FEDERAL COURT OF AUSTRALIA
Walker v State of Victoria [2011] FCA 258
IN THE FEDERAL COURT OF AUSTRALIA | |
ALEX WALKER (BY HIS NEXT FRIEND PAIGE WALKER) Applicant | |
AND: | STATE OF VICTORIA - DEPARTMENT OF EDUCATION AND EARLY CHILDHOOD DEVELOPMENT Respondent |
DATE OF ORDER: | |
WHERE MADE: |
THE COURT ORDERS THAT:
1. The application be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA | |
VICTORIA DISTRICT REGISTRY | |
GENERAL DIVISION | VID 401 of 2009 |
BETWEEN: | ALEX WALKER (BY HIS NEXT FRIEND PAIGE WALKER) Applicant |
AND: | STATE OF VICTORIA - DEPARTMENT OF EDUCATION AND EARLY CHILDHOOD DEVELOPMENT Respondent |
JUDGE: | TRACEY J |
DATE OF ORDER: | 23 MARCH 2011 |
WHERE MADE: | MELBOURNE |
THE COURT ORDERS THAT:
1. The application be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.
VICTORIA DISTRICT REGISTRY | |
GENERAL DIVISION | VID 829 of 2008 |
BETWEEN: | ALEX WALKER (BY HIS NEXT FRIEND PAIGE WALKER) Applicant
|
AND: | STATE OF VICTORIA - DEPARTMENT OF EDUCATION AND EARLY CHILDHOOD DEVELOPMENT Respondent
|
GENERAL DIVISION | vid 401 of 2009 |
BETWEEN: | ALEX WALKER (BY HIS NEXT FRIEND PAIGE WALKER) Applicant
|
AND: | STATE OF VICTORIA - DEPARTMENT OF EDUCATION AND EARLY CHILDHOOD DEVELOPMENT Respondent
|
JUDGE: | TRACEY J |
DATE: | 23 MARCH 2011 |
PLACE: | MELBOURNE |
REASONS FOR JUDGMENT
1 Over the past decade Mr Alex Walker has attended two schools which are conducted by the State of Victoria acting through its Department of Education and Early Childhood Development (“the Department”). In these reasons I will refer to the Applicant (who makes his application through his next friend and mother Mrs Paige Walker) as “Alex” to distinguish him from his father to whom I will refer as “Mr Walker”. Alex alleges that the Department has, during most of this period, discriminated against him by various acts or omissions which are rendered unlawful by the Disability Discrimination Act 1992 (Cth) (“the DDA”). He seeks a number of remedies. He also alleges that the Department committed an offence under the DDA by taking prejudicial action against him because he had made a complaint about some of the alleged contraventions of the DDA.
BACKGROUND
2 Alex was born on 11 February 1995. It was common ground that he suffered and suffers from a number of disabilities including learning disabilities, dyslexia, attention deficit hyperactivity disorder and Asperger’s syndrome.
3 In January 2001, Alex commenced attending school at Branxholme-Wallacedale Community School (“Branxholme”). For the first three years, despite requiring significant special attention, he received positive reports regarding his educational progress. In late 2004, however, the school began to have concerns about Alex’s behaviour, both in class and towards other students, particularly during recess and lunchtimes. The school responded by implementing a number of strategies which were designed to assist Alex in the classroom and ensure that he was being supervised at other times. These strategies (some of which became the subject of complaint in this proceeding) included arrangements for Alex to spend certain lunch times at home and the provision of structured, supervised recess activities when he was on the school premises.
4 Alex’s behaviour did not improve. In both Grades 5 and 6 (which he completed in 2005 and 2006 respectively) serious incidents occurred in both the classroom and the playground which led to disciplinary action being taken against Alex. The level of interaction between Alex’s parents and the principal and other teachers increased as the school sought to deal with these problems. Action (and inaction) by the school during these two years was also the subject of complaint by Mr and Mrs Walker.
5 In December 2006, Alex completed primary school.
6 In January the following year, he began attending the Good Shepherd School, where he remained for the first half of 2007. This was a private school which was not conducted by the Department. No complaint has been made against it in this proceeding. As early as March 2007 concerns were expressed by the school to Alex’s parents regarding his use of foul and abusive language and shortly thereafter, he was asked to leave Good Shepherd. For the second half of 2007, he was educated by distance education and at the Southern Grampians Adult Education Youth Program (“SGAE”).
7 In July 2007, preparations commenced for a transition by Alex to secondary school at Baimbridge College, Hamilton (“Baimbridge”). On 19 November 2007 he began attending Baimbridge as part of the transition program. In each week he spent part of his time at SGAE, Baimbridge and working on distance education. This combination continued as he entered Grade 7 in 2008, with him attending Baimbridge on Mondays and Thursdays in the mornings, attending SGAE for one and a half days per week and also undertaking some distance education.
8 In 2009 these arrangements continued as Alex pursued his studies in Grade 8.
9 In January 2008, and again in April 2009, Alex (acting through his parents) complained to the Human Rights and Equal Opportunity Commission (“the Commission”) about many things which were done and not done by the schools in the course of their dealings with him and his parents. The conduct about which complaint was made was said to have involved discrimination against Alex because of his disabilities.
CONSOLIDATION
10 The jurisdiction of the Court to deal with Alex’s complaints was conferred by s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“HREOC Act”). Under Part IIB of that Act it is necessary that an Applicant has first lodged a complaint with the Commission, the complaint has been considered by the Commission, the complaint has been terminated by the President of the Commission and the President has given notice of such termination to the Applicant.
11 Section 46PO of the HREOC Act provided that the unlawful discrimination alleged in any application commenced in this Court must either be the same as the unlawful discrimination that was the subject of the terminated complaint or must arise out of the same acts, omissions or practices that were the subject of the terminated complaint. The Court has held that this provision prevents a complainant from relying, in a proceeding in the Court, on any act of unlawful discrimination which occurred after the relevant complaint had been lodged with the Commission: see Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 at 580 (per Katz J); Maghiar v State of Western Australia [2002] FCA 262 at [18] (per French J); Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1325 at [68] (per Weinberg J); Crvenkovic v Latrobe University [2009] FCA 374 at [11] (per Tracey J).
12 The complaint which led to the commencement of proceeding VID 829 of 2008 was lodged in the Commission on 25 January 2008. The proceeding was commenced on 3 October 2008. In it Alex sought to rely on events which had occurred after 25 January 2008. The Department objected.
13 Alex responded, on the eve of the trial, by making a further complaint to the Commission on 17 April 2009. That complaint restated his earlier allegations and made further complaints arising from events which had occurred between February 2008 and April 2009. The Commission terminated the second complaint on 25 May 2009. On 29 May 2009 Alex commenced proceeding VID 401 of 2009.
14 Proceeding VID 829 of 2008 was listed for hearing, commencing on 2 June 2009. On that day Alex applied to have the two proceedings consolidated. The Department did not oppose this application. I ordered that the proceedings be consolidated. As a result Alex was at liberty to lead any evidence directed to establishing any act or omission on the part of the Department which he alleged constituted unlawful disability discrimination, and which occurred up to and including 17 April 2009. With the consent of the Department the same amended statement of claim which had been filed in proceeding VID 829 of 2008 was relied on in VID 401 of 2009 because it contained the allegations relating to events which had occurred between 25 January 2008 and 17 April 2009 on which Alex wished to rely.
THE COURSE OF THE RIAL
15 The pre-trial period was beset by a series of failures, on the part of those acting for Alex, to comply with procedural directions. This in turn necessitated the fixing of additional directions hearings and revisions to the timetable.
16 The trial commenced on 2 June 2009. The parties had provided an estimate of 12 days as being needed for the Court to hear evidence and submissions.
17 Despite directions having been given requiring the parties to exchange contentions of fact and law prior to the commencement of the trial, no contentions of fact and law were filed and served by the Applicant until 28 September 2009. This made it all the more important that Alex’s counsel should open his case with precision and in sufficient detail to ensure that the Court and the Department understood the case that was being put. Unfortunately this did not occur.
18 Five witnesses were called in support of the Applicant’s case. All these witnesses were cross-examined by counsel for the Department. The Applicant’s evidence was concluded on 11 June 2009, the sixth sitting day.
19 Cross-examination of the Department’s witnesses commenced on 12 June 2009. By 19 June 2009 – the twelfth and last day set aside for the hearing – only two of the Department’s witnesses had completed their evidence. This was because of the time taken in their cross-examination. The cross-examination was unstructured and was often repetitive and irrelevant.
20 Counsel advised the Court that another eight days would be needed to complete the hearing of evidence. Dates were fixed for later in the year. Unfortunately, due to the illness of leading counsel for Alex, those dates had to be vacated. The resumption of the trial was then fixed for 19 April 2010. Because of what had occurred during the first hearing period, restrictions were imposed on the length of time available for cross-examination of the Department’s remaining witnesses: cf the principles discussed by Pembroke J in Thomas v SMP International (No 3) [2010] NSWSC 900 at [12]-[24]. Three further witnesses were heard on 19 April 2010 and over the following four days. Despite the limitations, time continued to be wasted in cross-examination. Three of the many examples which could be cited may be mentioned. During his first day in the witness box Mr Crossley (the principal of Branxholme during Alex’s final year at the school) was cross-examined for about two hours on largely irrelevant matters which were said to be raised by eight paragraphs of his witness statement. Although given the opportunity to explain the relevance of the cross-examination the following morning counsel was unable to do so. The first question which greeted Mr Crossley on the third day of his cross-examination was: “Mr Crossley, I just wanted to ask you about the structure by which the responses made by employees of the respondent at the Branxholme School were structured.” He was then asked a series of questions over the next 40 minutes, most of which had no bearing on any issue in the trial. They included whether he had examined files containing assessments of teachers at Branxholme; whether his evidence had slipped “into homily and euphemism”; whether “education itself is regarded in this society as a good thing”; his familiarity with the “my schools website”; and whether test results displayed on the website were a fair reflection of the performance of the teachers and principal at Branxholme. On his last day in the witness box Mr Vecchiet (the principal of Baimbridge) was taxed for some 40 minutes with a semantic examination of a short letter which he had written. The questioning was, at best, of marginal relevance.
21 In order to avoid losing Court time during this second hearing period, counsel for Alex were required to reduce any evidentiary objections they had to material appearing in the witness statements of the last three witnesses and the Department’s counsel were directed to file and serve written responses. It was as well that these directions were made. Because of the large number of objections I spent some two days in chambers considering them and my rulings were subsequently announced in open Court.
