992 that any program was developed in Australia for the use of Auslan in the education of deaf children and that was a small project in Tasmania, the Claremont project.

749 In 1994 the Total Communication Policy was promulgated: CS-11. It did not include Auslan as a mode of communication. Notwithstanding that it is a philosophy of total communication, the philosophy as it has been applied as a policy has not contemplated the use of Auslan as a method of communication. Insofar as Professor Power might have suggested otherwise, I reject that part of his evidence.

750 The Total Communication Policy recognises that all deaf children should be assessed individually to determine what form or forms of communication best suit their educational needs.

751 When the Total Communication Policy was adopted in Queensland there was no real support in Australia for the introduction of Auslan. There was no evidence as to the success or otherwise of the Claremont project, although there was some research available relating to bilingual-bicultural programs in the United States.

752 During the 1990s a debate arose between those who supported the existing form of education using a Total Communication Policy in signing and Signed English, and those who advocated the replacement of the Total Communication Policy with a policy of education that had Auslan as the deaf students’ first language, at least for the profoundly deaf.

753 I accept Professor Power’s evidence that the movement was evolutionary. I think that is also supported by Professor Lane’s evidence. In a curious way, it is supported by Dr Komesaroff who, as I have already noticed, indicated that at the time she wrote her thesis, at least amongst educators, Signed English was still the most prevalent form of manual communication.

754 Academics and educators have continued to debate the benefits of the two systems of education, namely, total communication and Auslan.

755 Professor Branson said that the debate ended some time in the 1990s. That might be so in Victoria, but I am not satisfied that the debate ended as early as that or, indeed, that it has ended at all in other parts of Australia.

756 I accept Professor Power’s evidence that even though there has been a move towards bilingual-bicultural programs ‘there certainly has been no consensus reached, academically, professionally, or even as between the interest groups …’: par 77 of his affidavit.

757 I am satisfied that some time between 1998 and 2000 the majority of academics and educators concluded that the existing form of education philosophy, namely, total communication, should give way to Auslan communication, at least with profoundly deaf children.

758 Not all deaf children should be educated in Auslan.

759 Indeed, and of course, only those who it is perceived would benefit from such an education should be taught in Auslan.

760 Those who would most benefit being taught in Auslan are those deaf children who exist in an environment within their home where Auslan is the first language.

761 It follows that Tiahna was one of those students and Ben when he started his schooling was not.

762 Auslan is most beneficial if it is taught as the child’s first language and used to teach that child a second language which, in this country, would be English.

763 It is best used if it is introduced in a bilingual-bicultural program.

764 In that respect, I accept the evidence of Professor Power that, by the late 1990s, a majority of academics and educators reached the opinion that bilingual-bicultural programs ought to be introduced with a view to assessing their effectiveness and if, as perceived, they were effective in due course as a substitution for the Total Communication Policy.

765 When bilingual-bicultural programs were first introduced into education systems within the United States, the advocates of those programs thought that those programs would solve all problems associated with deaf education. Research showed that not to be the case, although that same research shows that those programs are often more effective in educating deaf students than using the Total Communication Policy.

766 Adopting Auslan in a bilingual-bicultural program does not necessarily mean that Signed English should not be used. I accept Professor Power’s evidence that Signed English might be able to be used more effectively than Auslan in teaching children literacy skills in English. I also accept his evidence that some members of the deaf community would support a continued role for Signed English as part of a bilingual-bicultural program.

767 Each child with a hearing impairment should be individually assessed as to the best method of educating that child.

768 In some cases, it will be in that child’s interests, where the hearing impairment is less, to educate that child orally. As the degree of deafness increases, the likelihood of the use of Auslan as a preferred method of communication also increases.

769 When a child is profoundly deaf, ordinarily, subject to the parents’ wishes, he/she should be educated in Auslan.

770 The views of the parents must be respected.

771 There should be co-enrolment between deaf students and non-hearing impaired students. To optimise its prospects of success, a bilingual-bicultural program ought to be introduced into a communication community of deaf/hearing impaired and hearing students.