22 The Respondent’s case was closed on 23 April 2010. Oral and written submissions were subsequently made and filed.
The RELEVANT LEGISLATION
23 Alex’s primary claim is that the Department contravened ss 22(2)(a) and 22(2)(c) of the DDA by directly and indirectly discriminating against him on the basis of his disabilities.
24 At the relevant times, s 22(2) of the DDA provided that:
“(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) …; or
(c) by subjecting the student to any other detriment.”
25 Proscribed discrimination may be direct or indirect in form. At relevant times s 5 of the DDA defined direct discrimination as follows:
“(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.”
26 Alex also alleges that he suffered from indirect discrimination. He contends that the Department imposed certain conditions on his education which were not reasonable and with which he was unable to comply.
27 Section 6 defined indirect discrimination as follows:
“For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:
(a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and
(b) which is not reasonable having regard to the circumstances of the case; and
(c) with which the aggrieved person does not or is not able to comply.”
28 It should immediately be noted that the definitions of direct and indirect discrimination are mutually exclusive: see Australian Medical Council v Wilson (1996) 68 FCR 46. That does not mean, however, that a complainant is prevented from establishing a factual spring board from which to allege that he or she has been the victim of either direct or indirect discrimination: see, for example, New South Wales (Department of Education) v Human Rights and Equal Opportunity Commission (2001) 186 ALR 69 at 83; Tate v Rafin [2000] FCA 1582 at [69].
29 The statutory definitions were amended by the Disability and Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth). The amendments did not, however, come into force until 5 August 2009 and they were not, therefore, applicable to the complaints made by Alex.
30 Alex further claims that the Department breached Parts 3-7 of the Disability Standards in Education 2005, which are promulgated under the DDA: see s 32, which makes it unlawful for a person to contravene a disability standard. Parts 3-7 of the Disability Standards relate to the making of reasonable adjustments for students with disabilities, standards for enrolment, standards for participation, standards for curriculum development and standards for the provision of support services.
31 The Department relies, by way of partial defence, on s 34 of the DDA which provides that if a person acts in accordance with a Disability Standard, Part 2 of the DDA, which includes s 22, does not apply to that act.
32 In the event that an adverse finding of discrimination was to be made under s 22(2), the Department foreshadowed reliance on a defence under s 22(4) insofar as the discriminatory conduct might have occurred after 10 August 2005. Section 22(4), when read with s 11, provided a defence if avoidance of the discriminatory conduct would have imposed an unjustifiable hardship on the schools concerned.
33 A statute of limitations defence was also raised in respect of any conduct occurring prior to 3 October 2002.
34 Alex charged the Department with victimisation in contravention of s 42 of the DDA.
35 At the relevant times, s 42 provided that:
“(1) It is an offence for a person to commit an act of victimisation against another person.
Penalty: Imprisonment for 6 months.
(2) For the purposes of subsection (1), a person is taken to commit an act of victimisation against another person if the firstmentioned person subjects, or threatens to subject, the other person to any detriment on the ground that the other person:
(a) has made, or proposes to make, a complaint under this Act or the Human Rights and Equal Opportunity Commission Act 1986 ; or
(b) has brought, or proposes to bring, proceedings under this Act or the Human Rights and Equal Opportunity Commission Act 1986 against any person; or
(c) …; or
(d) …; or
(e) …; or
(f) has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under this Act or the Human Rights and Equal Opportunity Commission Act 1986 ; or
(g) has made an allegation that a person has done an act that is unlawful by reason of a provision of this Part;
or on the ground that the firstmentioned person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (g) (inclusive).”
ONUS OF PROOF
36 Alex bears the onus of proof in establishing his claims in relation to disability discrimination and victimisation: see Qantas Airways Limited v Gama (2008) 167 FCR 537 at 561 [65] (per French and Jacobson JJ), and 575 [132] (per Branson J). The relevant standard is the balance of probabilities. The strength of the evidence necessary to meet that standard “will vary according to the nature of what is sought to be proved”: Gama at 577 [139] (per Branson J). In this case the allegations made by Alex are indeed serious and this must be borne in mind when assessing the strength of the evidence adduced in support of Alex’s claims: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2; Evidence Act 1995 (Cth) s 140.
THE WITNESSES
37 The witness statements filed by the parties prior to the trial suggested that it would be necessary to resolve a large number of factual disputes. In the event this proved to be unnecessary. There were a number of reasons for this. Some of the contentious material was not read. More significantly, however, a number of the witnesses, particularly the principal witness for Alex, Mrs Paige Walker, agreed under cross-examination that they had made factual errors when recounting relevant events.
38 Six witnesses were called for the applicant. Alex himself gave short evidence. As already noted, Mrs Walker was the principal witness on the applicant’s side. The other four witnesses were Mr Walker, Mr Robert Dick, Ms Janine Bounds and Ms Bronwyn Doran.
39 The Department relied on the evidence of five witnesses. They were Ms Juliana Smith, Mr Michael Castersen, Mr Stephen Crossley, Mr Robert Vecchiet and Mr Greg Storer.
40 With rare and immaterial exceptions, I consider that each witness made a genuine attempt to respond truthfully to questions put to him or her. Not surprisingly, when they were asked to recall details of events which had occurred, in some cases, up to six years earlier, they gave qualified or tentative answers. On many occasions their doubts were resolved when contemporaneous documents refreshed their memories on matters such as when meetings were held, who attended them, what issues were discussed, and what decisions were made.
41 At this point it will be convenient to make some general observations about each witness.
42 Although Alex was only in the witness box for a short time, he impressed me as an intelligent, responsive, polite and articulate young man. He was an honest witness. He readily agreed, for example, that he had engaged in misconduct, from time to time, whilst at the two schools.
43 Mrs Walker was a quiet and measured witness who conscientiously sought to answer questions during cross-examination. She reluctantly accepted that a number of things which she said in her witness statements were exaggerated or wrong. She was plainly a devoted mother who sought to achieve the best possible outcomes for Alex at not insignificant personal cost. Her disappointment at Alex’s lack of progress at school led her to express strong views to the teachers and administrators at the schools which he had attended. Her forthright manner brought her into conflict with successive principals and class teachers whom she considered were not doing what was in Alex’s best interests. These conflicts coloured her evidence. In her lengthy witness statements, for example, she made no positive statements about Alex’s experiences at Branxholme or Baimbridge despite her willingness, under cross-examination, to acknowledge that he had, during his time at these schools, made considerable progress.
44 Mr Chris Walker, like his wife, “couldn’t see the positive side” of Branxholme although he was prepared to acknowledge that the school had assisted Alex to achieve certain milestones during his six years there. He too had had disagreements with the principals and teachers and these conflicts also had an impact on his appreciation of events. For some reason, which he was unable to explain, he distinguished between principals and teachers engaged by the Department and those at Good Shepherd, notwithstanding the fact that those at Good Shepherd responded to Alex’s misconduct in much the same way as did Departmental staff. Despite these matters I consider that he endeavoured to give a truthful account of the matters about which he gave evidence.
45 Mr Robert Dick was an advocate engaged to represent the interests of Alex and his parents during some meetings with Departmental staff. He did his best to remember events about which he was questioned. He had a very limited recall of what was discussed at programme support group meetings which he attended at Branxholme. He repeatedly said that he didn’t recall particular matters being discussed but agreed they may have been. His evidence was, as a result, of limited assistance.
46 Ms Bounds is an experienced educational psychologist. She was consulted, in her private practice, by Mr and Mrs Walker. She examined Alex from time to time and administered tests to enable her to assess his progress. She provided a series of reports on her findings. Those reports were in evidence and she was questioned about them. She also participated in some meetings with Alex’s teachers at which she made suggestions as to how Alex could best be assisted in a learning environment. Ms Bounds was an objective and highly credible witness.
47 Ms Doran was presented as an expert on disability education and expressed a number of opinions which were critical of the manner in which Alex was dealt with at Branxholme and Baimbridge. In giving her evidence she was combative, argumentative and nonresponsive. I do not accept that she is an expert in the field and thereby qualified to give the opinions which she expressed. She had never given evidence before in a disability case. She was asked to give evidence in this case by an advocate for Alex. She had not undertaken any academic research in relation to matters about which she expressed opinions. She had made no contributions to the relevant literature and had no resort to such literature to support her opinions. She had very little practical experience in the field of disability education. Despite these shortcomings I consider that the views which she expressed were genuinely held by her.
48 Mr Castersen was the principal at Branxholme during Alex’s early years at that school. He was a calm and careful witness. He readily conceded a lack of detailed memory of some incidents about which he was questioned. He displayed great sympathy to Alex and was clearly concerned to do all within his power to assist Alex’s educational progress. He was inclined to understate the seriousness of some of Alex’s conduct, including an assault on him in front of other students.
49 Ms Smith was Alex’s class teacher in Grades 2, 4, 5 and 6 at Branxholme. She was an impressive witness. She was clearly a conscientious, experienced and dedicated teacher. She was genuinely concerned for Alex’s well-being both educationally and socially. Her descriptions of Alex’s conduct were measured and reflected an understanding of his disabilities.
50 Mr Crossley succeeded Mr Castersen as principal at Branxholme. He too was closely involved with Alex and demonstrated a desire to assist Alex with his education to the greatest extent possible. He had had many acrimonious exchanges with Mr and Mrs Walker during his early years at Branxholme. He clearly resented some of the allegations made against him under cross-examination but nonetheless did his best to remain objective when his opinions were sought.
51 Mr Vecchiet was the principal at Baimbridge during Alex’s first three years at the school. He oversaw a much larger institution with many more students and teachers than were to be found at Branxholme. For this reason he was more detached from the planning and management of Alex’s education than were Messrs Castersen and Crossley. Direct responsibility for Alex fell to specialist teachers and aides. Nonetheless, Mr Vecchiet was kept informed of relevant matters by his staff and had direct contact, from time to time, with Mr and Mrs Walker and Alex. He impressed me as a highly professional educator.
52 Mr Storer was a parent of children at Branxholme and was the co-ordinator of the Auskick programme which was conducted on the school grounds. Alex had caused distress to his son by wrestling him to the ground in the school yard. He had also seen Alex dealing overvigorously with younger children. While he was plainly unhappy with what he observed he did not appear to bear any personal animosity towards Alex and sought to give an accurate account about his observations of Alex’s conduct and his dealings with Mr Crossley about that conduct.
DISCRIMINATION RELATING TO EDUCATION
53 The Department did not dispute Alex’s claim that he suffered a “disability” within the meaning of s 4 of the DDA or that it (or Branxholme and Baimbridge) was “an educational authority” within the meaning of s 22(2). Nor did the Department dispute that its schools should be available to assist with the education of students who were suffering from disabilities.