772 A bilingual-bicultural program cannot be applied to every child. There must be the community to which Professor Power has referred and at least a critical mass of students to ensure a signing peer group.

773 The staff should be qualified to be fluent in at least Auslan and, where appropriate, in Signed English.

774 The staff, like the students, both deaf and hearing students, should be committed to the program of bilingual-bicultural education.

775 The children’s parents must also be committed. Not all deaf/hearing impaired children should be part of a bilingual-bicultural program. The program is suitable for those who have the support of their parents and families and who are severely or profoundly deaf.

776 I stress again, each child with a hearing disability should be assessed individually to determine what method or methods of communication best suit that child to attain the best possible educational opportunities.

777 There are still some academics and some teachers of the deaf who are not convinced of the advantages of bilingual-bicultural programs or the use of Auslan.

778 It is right to say, on the findings already made, that that view is becoming the minority view. However, not so long ago it was the majority view.

779 Ms Pardo admitted in her evidence that nowhere in Australia apart from, she insisted, in Tasmania was Auslan used as the norm in the education of profoundly deaf children.

780 I think that concession on the other evidence available was rightly made.

781 I am satisfied on the evidence, particularly that of Ms Lawrence, that Education Queensland has progressed cautiously, but appropriately, towards the introduction of a bilingual-bicultural program and the use of Auslan as a method of communication for those programs.

782 It must be accepted that an education system cannot change its method of education without first inquiring into the benefits of the suggested changes and the manner in which those changes might be implemented.

783 It must first be satisfied that there are benefits in the suggested changes. It must be satisfied that it can implement those changes without disruption to those whom it is delivering its service.

784 It was appropriate, in my opinion, for Education Queensland to take the time that it did in considering the benefits which would be associated with bilingual-bicultural programs and the use of Auslan.

785 I accept the respondent’s argument that changes, as fundamental as those proposed in the bilingual-bicultural program, should be evolutionary rather than revolutionary. It is too dangerous to jettison a system of education and adopt a different system without being first sure that the adopted system is likely to offer increased benefits to the persons to whom the education is directed.

786 I think, however, in the years to come that all education authorities will move toward a bilingual-bicultural program of the kind advocated by Professor Branson and Professor Lane, and now cautiously supported by Professor Power.

787 In my opinion, however, it was not unreasonable for Education Queensland not to have adopted a bilingual-bicultural program prior to 30 May 2002.

788 I think Education Queensland, for all of the reasons I have mentioned, was entitled to move cautiously to the point that it did and to assess, step by step, the potential success or otherwise of the program.

789 It needed to develop a community of the kind that has been developed at Yeerongpilly and Toowong to allow the program to be successful.

790 It follows, from those findings, that both applicants have not established that it was not reasonable, having regard to the circumstances of the case, for Education Queensland not to have provided them with a bilingual-bicultural program prior to 30 May 2002.

791 It does not follow, in those circumstances, that the applicants’ case must fail.

792 For the reasons already given, Auslan as a method of communication and instruction should be delivered in a community. For the reasons already given, the applicants have not established that it was not reasonable to have introduced a program of that kind prior to 30 May 2002.

793 However, Auslan will still be of assistance to those who are profoundly deaf even if delivered on a one-on-one basis.

794 That is the evidence of all of the experts including Professor Power.

795 It seems to me, that some assessment should have been made of Ben’s and Tiahna’s needs prior to 30 May 2002 to determine whether they should be instructed in English, including Signed English, or in Auslan.

796 For the reasons already given, the Total Communication Policy did not allow for Auslan as a method of communication. In that sense, the Total Communication Policy has ceased to be a Total Communication Policy.

797 In my opinion, it was not reasonable for Education Queensland to not provide Auslan teachers or interpreters to Tiahna and Ben if they were not able to comply with the condition that they receive their instruction in Signed English. In other words, whilst they have not succeeded in establishing that it was not reasonable of Education Queensland to not have introduced a bilingual-bicultural program by 30 May 2002, they have succeeded, in my opinion, in establishing that it would have been of benefit to both of them to have been instructed in Auslan rather than in English.

798 In Tiahna’s case that is, without a doubt, obvious. Her first language is Auslan. She would have been better taught in Auslan.

799 In Ben’s case it is not so obvious but at least by 30 May 2002, it was a fact. In his case, some assessment should have been made within a short time after he commenced school to determine whether he could receive his education in English. The assessment was not made or, if made, was not made for the purpose of determining whether he should receive his instruction in Auslan.

800 That is no criticism of his teachers. They did not make that assessment because the Total Communication Policy did not provide for instruction in Auslan.

801 In my opinion, and this can be no more than a judgment, that assessment should have been carried out early in the year 2000 and an Auslan teacher or interpreter provided to him to assist him in his education.

802 In my opinion, Tiahna has established that, throughout the whole of her education in Education Queensland’s schools, it was not reasonable of Education Queensland not to provide her with an Auslan teacher or interpreter.

803 In my opinion, and as I say this can be no more than a judgment, in Ben’s case he has established that it was not reasonable for Education Queensland not to have provided him with an Auslan teacher or interpreter for the two years prior to May 2002.

THE APPLICANTS’ ABILITY TO COMPLY

804 Both Ben and Tiahna complained that they could not comply with the requirement or condition that they be educated in English and without the assistance of an Auslan teacher or an Auslan interpreter. I have already discussed the rather convoluted requirement or condition that was advanced by both of them which I have said may be understood in the way that I have put it.

805 The overwhelming evidence is that Ben’s education has suffered. He has fallen far behind his peers. I have accepted some of the respondent’s arguments for the reasons why that is so. But, whilst that may explain, in part, why he has fallen behind his peers, unless they are the only reasons that does not mean that Ben can comply with the requirement or condition that he receive his education in English and without the assistance of an Auslan teacher or an Auslan interpreter. Indeed, they may show why it is that Ben cannot comply.

806 In my opinion, there can be no doubt that Ben has not been able to comply with the requirement or condition that he be educated in English and without the assistance of an Auslan teacher or interpreter.

807 For that finding I accept Ms Wilson’s opinion to which I have referred at [565] to [569]; Mr Morris’ assessment at [583] to [588]; Professor Lane’s opinions at [604] to [606]; and Professor Branson’s opinions at [626] to [628].

808 In my opinion, on the respondent’s experts’ evidence on this issue, which I accept, Ben has made out his case under s 6(c) of the Act.

809 On the other hand, in my opinion, the evidence does not support a finding that Tiahna has not been able to comply with the same requirement or condition.

810 On the expert evidence called by her, she has been able to receive her education in English and in Signed English.

811 Tiahna has a verbal IQ of 98 and a performance IQ between 98 and 100. There is no disparity in that regard. She is in the average range across all her skill areas: Ms Wilson [570] to [573].

812 She has good oral skills. She can cope in a regular classroom environment: Mr Morris [589] to [591].

813 She has maintained parity with her hearing peers.

814 Professor Lane said that Tiahna should have Auslan instruction: [607]. He did not say that Tiahna could not comply with a requirement or condition that Tiahna receive her education in English.

815 Professor Branson’s evidence tended to establish that Tiahna could cope with education in English: [630].

816 Ms Pardo did not say that Tiahna could not comply. If her evidence in par 22 of her affidavit of 18 August 2003 suggested Tiahna could not comply, although in my opinion it does not, I reject that evidence. As I have already said, I prefer the evidence of the other experts to that of Ms Pardo.

817 There is no evidence, or no evidence which I am prepared to accept, to support a finding that Tiahna cannot be educated in English, including Signed English.

818 No doubt it was for that reason that she put her case in the rather convoluted way that she did in par 38 of her Statement of Claim. However, I am not prepared to find that that is a requirement or condition for the purpose of the Act. In my opinion, for reasons already given, the appropriate requirement or condition is to be taught in English without the assistance of an Auslan teacher or an Auslan interpreter.