54 Issue was, however, joined as to whether the Department had contravened either or both paragraphs (a) or (c) of s 22(2) of the DDA.
55 Education is but one of a number of fields of human endeavour to which the DDA applies. The proscriptions which s 22(2) contains were considered by Gleeson CJ in Purvis v New South Wales (2003) 217 CLR 92 at 99-100 [7]. His Honour there noted the tensions which will often arise between the duties imposed by s 22 in respect of individual children and the wider legal responsibilities which teachers and administrators owe to all students. His Honour said:
“The Act deals with discrimination in a normative, not a value-free, context. Section 22, with which this case is concerned, proscribes discrimination ‘against’ a person on the ground of the person’s disability … The question is whether the Act treats certain action taken in respect of conduct that affects, not only the person said to be the victim of the discrimination, but other persons whom the alleged discriminator is obliged by law to protect, as unjust and unlawful discrimination. The first respondent owed a duty of care towards its pupils and its staff. That is part of the legal background to the operation of the provisions of the Act dealing with education. In its application to educational authorities, the Act enters an area of relationships governed by legal obligations designed to protect the young and vulnerable. In the development of common law principle, it is appropriate, and sometimes necessary, for a court to take account of the need for coherence in the law … The obligations which arise from the Act have to be related to the functions, powers and responsibilities of the first respondent. Furthermore, the conduct of the first respondent can only be evaluated fairly in the light of an understanding of those functions, powers and responsibilities. The Act, in its application to educational authorities, and in its prohibition of discrimination against persons on the ground of a disability, requires a judgment both as to alleged differential treatment and as to the ground upon which action was taken. In both respects, it is impossible to ignore the context in which the first respondent, by its officers, was acting. It was charged with the care and protection of all the pupils in the school in question. The first respondent showed concern and sensitivity in its dealings with the pupil. It also recognised its legal responsibilities to the other pupils and to the school staff. If there is a reasonable construction of the Act which avoids a conflict between those responsibilities and the obligations imposed by the Act, then that construction should be preferred. And in the practical application of the Act in an evaluation of the conduct of the first respondent, those responsibilities should be kept in mind.” (emphasis added).
56 This case provides a very good example of the practical difficulties which confront educational administrators when they endeavour to perform their duties in a manner which is consistent with the requirements of the DDA.
57 By the end of the trial it had become clear that the dispute between the parties essentially concerned and arose out of the differing appreciations of Mr and Mrs Walker on the one hand and the Department on the other, of the efficacy and effectiveness of the teaching and socialising regimes which were put in place at Branxholme and Baimbridge in order to cater for Alex’s disabilities. Mr and Mrs Walker considered that, had different strategies and additional resources been devoted to Alex’s education, he would, despite his disabilities, have been able to reach the same levels of literacy and numeracy as those achieved by his peer group.
58 The Department’s contention was that this expectation was not realistic. It accepted that Alex was intelligent and was able (as he did) progressively to improve his numeracy and literacy. His disabilities, however, meant that his progress was slower than that of others in his academic year group who were not so disabled. Progress was, nonetheless, made to the point where the Department submitted that Alex had benefited educationally from his attendance at both Branxholme and Baimbridge. The Department drew attention to a number of the conclusions reached by Ms Bounds which suggested that the assistance provided to Alex at both Branxholme and Baimbridge had enabled him to make good academic progress notwithstanding his disabilities.
59 Six reports from Ms Bounds were in evidence. In none of them did she level criticism at either school in relation to the educational methods which they employed to assist Alex. Nor did she criticise the regimes which were put in place in order to ensure that, when interacting with other students, Alex behaved in a socially acceptable manner and he was made aware that consequences would follow if he did not abide by the schools’ requirements. In April 2008 Ms Bounds expressed the opinion that Alex would never reach his chronological year level in literacy and numeracy. Nonetheless she considered that, when Alex’s disabilities were taken into account, he was thriving in a mainstream school environment and was able to cope in most subjects as well as his peers. By February 2008 she had come to the view that Alex no longer had a specific learning disability in reading because of significant improvements in his reading capacity.
60 There were also differences about how Alex’s admitted misbehaviour should have been managed. The factual sub-stratum from which these differences emerged was largely uncontroversial.
61 One example of many which could be cited which illustrates the differences of perception between the parties, as to how best Alex’s conduct might have been regulated, is provided by some questions which were put to Mr Vecchiet during cross-examination. He was being asked about an incident which occurred at Baimbridge in February 2008. The following exchange occurred:
“MR PERKINS [Counsel for Alex]: And the document that you included said:
28 February 2008, late for class. Went in and said, ‘Hello, teacher dude.’ He was reprimanded, and Mr Bell said he will not call him that again.
What’s that about?---That sounds as if it’s about the teacher asking Alex not to speak, call him “dude” again, but to call him Mr Bell and to show an element of courtesy.
And your position about this is, “Here’s the note, it’s not something I ever investigated but look at this.” That’s your opinion. You didn’t investigate this, did you?---No, I didn’t investigate every incident that’s there, your Honour.
It is absolutely correct to say you didn’t ever encourage anybody to put a greeting like that in perspective, did you?
MR BOURKE [Counsel for the Department]: What perspective?
MR PERKINS: Perspective that the child in question had an autism spectrum disorder?—I’m sorry, am I expected ---
You didn’t - I’m putting it to you – you didn’t ever encourage anyone to put that in the perspective that the child had autism spectrum disorder.
HIS HONOUR: I think what you’re being asked is, when members of your staff from time to time reported to you that Alex had behaved in an inappropriate way, did you make a point of saying to them, “But you understand that he’s suffering from particular disabilities”?---The fact that Alex was suffering from particular disabilities was brought to the attention of all his teachers. It’s normal practice for our integration program to create a book of each of the students in the program with a précis of their condition and how it may manifest itself, and how it may be able to be addressed. That’s placed in the staff room as a general rule, so staff have access to that. In the case of Alex, if you like, with a more severe range of behaviours, there was even – that had even – a higher profile, so that staff were given even more information about Alex’s condition.
MR PERKINS: Look, proper leadership would have been very simple in that situation, I suggest to you, and it would have been along the lines, “Don’t treat that as sufficiently important in the context of Alex Walker being an autism spectrum disorder person,” that, I – what I’m putting to you is that that greeting was totally without importance, and a proper leadership approach would have said that’s the way to approach it?---Am I being asked for an opinion about that approach, your Honour?
Yes, about proper leadership approach to the use of such an expression by an autism disorder sufferer?---My reading of the comment in the document was not that Mr Bell berated Alex, it was simply that he corrected him on the appropriate way to address him. So I didn’t feel that it had been taken badly.
Really? Yes, go on?---Equally, there are other items in the diary that talk about the good days, so I’m not – I wasn’t concerned terribly about Mr Bell’s reaction. I didn’t think it was a strong reaction.
What on earth could it be about saying “hello, teacher dude” which is – which requires – that a child who says it, with Asperger’s syndrome – I’m sorry, autism spectrum disorder – needs to be rebuked?---Well, part of what we were trying to do – if – was that we were trying to make sure that Alex learned some social skills, so that if he did behave inappropriately and say something that might be misconstrued in another environment, that he was, it was explained to him that it wasn’t correct. And so this would simply be the same sort of correction that we would make to any other child in terms of how they might address a child.
The same sort of correction you might make to any other child?---Correct.
In other words, not an intervention that’s designed for Alex Walker as someone with ASD?---It was part of teaching Alex social skills, like it would be teaching anybody social skills.
Indeed it was, but the manner of the intervention or the manner of dealing with it, Mr Vecchiet, had to be different for a person with autism spectrum disorder, didn’t it?---I don’t believe it was necessarily to treat Alex completely differently for every single case, every single behaviour.” (Emphasis added).
As the tenor of this and other lines of questioning make clear, it was a significant part of Alex’s case that he should, by reason of his disabilities, have been treated differently from other students in matters of discipline. The school principal, for his part, considered that it was necessary to enforce disciplinary norms in order that Alex might gain social skills in the school environment.
62 Mrs Walker explained her position in her second witness statement as follows:
“The difference between the Principals’ approach and ours can be seen by comparing the way they speak about Alex, compared to what we know about Alex’s disabilities and their impact on him. They speak about Alex in a blaming way that concentrates on his behaviour. We have always tried to understand the world from Alex’s perspective, and sought to think of constructive ways to lessen his stress. These are completely different perspectives and approaches – one seeks to marginalise Alex and the other seeks to understand and include him.”
63 The principals and teachers, on the other hand, were aware of Alex’s disabilities and considered that the strategies which they employed in order to deal with the manifestations of his disabilities struck a balance between the need to assist Alex and the educational needs and safety of his fellow students. From their standpoint the two objectives need not be in conflict. The enforcement of the school discipline code, for example, was seen to assist in the socialisation of Alex and to protect other students from his disruptive conduct.
64 At one point counsel for the Department went so far as to submit that the educational outcomes achieved by Alex at the two schools was so beneficial that it should be found that he had not suffered any detriment within the meaning of s 22(2) of the DDA. I do not agree.
65 It will, shortly, be necessary to essay, in some detail, an account of Alex’s educational and other experiences at Branxholme and Bainbridge. As will become apparent, there is no doubt that events occurred, in the course of his attendance at these schools, which may properly be considered to fall within paragraphs (a) and (c) of s 22(2). Alex was, for example, suspended on a number of occasions as a disciplinary measure. As a result he was denied access to the normal classroom learning activities provided by the schools. Whilst at school he was, sometimes, segregated from other students and, during these periods, was prevented from enjoying social interaction with them. He was not permitted to attend at least one school excursion. He was, for a period, denied the opportunity to experience travelling on the school bus.
66 Many of the complaints raised by Alex in advancing his indirect discrimination case related to alleged failures by the Department to make particular resources available in order to improve his educational opportunities. As will be seen, I have concluded that some of these allegations are unfounded. Others are not explained with sufficient precision to enable a finding to be made that any requirement or condition of the kind alleged was imposed. Yet others, on analysis, amount to allegations of direct rather than indirect discrimination. The one complaint which I have found to have substance was that a requirement was imposed on Alex that he “access” his education at Branxholme without “one-to-one assistance in his academic subjects”. The imposition of this requirement may, in my opinion, constitute a detriment for the purposes of s 22(2)(c) of the DDA.
67 The central question on these applications is whether conduct on the part of the Department which had the effects identified in s 22(2)(a) and (c), was discriminatory within the meaning of ss 5 or 6 of the DDA.
DIRECT DISCRIMINATION
68 Alex alleges that the Department directly discriminated against him by treating him less favourably than a person without his disability by:
not permitting him to attend school during recess and lunchtime at Branxholme;
not permitting him to attend school excursions at Branxholme;
preventing him from attending Baimbridge at all during the third term of 2007;
thereafter preventing him from attending school full-time at Baimbridge; and
preventing him from travelling on the school bus during 2008.
69 In order for him to establish this part of his case, it is necessary for Alex to demonstrate that the Department did (or failed to do) one or more of these things “because of” his disabilities thereby treating him less favourably than the Department would have treated someone without his disabilities in the same, or not materially different, circumstances.
70 There must, therefore, be a causal nexus between Alex’s disability and the treatment of which he complains. In Purvis, Gummow, Hayne and Heydon JJ held (at 163) that:
“… the central question will always be – why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it ‘because of’, ‘by reason of’, that person’s disability. Motive, purpose, effect may also bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression ‘because of’”.
In his judgment Gleeson CJ (at 102) was also concerned to identify “the true basis” of a decision to expel a student from school. His Honour said that:
“The fact that the pupil suffered from a disorder resulting in disturbed behaviour was, from the point of view of the school principal, neither the reason, nor a reason, why he was suspended and expelled … If one were to ask the pupil to explain, from his point of view, why he was expelled, it may be reasonable for him to say that his disability resulted in his expulsion. However, ss 5, 10 and 22 [of the DDA] are concerned with the lawfulness of the conduct of the school authority, and with the true basis of the decision of the principal to suspend and later expel the pupil. In the light of the school authority’s responsibilities to the other pupils, the basis of the decision cannot fairly be stated by observing that, but for the pupil’s disability, he would not have engaged in the conduct that resulted in his suspension and expulsion. The expressed and genuine basis of the principal’s decision was the danger to other pupils and staff constituted by the pupil’s violent conduct, and the principal’s responsibilities towards those people.”
See also at 143-4 (per McHugh and Kirby JJ); Forbes v Australian Federal Police (Commonwealth of Australia) [2004] FCAFC 95 at [68]-[70].
71 The Court is, therefore, required to determine, as a question of fact, why (in the sense of the “real reason” or “true basis”) the impugned conduct occurred.
72 It must also be shown that the Department treated Alex less favourably than it would have treated other students who did not suffer from his disabilities in the same or substantially similar circumstances. The importance of identifying and bringing into account the relevant circumstances when making the comparison required by s 5 was emphasised by members of the High Court in Purvis. In their joint judgment Gummow, Hayne and Heydon JJ said (at 160-1):
“It may readily be accepted that the necessary comparison to make is with the treatment of a person without the relevant disability. Section 5(1) makes that plain. It does not follow, however, that the ‘circumstances’ to be considered are to be identified in the way the appellant contended. Indeed, to strip out of those circumstances any and every feature which presents difficulty to a disabled person would truly frustrate the purposes of the Act. Section 5(2) provides that the relevant circumstances are not shown to be materially different by showing that the disabled person has special needs. …
In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled. The appellant’s argument depended on an inversion of that order of examination. Instead of directing attention first to the actual circumstances in which a disabled person was, or would be, treated disadvantageously, it sought to direct attention to a wholly hypothetical set of circumstances defined by excluding all features of the disability.
The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the ‘discriminator’. It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person’s disability. There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different.
In the present case, the circumstances in which [the student] was treated as he was, included, but were not limited to, the fact that he had acted as he had. His violent actions towards teachers and others formed part of the circumstances in which it was said that he was treated less favourably than other pupils. Section 5(1) then presented two questions: (i) How, in those circumstances, would the educational authority have treated a person without [the student’s] disability? (ii) If [the student’s] treatment was less favourable than the treatment that would be given to a person without the disability, was that because of [the student’s] disability? Section 5(1) could be engaged in the application of s 22 only if it were found that [the student] was treated less favourably than a person without his disability would have been treated in circumstances that were the same or were not materially different from the circumstances of [the student’s] treatment.” (Emphasis in original).
See also at 100-101 (per Gleeson CJ); Zhang v University of Tasmania (2009) 174 FCR 366 at 384-5 [63]-[64] (per Jessup and Gordon JJ).
Recess and lunchtime regime at Branxholme
73 In 2004 Alex was in Grade 4. He was one of 25 students who were taught in a combined Grades 4, 5 and 6 class at Branxholme. His teacher was Ms Julie Smith. Ms Smith had earlier taught Alex in Grade 2 and was aware that he had a short concentration span. She adopted a number of measures in an effort to assist him. She made him a member of a small group which she called “the Treasures”. This group was given shorter tasks than other groups within the class but were nonetheless challenged so that they could enjoy a sense of achievement at the completion of assigned activities.
74 In 2004 Ms Smith divided her class into four groups based on academic ability. Each group had a separate curriculum. Alex was one of four students who formed part of the Treasures group. Students moved between groups depending on the subject being taught and a student’s level of progress in the subject. Although Alex spent most of his time as part of the Treasures group he worked in another group for some subjects.
75 Ms Smith had the assistance of a teaching aide, Ms Katrina Pigdon, on four days a week during the 2004 academic year. Ms Pigdon regularly worked with the Treasures group, assisting them to perform tasks and activities which had been given to them by Ms Smith. From time to time Ms Smith also worked on a one to one basis with Alex.
76 During this year Ms Smith received a number of reports relating to Alex. They came from Ms Lauren Campbell, an educational psychologist employed by the Department, Mr Tim Rayner, an audiologist and Ms Janine Bounds, a psychologist in private practice. Each report made recommendations which were adopted by Ms Smith. Ms Bounds’ report raised, for the first time (at least as far as Ms Smith and Branxholme were concerned), the possibility that Alex might be suffering from Asperger’s Syndrome.
77 Mr Michael Castersen became acting Principal at Branxholme at the start of term 4.
78 During the year Alex had displayed some minor behavioural problems in the classroom. From time to time he niggled other students and he would occasionally use bad language. Despite this Ms Smith considered that she had been able to manage his conduct.
79 Towards the end of the year, however, Alex commenced to misbehave in the school playground during recess and lunch breaks. He tended to mix with younger students rather than his own year level. On 5 October 2004 he swung a yo-yo around his head and it struck two other students. On 16 November 2004 Mr Castersen received a complaint from the mother of a younger girl who complained that Alex had called her daughter a “bitch”. Mr Castersen spoke to Alex about this matter. Alex’s response was: “you don’t have the authority to keep me behind these gates beyond school hours.” On 22 November 2004, Alex called a preparatory or Grade 1 girl a “big fat cow”.
80 These events caused Mr Castersen to convene a meeting on 23 November 2004 which was attended by him, Ms Campbell, Ms Smith and Mrs Walker. Mr Castersen expressed his concern about Alex’s conduct. He raised the possibility of Alex going home during some recess and lunch breaks in order to relieve any stresses which might lead to anti-social behaviour by him in the playground. This suggestion was supported by Ms Campbell and Ms Smith. Mrs Walker wanted time to consider the proposal and it was agreed that she and Mr Castersen would discuss the matter further on 26 November. They did so. Mrs Walker told Mr Castersen that she was opposed to Alex going home at lunchtime and that his behaviour was the school’s problem.
81 Mr Castersen nonetheless insisted that Alex should go home for some lunch times each week unless this was inconvenient to Mrs Walker on a particular day. The Walker home was only a few doors away from the school.
82 This regime was put in place. When Alex was at school during the lunch break he was closely supervised by the teacher on duty.
83 Despite this his misconduct continued. As students were leaving the school on the afternoon of 25 November 2004 Alex was heard to use the word “fuck” in the hearing of a teacher. On the following day he knocked another student’s lunch off a seat.
84 On 29 November 2004 Mr Castersen had a meeting with Mr and Mrs Walker. They discussed strategies for managing Alex’s conduct for the remainder of 2004 and during the following year. The issue of Alex going home at recesses and lunch time was again raised. Both Mr and Mrs Walker said that they did not agree with Alex coming home. Mr Castersen said that it would be necessary for there to be a behaviour management plan for Alex and weekly meetings to review how he had behaved.
85 Alex’s misbehaviour continued. During recess on 30 November 2004 Mr Castersen passed Alex and said “hello”, to him. Alex’s response was “up yours, Castersen”. In early December 2004 Alex made a sexual gesture to a female teacher in class. On 10 December 2004, during a recess, Alex threw another student’s ball onto a roof. Upon being advised of this incident Mr Castersen rang Mrs Walker and asked her to take Alex home. He did so because he was concerned that Alex’s conduct was becoming more dangerous and there was a risk that he might injure another child or that a child might become injured attempting to retrieve a ball which had been thrown away.
86 At about this time Mr Castersen made a point of observing Alex’s behaviour in the school yard during recess and lunch time breaks when he was present. Mr Castersen often saw Alex acting as if he was going to hurt another student. Alex made a range of gestures (punching, throwing and gun shooting) at other students and regularly made gun shooting gestures towards Mr Castersen. Alex would also, from time to time, stick his fingers up at other students or interrupt other students who were playing marbles by kicking their marbles away.
87 In 2005 Alex moved into Grade 5. He was part of a combined Grade 4, 5 and 6 class of 27 students. The class was again taught by Ms Smith. As she had done in the previous year Ms Smith divided the class into groups. Alex spent most of his time in the Treasures group but also joined other groups for particular subjects or activities.
88 During 2005 Ms Smith was assisted by three aides, two of whom worked mainly with Alex.
89 During this year Alex was, at most times, well behaved in the classroom. There were occasions, however, where he disrupted classroom activities by making inappropriate statements and failing to abide by his teachers’ directions.
90 Alex’s behaviour outside the classroom continued to deteriorate. There were many incidents. Some examples will suffice.
91 During the lunch break on 7 February 2005 Alex threw another boy’s bag into some bushes. When asked why he had done so he responded: “because he is a pain.” He told the yard duty teacher to “get fucked”. When these matters were reported to Mr Castersen he directed that Alex remain after school for 30 minutes and rake leaves. Alex refused to do this. Mr Castersen told him that his attitude was not satisfactory and that he would have to perform the task on the next day. Alex responded: “I am going to kill you” and “I am not going to do this”. He made a shooting gesture.
92 During recess on 9 February 2005 Alex tripped a younger girl. She fell to the ground and was covered in grass and dirt. When asked what had occurred Alex said that the tripping was an accident which occurred while he was playing with two girls. The girls denied that Alex was involved in their game.
93 Following this incident Mr Castersen advised Mr and Mrs Walker that he considered it necessary for regular meetings to resume to review Alex’s behaviour.
94 During recess on 3 March 2005 Alex threw a basketball and tennis bats at other students. He missed some of his targets but hit one student on the back of the head with a basketball and another on the neck with a tennis bat.