819 On Tiahna’s own evidence, she has not established that she has fallen behind her hearing peers. It might be that she has not fallen behind her hearing peers because of the attention which she receives from her mother and the instruction which she no doubt receives from her mother in Auslan.

820 However, this is a matter upon which the experts have not discriminated.

821 In my opinion, it is enough to say that she has not satisfied that she is not able to comply with the requirement or condition that she be instructed in English without the assistance of an Auslan teacher or an Auslan interpreter.

822 Her case fails on that basis.

ORDERS AND COMPENSATION

823 Section 46PO(4) of the HREOC Act provides:

‘(4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:

(a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;

(b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;

(d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;

(e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;

(f) an order declaring that it would be inappropriate for any further action to be taken in the matter.’

824 Because of my findings, Tiahna’s claim must be dismissed.

825 However, in case I am wrong about the findings already made, I should briefly address the question of compensation in her case. If, contrary to my findings, Tiahna has established a case of indirect discrimination, in my opinion, on the expert evidence which has been called she has not established any loss or damage.

826 She has not fallen behind her hearing peers. There is no evidence to say that she would have done better than her hearing peers. Therefore, she has not established, in my opinion, that over the relevant period for which Education Queensland was responsible for her education, as a result of any breach of the Act, she has suffered any loss or damage.

827 Therefore, if I had had to assess compensation, I would not assess her compensation at any more than a nominal amount.

828 In his application Ben has sought the following orders:

‘□ Apology from respondent

□ Compensation

~~Details of the amount of compensation sought will be provided to the Court prior to the hearing of this matter.~~

Details of compensation sought are contained in Attachment 3 to this Amended Application.

~~The Applicant will be claiming general damages and amounts expended by his parents providing private tutelage that should reasonably have been provided by the Respondent.~~

□ Other

(1) An Order declaring the respondent has committed unlawful discrimination;

(2) An Order requiring the respondent not to repeat or continue such unlawful discrimination;

(3) An Order requiring the Respondent perform such acts(s) and/or course(s) of conduct that the Court deems appropriate to redress any loss or damage suffered by the applicant.’

829 In Attachment 3 Ben has identified the compensation sought:

LIST OF EXPENSES INCURRED BY

BENJAMIN DEVLIN AND/OR HIS PARENTS

AS A RESULT OF DISCRIMINATION

Phone calls – local & STD $200.00

(to raise concerns regarding education) approx

Learning games, books and cassettes $500.00

(including signed English) approx

Weekly visits to Laurie Ludvigsen – Aural $700.00

Habilitationist

Travel an extra 7 klms per visit $103.95

Auslan CD Rom $59.00

Teletext television with captions $475.00

Approx

GLOBAL ESTIMATE OF COSTS OF

INTENSIVE REMEDIAL LESSONS

TO BRING APPLICANT’S EDUCATION

STANDARD TO AGE APPROPRIATE LEVEL

Global sum claimed for cost of Intensive Remedial $10,000.00

lessons required to bring Applicant’s education

standard to an age appropriate level

GENERAL DAMAGES TO COMPENSATE $20,000.00

THE APPLICANT FOR THE SEVERE

DISADVANTAGES SUFFERED BY HIM

AS A RESULT OF THE DISCRIMINATION

OF HIM BY THE RESPONDENT

TOTAL $32,037.95

830 In par 39 of his Statement of Claim he claims that he has suffered:

‘(a) Humiliation;

(b) Anxiety;

(d) Social dislocation

(e) Educational disadvantage;

(f) Cognitive delay;

(g) Permanent cognitive damage;

(h) Future economic loss.’

831 In par 40 he seeks by way of remedy:

‘(a) Compensation for future economic loss

(b) Compensation for psychological harm;

(b)[sic]Orders requiring the Respondent to desist from further relevant breaches of the Disability Discrimination Act 1992 in respect of the Applicant;

(c)[sic]Orders requiring the Respondent to make relevant remedial linguistic intervention for the Applicant;

(d)[sic]Orders requiring the Respondent to implement appropriate educational methodologies as referred to in paragraph 28 of the Affidavit of Vernoica Pardo filed in this application on 21 August 2003.