95 On 15 June 2005 Alex threw a rock at another student. The rock hit the student near his eye. This unprovoked attack occurred in the presence of parents and students, including the mother of the victim. Mr Castersen suspended Alex for three days.
96 After school on 16 August 2005 a teacher asked all students to pick up five pieces of paper and put them in the bin. Alex responded by saying: “I don’t have to and there’s nothing you can do about it.” He eventually complied with the teacher’s direction but said that “I can do anything I like and I can get away with it.”
97 On 17 August 2005 during the lunch break Alex jumped on a sandcastle created by younger students. Following further misbehaviour that afternoon Alex was sent home.
98 A more serious incident occurred on 15 September 2005. Alex was leaving his classroom in a rush. He knocked a girl to the ground. Mr Castersen was passing the classroom at the time. He asked Alex what had occurred. Alex made no comment and walked back inside the classroom. Mr Castersen directed Alex to collect his bag and come with him. As Mr Castersen turned away from Alex, Alex punched him in the back and kicked his leg. Mr Castersen turned back and, as he did so Alex pushed him to the ground in the corridor. Alex then ran off. Mr Castersen telephoned Mrs Walker and told her what had occurred.
99 In the course of the year many meetings took place between Mr Castersen and Mrs Walker to discuss Alex’s behaviour. Some of these meetings were also attended by Ms Smith, Ms Bounds and Mr Walker.
100 During these meetings Mr Castersen maintained that, if Alex’s behaviour warranted it, he should go home at lunch times so that he could calm down away from any stresses he was experiencing at school. Although Mr and Mrs Walker persisted, in the earlier part of the year, in their opposition to this strategy, at a meeting with Mr Castersen on 22 August 2005, they agreed that Alex should be sent home if he engaged in defiant behaviour at school. It was also agreed that Alex would have an option during recess of pursuing indoor activities such as using a computer or playing games. He could seek permission to go outside and this would normally be approved. Alex usually chose to remain inside. At lunch times he went home unless this was inconvenient for Mrs Walker.
101 In October 2005 there was a meeting attended by Mr Castersen, Ms Smith, Mr and Mrs Walker and Ms Bounds to review the recess and lunch time arrangements. All present agreed that Alex should continue to have a structured recess timetable of activities and that he would continue to go home at lunch time. It was thought that the lunch time break would not only relieve stress but might also improve Alex’s concentration during class in the afternoon.
102 In term 4 Mrs Walker was away from home more often and, as a result, Alex did not go home at lunch time on many days. On the days on which he remained at school during the lunch break he was given the option of structured activities indoors, an option which he often took up. When in the playground he was closely supervised.
103 On 27 October 2005 Ms Bounds produced a report in which she reviewed various aspects of Alex’s behaviour. She recorded that Alex had ongoing difficulties at school and that some of these difficulties related to his conduct during recess and lunch times. She noted that Alex preferred to play with younger children and did not do so appropriately.
104 In 2006 Alex moved into Grade 6. He was part of a combined Grade 4, 5 and 6 class of 18 students. Save for term 3, when she was away, the class was taught by Ms Smith. She followed her previous practice of dividing the class into groups. In this year she did not have a Treasures group. She was assisted by two aides.
105 Mr Castersen had left the school at the end of 2005 and an acting principal was appointed for term 1 of 2006. Mr Stephen Crossley became the principal at the end of March 2006.
106 Alex continued to use inappropriate language in the classroom. On 19 April 2006, for example, he told Mr Crossley: “you’re a fucking stupid principal” and “you don’t know how to run a fucking school”. These words were uttered in the presence of other students and led to a two day suspension.
107 On 12 July 2006 Alex had misbehaved all morning in the classroom. When Mrs Walker came to collect him at lunch time Mr Crossley told her what had happened. Mr Crossley and Mrs Walker went into the classroom and Mr Crossley invited the teacher to explain what had occurred to Mrs Walker. As the teacher was doing this Alex intervened saying (of the teacher): “she’s a retard”, “she was crap”, and “this is bullshit”. Alex spoke these words while walking around the classroom in the presence of Grade 4 students.
108 Alex was suspended.
109 On 17 July 2006 a meeting was held at the school between Mr Crossley, Mrs Walker and Alex. One of the issues discussed was the continuation of the recess and lunch time arrangements. Mrs Walker agreed that Alex should continue to go home at lunch times except on Mondays and Fridays. On these days Alex was supervised when in the playground. It was agreed that structured activities would continue to be provided during recess periods.
110 These strategies were, unfortunately, not successful in curbing Alex’s anti-social behaviour outside the classroom. Serious incidents continued to occur. Again, some examples will suffice.
111 During the lunch break on 21 July 2006 (a Friday) Alex wrestled a Grade 1 boy to the ground and engaged in simulated sex on him. He told a Grade 2 girl that her “brother [was] gay”.
112 On 14 August 2006, during afternoon sport, Alex told a Grade 4 girl that he would “get a knife and kill you.” On the same day he told another girl that “Josh has a one centimetre thing and he will stick it up [your] bum”. The girl burst into tears.
113 As the year progressed Alex continued to harass the girl whom he had threatened to kill. On 19 October 2006 he struck her during the lunch break. He then said words to the effect: “I should have smacked her in the face”, “Chloe … is an idiot” and “if she comes near me … cos I will smack her face off”. On 28 November 2006 he threw basketballs at the girl saying: “who hates Chloe?” and pushed her over.
114 In the course of 2006 regular meetings occurred to review Alex’s behaviour. Most involved Mr Crossley and Mrs Walker. Some of these meetings were also attended by Ms Smith, Mr Heinicke (one of the aides), Ms Liz Jones (the student wellbeing and diversity manager for the region) and Mr Robert Dick (a disability advocate engaged by Mr and Mrs Walker).
115 During 2005 and 2006 a written student management plan operated at Branxholme. It applied to all students and dealt with what was to occur in the event that a student contravened the school’s student code of conduct. The plan provided for a range of consequences depending upon the seriousness of the student’s misbehaviour. The consequences ranged from warnings, notification of parents, the tendering of an apology, payment of repair costs for damage, after school community service (a form of detention) through to suspension and expulsion.
116 Branxholme’s responses to Alex’s misconduct (including the imposition of community service and suspensions) were guided by this plan.
117 Alex completed his studies at Branxholme at the end of 2006.
118 Alex contended that, in excluding him from the playground and from school during recess and lunch breaks between 2005 and 2006, the Department directly discriminated against him, contrary to the provisions of 22(2) of the DDA. This contention must fail.
119 It must fail because it cannot be said that the Department (or Branxholme) would have treated another student without Alex’s disabilities any differently from the way in which it treated Alex. This is because the relevant comparator is a student displaying the same behaviour as Alex did but without the disability, not a student without the disability and without the behaviour. Furthermore, Alex has not established that, in imposing the relevant regime, the Department subjected him to any detriment.
120 In making the comparison required by s 5 of the DDA, it is first necessary to have regard to the behaviour which led to the imposition of the regime. That behaviour was disruptive of the learning and recreational activities of other students at Branxholme. More significantly, it was threatening to other students and, in some cases, like the stone throwing incident, physical harm was caused to another student. Alex’s actions regularly caused distress to other students.
121 In these circumstances Mr Castersen and Mr Crossley had no option but to devise strategies which were designed to assist Alex and protect other students.
122 Mr Castersen and Mr Crossley were both alert to Alex’s psychological problems. They were aware that, if he were tired or stressed, he would often exhibit anti-social behaviour. That behaviour sometimes occurred in the classroom, but more serious manifestations of it occurred on a regular basis in the playground during the morning recesses and lunch times. They were ever mindful of their duty of care to other students.
123 Both principals considered that one way of relieving the stress experienced by Alex and avoiding threatening and dangerous behaviour on his part, was to place him away from the school playgrounds whenever possible. This strategy was approved by Ms Bounds and, in time, by Mr and Mrs Walker. Having regard to the number of times Alex misbehaved when he was in the playground under supervision I readily infer that there would have been many more such incidents had Alex not been inside the school or at home during recreational periods.
124 The next question is whether the imposition of the regime was a less favourable step than would have been taken in the case of another student who had acted in the same disruptive fashion but who did not labour under the same disabilities as did Alex.
125 Both Mr Castersen and Mr Crossley said that they had dealt with Alex in the same way as they would have dealt with any other student who had acted in the same manner. They did so consistently with their professional expertise in order to promote Alex’s welfare and protect the welfare of other students. They applied the student management plan that was applicable to all students. I accept this evidence.
126 The Department did not call detailed evidence about how other students who had contravened the school’s code of conduct had been dealt with under the management plan. This was probably because the case put by Alex was not one of asymmetrical treatment but rather that, because of his disabilities, the management plan should not have been applied to him. The general evidence of Messrs Castersen and Crossley concerning the consistency and fairness with which they applied the management plan to students was not seriously challenged.
127 I, therefore, conclude that Alex was not dealt with, under the management plan, less favourably than another student who did not have Alex’s disabilities would have been treated had he or she engaged in the same or substantially the same misconduct.
128 Relevantly, the response complained about was the putting in place of arrangements under which Alex spent time in the school building or at home during many recess and lunch time periods. These were a form of suspension. It is not strictly accurate to say that this regime involved him being excluded from the playground. This is so because it was open to him to ask for permission to go into the playground during recess and, if he asked, that permission would usually be given. He was also able to go into the playground during lunch times when it was not possible for him to go home because his mother would not be there. Alex usually preferred to amuse himself in the school building during recess and appeared to enjoy the structured activities which were there provided for him. The luncheon breaks reduced some of the stress which he experienced and he appeared to be calmer in class on afternoons when he had been home at lunch time.
129 To this extent the application of the student management plan to Alex appears to have operated to his benefit.
Excursions at Branxholme
130 During his time at Branxholme Alex attended many school excursions. These included an eisteddfod, swimming programmes, a camp at Bendigo, a performance at the Hamilton Performing Arts Centre, a t-ball competition, a wood, wine and roses festival, an Anzac memorial service, an AFL football clinic and a school concert.
131 In his final written submissions this aspect of his complaint was shortly dealt with. The submissions referred to a mention of excursions in a behaviour management plan (“a BMP”), to an end of year camp and to an excursion to Kryal Castle.
132 Under the sub-heading “Management of Behaviour” in a BMP dated 23 July 2006, it was recorded that:
“Alex will not attend any school excursions or camps or participate in any after school activities; if Alex cannot be adequately supervised at school because of these activities he is to remain at home; Alex may continue to prepare for Music Night at the end of term 3 but his participation is subject to his continued good behaviour.”