(e) Costs;

(f) Such other Orders as the Court determines.’

832 It would be appropriate to make an order that the respondent has committed unlawful discrimination.

833 It would not be appropriate to make an order of the kind sought in subparagraph (2) of Ben’s application or in paragraph 40(b) (second appearing) of the Statement of Claim.

834 The evidence is that Ben does now have the assistance of an Auslan teacher. There is no reason to think that will not continue. There is equally no reason to think that Education Queensland would not respond to this decision in the provision of its further services to Ben. I decline to make an order that Education Queensland not repeat or continue the unlawful discrimination or an order requiring it to desist from any further breaches of the Act.

835 In his first written submissions, at the conclusion of the evidence, Ben sought compensation for psychological harm and a further sum for future economic loss. I accept this is a case where compensation for the loss or damage caused by the respondent’s conduct would be appropriate. That said, for the reasons that follow, on the evidence as it has been left, the assessment of that compensation is an almost impossible exercise.

836 In respect of that first head of damage he claimed, as he had pleaded, that he had suffered humiliation, anxiety, stress and social dislocation because of the significant language and academic delay due to the respondent’s conduct.

837 It was submitted that that he had been subject to humiliation, anxiety, stress and social dislocation.

838 That, it was submitted, ought to give rise to an award of damages and it was submitted that a sum in the order of $80,000 ought to be awarded under that head.

839 That submission was put upon the basis that Education Queensland ought to have provided Ben with an Auslan teacher or an Auslan interpreter from the time within which Ben came within its system and until trial.

840 The second head of damage was predicated upon the basis that, provided Ben obtains full-time access to an Auslan interpreter, it is likely he may complete secondary education but be confined to work of a manual or semi-skilled nature for his working life.

841 It was put:

‘7. The earning capacity difference between that of the average tertiary qualified person as against that of the average secondary qualified person can be estimated and the Applicant’s evidence from Geoff Manton was that the difference may be between $20,000 and $30,000 per annum. If the Court is uncomfortable making an award of compensation on this estimate it is submitted an appropriate course if for the Court to make relevantly useful findings about the Applicant’s likely earnings, as is possible, and findings about the likely earnings but for the impugned conduct and appoint an expert in the form of an actuary to quantify the likely economic loss arising.’

842 I am not prepared to act upon “the evidence” contained in that submission. I did not admit the evidence from Mr Manton that Ben might suffer a loss of between $20,000 and $30,000 per annum. There is no evidence of the kind referred to in that submission.

843 Nor am I prepared to act upon the further submission and appoint an actuary to quantify the loss. It is this Court’s duty to assess compensation. That assessment must be made on the admissible evidence before the Court.

844 The time for Ben to call evidence, in relation to a claim for economic loss, or more particularly loss of earning capacity, was at the trial.

845 In his Statement of Claim he identified the compensation for any loss or damage suffered quite precisely. No attempt was made to prove the individual items. In his Statement of Claim he limited his claim for compensation for general damages to $20,000.

846 I think Ben is entitled to compensation for general damages, in particular for the hurt, embarrassment and social dislocation which has been occasioned by his inability to communicate in any language. Of course, not all of that has been caused by Education Queensland. All of the other factors to which I have earlier referred have played a part.

847 It was submitted that Ms Mosely’s evidence showed that Ben used to withdraw into himself when communication broke down. I accept her evidence.

848 However, I cannot find on that evidence that was as a consequence of Education Queensland’s conduct. Ms Mosely was his teacher for a period in 2001. At that time, Ben’s conduct might well have been due to his failure to have any language to the year 2000 which was not a consequence of Education Queensland’s conduct.

849 However, I think Ben is entitled to some award for those general damages. In my opinion, a sum of $20,000 would be appropriate.

850 I turn to the claim for economic loss.

851 Ben has fallen far behind his hearing peers. That is partly due to the matters relied on by the respondent.

852 However, he would have been assisted if Education Queensland had provided him with an Auslan education or, at the very least, an Auslan interpreter from early 2000, i.e. for the two years before his complaint.

853 The only evidence to assist me in assessing any loss of earning capacity suffered by Ben is the evidence of Mr Manton, to which I have referred, and that evidence, meaning no disrespect to Mr Manton, is self-evident.

854 How it would sound in compensation though is impossible to calculate.

855 If I were to assume that Ben has lost the opportunity of a tertiary education and employment commensurate with a tertiary education, I simply have no figures upon which to work. If I were to assume that Ben is capable of a secondary education at present, I cannot make any finding about what employment might be available to Ben upon the assumption that he has lost the opportunity of a tertiary education.

856 The other matter about which I have no evidence is whether, if Ben obtains the education which it is said that he requires, he will attain a level of performance equal to his hearing peers, although I think, on the evidence presently before me, it is unlikely, unfortunately, that Ben will ever attain that level. That is for all of the reasons already addressed including reasons quite unconnected with Education Queensland’s conduct.

857 It therefore follows that there is insufficient evidence before me to assess compensation upon the basis that Ben has lost the opportunity of a tertiary education and is now less likely to obtain employment.

858 However, I must make some assessment, even though there is a paucity of evidence.

859 In my opinion, it would be appropriate to proceed upon the basis that Ben lost two years schooling prior to 30 May 2002 because of the failure of Education Queensland to provide him with an Auslan teacher or interpreter.

860 If he were to stay at school for two years more than he otherwise would have, he should be able to regain the education he has lost. That is the assumption I will make. However, that does not make the assessment much easier.

861 I will compensate Ben upon the basis that he has lost two years earnings some time into the future; some time either between the ages of 17 and 19 years if he only completes a secondary education or between the ages of 22 and 24 years if he completes a tertiary education.

862 I still do not know what level of achievement Ben could attain, assuming that those two years of education were replaced.

863 I do not have any evidence of what earnings might be available to Ben at that time.

864 Like in an assessment of damages in claims for personal injury, I should ignore inflation. I should allow for the present day value of the money. I should assume that the discount rate is three per cent: Todorovic & Another v Waller (1981) 150 CLR 402.

865 I assess the compensation for loss or damage payable by the respondent in the nature of loss of earning capacity to the applicant Ben at $40,000. There will be no award of interest on the sum of $40,000. That sum reflects a future loss of earning capacity: Thompson v Faraonio (1979) 24 ALR 1.

866 The sum of $20,000 which I have assessed for the hurt suffered by Ben should carry interest. I will award interest of $4,000 on the sum of $20,000 which has been outstanding for nearly three years.

867 I realise that the sum awarded is more than Ben sought in his Statement of Claim but it is significantly less than the amount sought at trial.

868 I make the following orders:

In Action Q200 of 2002:

1. The application be dismissed.

In Action Q201 of 2002:

1. Leave to amend pars 12, 13, 14, 15, 17, 18, 19, 22, 25, 29 (with the exception of par 29(e)), 29D, 30 and 31 (but in respect of those last two paragraphs only to include a reference to par 29D).

2. Otherwise leave to amend refused.

3. A declaration that the respondent has committed unlawful discrimination.

4. The respondent to pay the applicant $64,000, which includes $4,000 by way of interest.

869 I will hear the parties as to costs. Because the matters were heard together the parties may seek orders apart from the usual orders where costs follow the event. I will, if asked, extend the time within which to appeal to commence from whenever the costs orders are made.

I certify that the preceding eight hundred and sixty nine (869) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated: 15 April 2005

Counsel for the Applicants:	Mr J D Gray with Mr M Hodge

Solicitor for the Applicants:	Caxton Legal Centre

Counsel for the Respondent:	Mr R Bain QC with Mr C J Murdoch

Solicitor for the Respondent:	Crown Solicitor

Date of Hearing:	7, 8, 9, 10, 11, 15, 16, 17, 18, 30 June 2004; 1, 2 July 2004

Date of Judgment:	15 April 2005

Top