It was submitted that:
“Bearing in mind the above, [Alex] contends that it is impossible to know which excursions and camps Alex did not go on as his parents may not have been advised. However it is clear the intention of Branxholme was that he did not attend.”
This submission assumes that Alex may have been excluded from some excursions but does not identify any such event apart from one with which I will shortly deal. The submission fails to acknowledge that, at the next meeting to consider Alex’s behaviour which was held on 29 August 2006, the BMP was modified to read:
“Alex’s participation in any school excursions or camps or after school activities is to be negotiated with the Principal; if Alex cannot be adequately supervised at school because of these activities he should remain at home; Alex may continue to prepare for Music Night at the end of term 3 but his participation is subject to his continued good behaviour.”
133 The submission also overlooks Mrs Walker’s evidence that Alex went to all school excursions at Branxholme unless she refused permission.
134 The second matter which was referred to in final submissions related to an end of year camp in November 2005. The camp was to take place over two to three nights at a beach location near the Twelve Apostles. Attention was directed to some passages in Mr Castersen’s witness statement where he said:
“This was a camp which involved being at a beach in the water and in canoes. I spoke to Mr and Mrs Walker about Alex’s ability to manage his behaviour in an unstructured setting where he might run away. This was a camp that was not in a confined area and was close to water so I was concerned about Alex’s safety.
His behaviour at school was at such a level that I felt that we could not guarantee Alex’s safety (or if Alex was present, the safety of other students) and that it was better for Alex not to attend.”
In the event Alex did not attend. Mr Castersen’s evidence about why he refused to permit Alex to attend was not challenged. I accept his evidence.
135 The third matter referred to – the excursion to Kryal Castle – did not take place while Alex was at Branxholme. It took place in May 2009 while he was at Baimbridge. He was not permitted to attend for disciplinary reasons. In any event, the decision not to permit him to attend was made after the date of the second complaint and, for that reason, cannot be relied on by Alex in this proceeding.
136 I am not satisfied that Alex was prevented from attending school excursions while at Branxholme, save for the end of year trip in November 2005. The refusal on that occasion was prompted by Mr Castersen’s concern for Alex’s safety and the safety of fellow students. These were the real reasons for refusing permission for him to attend.
Attendance at Baimbridge
137 Alex complains that he was discriminated against by not being permitted to attend Baimbridge during the third term in 2007 and not being permitted, thereafter, to attend the school on a full time basis. It will be convenient to deal with these two complaints together.
138 At the beginning of 2007 Alex commenced his secondary education. He did so at the Good Shepherd Lutheran School in Hamilton. It was necessary for him to travel from Branxholme to Hamilton on the school bus.
139 Almost immediately Alex became disruptive in and out of the classroom. He was prone to use bad language, much of it sexually explicit. He was also using such language on the bus. The school regularly contacted Mrs Walker to tell her that this was occurring and that many complaints had been received from teachers, students and the bus driver.
140 By at least April 2007 Mrs Walker had come to the view that Alex’s behaviour at the Good Shepherd school was so bad that he may not be able to function in a school environment. She turned her mind to other options such as home schooling and distance education.
141 Towards the middle of the year Alex’s conduct at the Good Shepherd school had become so bad that the school asked Mr and Mrs Walker to remove him. They did so.
142 In June 2007 Mrs Walker went to Baimbridge and spoke to the principal, Mr Vecchiet. She told Mr Vecchiet that she wished to enrol Alex at the school. At that meeting Mrs Walker told Mr Vecchiet that Alex had been asked to leave the Good Shepherd School because that school could no longer cope with his behaviour.
143 Following the meeting, Mr Vecchiet contacted the regional office of the Department about the prospect of enrolling Alex. He was advised that, at Branxholme, Alex had engaged in some extreme behaviour, including overtly sexual behaviour, and that this had led to complaints by the parents of some of the other students. Mr Vecchiet formed the view that, if Alex was to be admitted to Baimbridge, it would be desirable for an aide or aides to be appointed to assist with Alex’s education. To this end he sought a formal direction to be given to Baimbridge to enrol Alex so that the chances of obtaining additional funds to engage an aide or aides would be improved. A decision was subsequently made that Alex would be admitted to Baimbridge.
144 In the meantime Alex undertook distance education in some subjects and on Tuesdays and Wednesday mornings he attended the SGAE in Hamilton where he participated in a programme designed for students aged between 15 and 19 years.
145 On 6 July 2007 the principal of the Good Shepherd School wrote a letter which outlined its concerns with Alex’s behaviour during his time there. The letter was sent to Baimbridge. The letter referred to Alex’s defiant attitudes to some teachers; his use of offensive language including language containing sexual innuendo; his use of computers to obtain access to “disgusting websites”; his disruptiveness in the classroom; his unwillingness or inability to complete even minimal work assignments; and kicking and swearing at fellow students.
146 On 18 July 2007 a meeting was held at Baimbridge to discuss strategies for Alex’s introduction to the school. The meeting was attended by Mr Vecchiet, some departmental officers from the region, Mr Scott McFadden, the middle school coordinator at Baimbridge, Ms Lauren Campbell, the network educational psychologist, and Ms Gaynor Eats, the integration coordinator at Baimbridge.
147 It was agreed at the meeting that it would be best for Alex if he did not commence at Baimbridge as a full time student. Rather, it was agreed, in principle, that he should commence by attending for short periods and progressively increase the time he spent at school. There would be a need for him to be supervised during recesses and for a male mentor to be appointed to assist him.
148 On 18 July 2007 Baimbridge made application to the Department for funding to employ an aide to assist Alex. The provision of funding was not approved until 19 October 2007.
149 After funding was obtained for an aide it took some weeks to obtain the services of an appropriate person. Shortly before Alex commenced to attend at Baimbridge, on 19 November 2007, Mr Peter Fry, a former principal of the school, was appointed to assist Alex.
150 Whilst awaiting funding Ms Eats prepared a more detailed plan for the introduction of Alex to Baimbridge. The plan provided for Alex to continue to attend SGAE on Tuesdays and on Wednesday mornings and with his distance education. Alex would attend Baimbridge on two mornings per week between 9:00 am and 12 noon. The reason that it was decided that there should be two half day attendances at Baimbridge during the transition stage was that longer periods in the school environment had previously proved stressful for Alex and it was thought that these stresses may have been exacerbated in a secondary school environment. Mrs Walker thought that it was advisable that such stresses be avoided if possible. He would receive one to one support from the aide outside the classroom structure. They were to work together on Alex’s distance education courses, science and technology, library, computer work and at the gymnasium. Alex was to have a recess time separate from other students. Baimbridge would fund four days of activities at SGAE for Alex until the end of 2007.
151 This plan was discussed with Mrs Walker and she agreed that it was appropriate. It was implemented. With hindsight she accepted that it had been successful.
152 Once he commenced at Baimbridge, Alex quickly established a good working relationship with Mr Fry. Mrs Walker expressed the opinion that Alex was enjoying the time he spent at Baimbridge and that he liked Mr Fry. Alex worked well during the final term of the year.
153 On 11 December 2007 a programme support group met at Baimbridge to review Alex’s progress. Those attending included Mr and Mrs Walker and Ms Eats. It was agreed that Alex would recommence year 7 in 2008 and would move into a classroom with other students.
154 Mr Fry’s appointment concluded at the end of the academic year.
155 At the start of 2008, Alex attended Baimbridge on Monday and Thursday mornings. He attended classes and the morning recess period. He spent one and a half or two days each week at SGAE and continued to pursue courses by distance education. Mrs Walker considered that these arrangements worked quite well.
156 On 19 February 2008, Ms Bounds reviewed Alex’s progress and noted that his progress at SGAE and Baimbridge had both been positive and that the 2008 academic year had “started well”.
157 Alex had the full-time support of integration aides.
158 It was, unfortunately, not long before Alex started to misbehave both inside and out of the classroom. When interacting with other students in the playground he used sexual language and spoke about pornography. This disturbed other students and complaints were made to teachers. He also seemed preoccupied with violence. On 21 April 2008, for example, Ms Eats noted that: “Alex was OK today although it is disturbing the number of times that ‘killing, shooting, fighting’ comes up in [h]is conversations.” His behaviour in the classroom tended to deteriorate as the morning progressed. On 24 April 2008, Ms Eats noted that:
“Alex started out in class fine. His behaviour did deteriorate as the morning progressed. He said he wasn’t going to the ANZAC service at school. I explained that it was a whole school activity and that he would be going. On the way to assembly, he made derogatory remarks about the returned servicemen who were waiting to enter the assembly.”
159 Program support group (“PSG”) meetings took place on a regular basis during 2008. They were attended by Mrs Walker and Baimbridge staff members. Some meetings were attended by representatives of the SGAE and the Department’s regional office.
160 At the PSG meeting held on 13 March 2008, concern was expressed about Alex’s behaviour in the playground. It was agreed that Alex would stay in the classroom for the first fifteen minutes of recess and go outside under supervision for the rest of the break. If Alex chose not to go outside (which he often did not wish to do) he would be allowed to remain in a tutorial room in the school building.
161 At the PSG meeting on 29 May 2008, Mrs Walker requested that Alex not attend certain classes so that he could work with his aide to complete the work requirements of a science course which he was pursuing by distance education. This request was agreed to.
162 At the PSG meeting held on 4 September 2008, Mrs Walker asked, for the first time, that the time spent by Alex at Baimbridge should be increased. Mr Vecchiet expressed the opinion that, while it was desirable that Alex’s attendance time should increase progressively, he did not consider that Alex was ready to spend more time at school. He was concerned that any increase would put Alex under additional stress and would make it more likely that he would behave inappropriately toward staff and other students.
163 By the time of the 6 November 2008 PSG meeting, Mr Vecchiet had come to the view that Alex was ready to spend more time at school. Mr and Mrs Walker and the others present agreed that Alex should commence attending on Thursday afternoons and Friday mornings. This meant that on one day (Thursdays), Alex would be at the school for a whole day. On this day, he would be present for the luncheon recess. It was agreed that, if he did not wish to go into the playground, he could go to the library. When subsequently given a choice, Alex expressed a preference for going to the library at lunchtimes.
164 At the 3 December 2008 PSG meeting, Mrs Walker asked that Alex be permitted to attend Baimbridge for three full days in 2009. On the other two days, he would go to SGAE. This request was agreed to because Baimbridge staff noted improvements in Alex’s behaviour at school in the second half of 2008.
165 In 2009, Alex entered Year 8 at Baimbridge. He attended Baimbridge on Mondays, Thursdays and Fridays for the whole day. On Tuesdays and Wednesdays, he went to SGAE.
166 Not long after the start of the academic year, school staff noted that Alex was getting tired on Fridays and that this was contributing to poor behaviour. This assessment was concurred in by Mrs Walker.
167 At a PSG meeting, held on 17 February 2009, a Departmental officer suggested that consideration should be given to varying the arrangements so that Alex attended SGAE on Mondays so that he could participate in a vocational training program. Mr and Mrs Walker agreed that the suggestion should be pursued. When, however, they were subsequently advised that such a variation could be arranged, they elected not to change the existing arrangements.
168 During Term 1 of 2009, Mr Vecchiet noted a significant deterioration in Alex’s behaviour. This led to a decision, at the PSG meeting held on 20 May 2009, that Alex be provided with activities during the recess and lunchtime breaks which kept him apart from other students. Mr and Mrs Walker agreed to this proposal.
169 Alex did not attend Baimbridge during Term 3 of 2007 because of preparations which were being made to ensure that the experience of attending the school would be beneficial for him and could be managed in his best interests. Once Mrs Walker had made application for Alex to be admitted to Baimbridge, Mr Vecchiet took time to assess Alex’s needs. This was hardly surprising given that Alex had an established history of disruptive behaviour at Branxholme and Good Shepherd. Once he was appraised of Alex’s history Mr Vecchiet did not seek to contrive reasons to refuse Mrs Walker’s application. On the contrary, he set about planning a smooth transition for Alex into the secondary school environment. This included applying for and obtaining funding to ensure that Alex would be able to be cared for by a full-time male aide. Once funding was approved, it took further time to recruit a suitable aide. As soon as the aide was available Alex was invited to commence his studies at Baimbridge. While a funding decision was pending, staff at Baimbridge started work on developing a transition plan under which Alex would be introduced to the secondary school environment while at the same time pursuing other studies at SGAE and through distance education. As the plan was developed Mr and Mrs Walker were consulted. They were supportive of the proposed arrangements.
170 The not unreasonable time taken to complete these processes explains why it was that Alex was not admitted to Baimbridge during Term 3 in 2007. He was not excluded because of his disabilities.
171 In accordance with the transitional arrangements Alex commenced to attend at Baimbridge in mid-November 2007. A reason that he did not do so on a full-time basis was that he was also attending SGAE and pursuing distance education. There was also an understandable and justified concern that he should be introduced to the unfamiliar environment of secondary education at Baimbridge slowly so as not to place him under too much stress. These reasons were explained to Mr and Mrs Walker and were accepted by them. When put into place the arrangements worked satisfactorily.
172 Alex was not prevented from attending Baimbridge on a full-time basis at the end of 2007 because of his disability.
Travel on the school bus
173 Alex complains that he was discriminated against in 2008 by not being permitted to travel from his home to Baimbridge on the school bus.
174 During the first half of 2008, Mr and Mrs Walker made private arrangements for transporting Alex to Baimbridge.
175 At a PSG meeting held on 18 July 2008, Mrs Walker raised, for the first time, the proposal that Alex might travel on the school bus. Mr Vecchiet expressed concern that, in an unsupervised environment, Alex might misbehave in such a way as to endanger the safety of those on the bus. He was concerned that antisocial behaviour by Alex might lead to fighting with other students which could, in turn, distract the driver. Mr Vecchiet was not prepared to support the proposal.
176 Mrs Walker raised the issue again at a PSG meeting which was held on 4 September 2008. Again, Mr Vecchiet expressed his reluctance to agree to Alex travelling on the bus. He indicated that he would be prepared to reconsider the issue if he observed a consistent improvement, over time, in Alex’s behaviour.
177 At the PSG meeting held on 6 November 2008, Mrs Walker again raised the issue. She suggested that any risk of Alex misbehaving on the bus could be minimised were he to sit at the front near the driver. Those present (who did not include Mr Vecchiet) agreed. On 18 December 2008, further consideration was given to the proposal at a meeting between Mrs Walker, Mr Vecchiet and staff from Baimbridge and the regional office of the Department. It was agreed that, in 2009, Baimbridge would engage a supervisor who could travel with Alex on the bus for a trial period. Mrs Walker agreed to such a trial.
178 Alex commenced to travel on the school bus on 9 March 2009 in company with the supervisor. The trial proved to be successful and he commenced travelling unsupervised from the start of Term 2 that year.
179 No request was made by Alex or on his behalf for him to be permitted to travel on the school bus before 18 July 2008. It cannot, therefore, be said that the Department prevented him from travelling on the bus throughout 2008.
180 When the issue was raised at the mid-year PSG meeting, Mr Vecchiet was not prepared to authorise Alex’s travel on the bus because of his concerns for the safety of other students and the driver. There was good reason for his reservations. Alex, to the knowledge of Mr Vecchiet, had a long history of aggressive (and sometimes violent) conduct toward fellow students. This had occurred in the supervised environment of schools. On the bus he would be unsupervised. I accept Mr Vecchiet’s evidence that it was because of his concerns about the safety of the driver and the other students travelling on the bus that he did not respond positively to Mrs Walker’s proposals in the latter part of 2008. He did not discriminate against Alex because of Alex’s disabilities. Furthermore, he did not treat Alex less favourably than he would have treated other students who did not have such disabilities but in respect of whom he harboured the same concerns. They too would not have been allowed to travel unsupervised.
INDIRECT DISCRIMINATION
181 Alex claimed to have been prejudiced by indirect discrimination perpetrated by the Department. The bases on which he sought to advance this part of his case were far from clear. There were material differences in the way the indirect discrimination claim was opened and the way in which it was dealt with in final submissions. There were also material variations in the way the case was put in the amended statement of claim, the contentions of fact and law and the outline of submissions which were filed. In particular, there was a failure to identify with any clarity the requirements or conditions with which Alex was said to have been required to comply to his detriment. They should have been identified with precision: see NSW v Amery (2006) 230 CLR 174 at 212 (per Kirby J). The failure to do so has made my task even more difficult than it otherwise would have been.
182 In his amended statement of claim at paragraph 22, Alex pleaded that the Department had indirectly discriminated against him within the meaning of s 6 of the DDA. The following particulars were subjoined to the paragraph:
“(a) the Respondent has imposed a requirement or condition that the Applicant access his education without the assistance the Applicant required;
(b) the Applicant is unable to comply with the requirement or condition, and;
(c) the majority of students without the Applicant’s disabilities can comply with the requirement or condition and;
(d) the requirement or condition is not reasonable having regard to the circumstances.”
These particulars were simply a paraphrase of the statutory definition of indirect discrimination contained in s 6 of the DDA.
183 The assistance which Alex said that he required was identified in paragraph 16 of his amended statement of claim. He pleaded that his education required:
“(a) the formulation and provision of an Individual Education plan based upon proper information [including opinions of experts] concerning the applicant so as to address his disabilities;
(b) proper implementation of the Individual Education plan, and;
(c) one to one assistance in his academic subjects from a teacher or teacher’s aide who is trained in the management of his disabilities and who can implement the Individual Education Plan.”
The “opinions of experts” referred to in paragraph 16(a) are identified in paragraph 15A. It will be necessary to refer to these opinions in greater detail later in these reasons.
184 In his contentions of fact and law, Alex identified a broader range of assistance which he said he required. He said that he required:
“(a) the formulation, provision and proper implementation of an Individual Education Plan;
(b) the formulation, provision and proper implementation of a Behaviour Management Plan; and
(c) one to one assistance in his academic subjects from a teacher or teacher’s aide who is trained in the management of his disabilities and who can implement the Individual Education Plan and Behaviour Management Plan;
(d) Program Support Group meetings.”
185 As I understand the case which is put on Alex’s behalf, it is that it was a condition or requirement, imposed on him by the Department, that he undertake his education without the benefit of the assistance or arrangements which are referred to in the two preceding paragraphs.
186 In oral submissions, Alex’s counsel seemed to suggest that there were further “conditions” on which he relied. Some of them appear as particulars subjoined to paragraph 14 of the amended statement of claim. They were that:
When at Branxholme, he not attend in the school yard during recess and lunchtimes, and not join other students on excursions;
He only attend Baimbridge on two mornings per week.
The Department refused and failed to provide proper funding for Alex to receive full time education, “especially at Baimbridge”.
The Department “invented and applies a funding regime which discriminates against [Alex] because it fails to take his particular circumstances into account.”; and
The Department “invented rules for the purpose of preventing [Alex] travelling on the school bus, and it intends unless restrained to apply those rules and not to permit [Alex] to travel on the school bus.”
187 The Department contended that Alex had failed to identify any requirements or conditions within the meaning of s 6 of the DDA and that, in any event, no terms and conditions of the kind relied on by Alex had, in fact, been imposed on him.
188 The question posed by ss 6 and 22(2)(a) and (c) of the DDA in a case such as the present is whether the educational authority, by imposing requirements or conditions which meet the criteria specified in s 6, thereby denied or limited the student’s access to any benefits provided by it or subjected the student to any other detriment: cf the formulation of Raphael FM in Minns v New South Wales [2002] FMCA 60 at [172].
Requirements or Conditions
189 As Drummond J observed in Sluggett v Human Rights and Equal Opportunity Commission (2002) 123 FCR 561 at 577, the terms “requirement or condition” import “the notion of compulsion or obligation.”
190 These terms are not narrowly to be construed. In Catholic Education Office v Clarke (2004) 138 FCR 121, a Full Court considered a claim of disability discrimination which was made on behalf of a deaf student. His complaint was that he was required to participate in and receive instruction at school without the assistance of an Auslan interpreter. The trial judge found that the student had been discriminated against on the ground of his disability contrary to s 22(1)(b) of the DD Act. The Full Court dismissed the respondent’s appeal. In dealing with the issue of whether the school had imposed a “requirement or condition” on the student Sackville and Stone JJ (with whom Tamberlin J agreed) said (at 143) that:
“103 Second, the expression ‘requirement or condition’ in s 6 of the DD Act should be construed broadly to include any form of qualification or prerequisite, although the actual requirement or condition should be formulated with some precision: Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 at 185, per Dawson J; at 195-196, per McHugh J; Waters v Public Transport Commission, at 393, per Dawson and Toohey JJ; at 406-407, per McHugh J. In this respect, the legislation should be given a generous interpretation and an alleged discriminator should not be permitted to evade the statutory prohibition or indirect discrimination by defining its services so as to incorporate the alleged requirement or condition: Waters v Public Transport Commission at 394, per Dawson and Toohey JJ.
104 Third, an alleged discriminator may be found to insist on compliance with a ‘requirement or condition’ within s 6 even though the requirement or condition is not explicitly imposed. It is sufficient for the requirement or condition to be implicit in the conduct which is said to constitute discrimination: Waters v Public Transport Commission at 360, per Mason CJ and Gaudron J; at 393, per Dawson and Toohey JJ; at 407, per McHugh J. Hence in Waters v Public Transport Commission itself, it was held to be open to the Victorian Equal Opportunity Board to find that the removal of conductors from Melbourne’s trams amounted to a requirement or condition that disabled people could fully avail themselves of the services only if they could use the trams without the assistance of conductors: see at 361, per Mason CJ and Gaudron J.
105 The appellants did not submit that the primary judge had failed to advert to or had incorrectly stated these principles. His Honour pointed out (at 351 [45]) that it is not inherent in high school education that a student undertake classes without the aid of an interpreter. Indeed, in the computer age it is not necessarily inherent that instruction be given in English or any other spoken language. His Honour also regarded it as significant that the appellants’ schools were open for the reception and education of students with disabilities, including profound deafness. As his Honour observed, such students may be unable to receive or offer communications by means of any spoken language, except with the aid of an interpreter.”
191 A similarly framed complaint was accepted, in Hurst v Queensland (2006) 151 FCR 562, where the requirement was identified by the Full Court as being that the student “be taught in English (including signed English) without the assistance of an Auslan teacher, or an Auslan interpreter.”
192 Other “requirements” which have been accepted as falling within the terms of s 6 of the DDA in cases involving the provision of educational services include:
A requirement that a student comply with the conduct required by the school discipline policy: see Minns at [247];
A requirement that students use course materials which were provided by the educational institution: see Hinchliffe v University of Sydney (2004) 186 FLR 376; and
A requirement that students at a school utilise a toilet in another building rather than one in the same building as their classroom: see Travers v New South Wales (2001) 163 FLR 99.
193 Whether or not such a term or condition has been imposed is a question of fact: see Waters v Public Transport Corporation (1991) 173 CLR 349 at 394 (per Dawson and Toohey JJ), 408 (per McHugh J).
194 It is clear from these authorities that considerable latitude is afforded to applicants in formulating the requirements or conditions about which they complain. Nonetheless, a reasonable degree of precision is necessary when relevant requirements or conditions are being identified. A respondent is entitled to know what requirements or conditions it is said to have imposed on an applicant. In many cases this will not be difficult because the applicant will be relying on some written rule or prerequisite which has been formulated by the respondent. In a case such as the present, however, where an applicant seeks to rely on inaction by an educational authority, clarity of the claim is essential. Without it the respondent will be unable to determine whether it has or has not imposed such a condition or to formulate defences on the ground that one or more of the criteria prescribed by s 6 of the DDA have not been satisfied.
195 This necessary precision is notably lacking in Alex’s case as pleaded and argued.
(a) Formulation, provision and implementation of an individual education plan
196 The first requirement identified by Alex was that he access his education without “the formulation and provision of an Individual Education Plan based upon proper information [including opinions of experts] concerning the applicant so as to address his disabilities” and “the proper implementation” of such a Plan. Alex’s complaint, as pleaded, covers the period 2001 to 2009. The “opinions of experts” are identified in particulars subjoined to paragraph 15A of the amended statement of claim. The opinions on which Alex relies were given by a number of persons, claimed by Alex to be “experts”. These reports were provided in the period between 25 August 2000 and 22 April 2008. The diagnoses and recommendations contained in the reports, not surprisingly, varied over this period as Alex’s education progressed, he responded to psychological and other testing and his behavioural traits were analysed. In all the reports contained 190 recommendations. Alex complains that the Department discriminated against him by failing to implement 127 of these recommendations. The particulars subjoined to paragraph 15A cover 29 pages of the 37 pages of the amended statement of claim.
197 The phrasing of this first requirement may be understood as suggesting that a single individual education plan should have been formulated to guide the provision of educational services to Alex throughout the nine year period. Such a suggestion is highly unrealistic. As the evidence, to which I will shortly refer, makes clear plans were developed on an ongoing basis to cater for Alex’s needs as he moved through the educational system.
198 Other difficulties attend the formulation of this requirement. One of them is the reference to “proper information.” The Court and the respondent are left to speculate on what information Alex alleges to be “proper” and that which he does not. The problem is compounded when the adjective “proper” is again used, this time, in relation to the implementation of the plan. Apart from the failure to identify precisely how the implementation lacked propriety, the phrase “proper implementation” implies, contrary to the earlier complaint of failure to formulate and provide for such a plan, that one did, in fact, exist.
199 A further difficulty arises because many of the recommendations made by psychologists and others who were consulted about Alex’s education were considered, accepted and acted on by Branxholme and Baimbridge. They were incorporated in individual education plans and utilised to assist Alex’s education. If the recommendations which were acted on formed part of the “proper information”, the Department would be able to submit (as it does) that it did not impose this condition on Alex.
200 A series of written individual education plans were tendered in evidence. The first of these was created at Branxholme on 29 August 2006. It refers to earlier “plans, diaries and strategies” which had been implemented while Alex was at the school. These plans had not been recorded in the same format as the August 2006 document. Despite this, Ms Smith was aware of the contents of the specialist reports on Alex which had been provided to the school from the time at which he was first enrolled. She had regard to those reports when structuring Alex’s academic program and they guided her in making adjustments to her pedagogical techniques when dealing with Alex. The need for Alex to be taught in small groups and the provision of assistance by teacher’s aides were examples of such adjustments. The plan identifies Alex’s learning difficulties and his disabilities. It contains references to:
Specialist assessments which might be made in order to assess Alex’s progress.
What were described as “informal observations” such as that Alex liked to work on computers, that he “reads well; prefers non-fiction; likes magazines”, is good at maths, has trouble finishing work and enjoys construction.
Various curriculum adjustments which might be made to assist Alex such as preparing him in advance for any teaching methods which might not be familiar to him, providing one on one support as required in the classroom and discussing what adjustments might be made to ensure that Alex is able to attend excursions.
Various “routine adjustments” such as the presence of an adult at all times, the reallocation of language support funds, using integration funding and funds from the school council in order to provide Alex with a teacher’s aide, the provision of a dedicated computer for Alex with his own logon, the giving of advance warning, if possible, of the absence of familiar teachers and the lunchtime and recess regime earlier described.
Assessment adjustments needed to accommodate Alex’s needs.
Under the heading “implications for learning”, notations such as staff needing to use direct language and specific instructions when dealing with Alex, assisting Alex understanding what language is appropriate at particular times, particularly when dealing with his peers and younger children and the promotion of the use by him of word processors for writing.
A list of psychological reports (including some of the reports referred to in paragraph 15A of Alex’s amended statement of claim) and which appear on the school file is provided. The plan lists goals for learning improvement, the sequence in which learning is to occur and strategies to assist Alex achieve his goals in the classroom and at home. The report concludes by detailing the specific roles which are to be performed by particular members of the school staff to assist Alex.
201 A copy of this plan, which had been prepared by Mr Crossley, Ms Smith and another teacher was sent to Mr and Mrs Walker. It was subsequently discussed at a number of meetings which were attended by Mr Crossley and Mr and Mrs Walker and others. It was amended from time to time.
202 On 8 September 2006 co-incidentally Ms Lynne Kidman, one of the Department’s regional staff members, prepared what she described as an “interim management support plan” for Alex. This plan’s main concern was managing Alex’s behaviour at school.
203 On 12 September 2008, at a PSG meeting, Mr Crossley presented an amended individual learning plan and Ms Kidman presented an alternative interim individual learning plan. No agreement could be reached on the terms of a final plan. It was, however, agreed that Ms Kidman would draft an integrated learning and behaviour plan to be sent to members of the programme support group including Mr and Mrs Walker.
204 On 2 October 2006 Mr Crossley and Ms Margaret Cameron (who was, at that time, filling in for Ms Smith) prepared a new individual learning plan for Alex for Term 4. This plan incorporated proposals drawn from Ms Kidman’s alternative plan. As amended, the plan was accepted by Mr and Mrs Walker.
205 Further discussion of the individual learning plan occurred at a PSG meeting held on 19 October 2006. Mr Crossley agreed to review the plan in the light of certain matters raised during the meeting.
206 At a PSG meeting at Baimbridge, on 29 May 2008, Mrs Walker requested that an individual learning plan be drafted for Alex. The Baimbridge staff agreed to this suggestion. Later in the year a copy of a written plan, which had been developed by Baimbridge staff, was provided to Mr and Mrs Walker for review and comment. At a PSG meeting on 6 November 2008 Mr and Mrs Walker said that they would review the plan. On 24 November 2008 Mrs Walker sent an e-mail to Ms Eats in which she suggested some minor changes to the plan. On 2 December 2008 Mr and Mrs Walker wrote to Mr Vecchiet and advised that the draft plan was unacceptable. On the following day, at a PSG meeting, Mrs Walker outlined her objections to the plan. She said that recommendations which had been made by Ms Bounds had not been incorporated. Mr Vecchiet asked Mrs Walker to detail the omissions. Mrs Walker was not able to do so. She said that she wanted to go through the plan again with someone who was an expert in autism. A further meeting was scheduled to discuss the plans.
207 That meeting occurred on 18 December 2008. Following discussion in which some amendments were proposed, it was agreed that Ms Kidman would prepare the next draft and circulate it for discussion in January 2009. This draft was provided to Mr and Mrs Walker in mid-January.
208 On 12 February 2009 Mr and Mrs Walker wrote to Mr Vecchiet and demanded that, by 5:00 pm on the following day, they be told when the plan would be finalised. The issue was discussed at a PSG meeting on 17 February 2009. Mr and Mrs Walker said that they would not agree to the draft plan until it had been seen by Ms Bounds. Ms Eats agreed to forward the draft to Ms Bounds but said that Baimbridge would work with the current drafts pending any response by Ms Bounds.
209 At a PSG meeting on 31 March 2009 Mrs Walker said that she had spoken to Ms Bounds and that Ms Bounds had thought that the draft was good. In a report dated 4 March 2009 Ms Bounds expressed her substantial support for the plan.
210 It is clear that, throughout Alex’s time at Branxholme and, during his early years at Baimbridge, the schools did develop and, periodically, revise education plans which were tailored to meet Alex’s specific needs. In preparing these plans the teachers concerned did have regard to professional reports prepared by those who had examined Alex and had provided reports which had been made available to the schools. The independent expert, on whom Mr and Mrs Walker principally relied, Ms Bounds, not only made suggestions which were incorporated in successive plans: she reviewed the effectiveness of those plans and made generally favourable comments about them.
211 I do not consider that the first requirement which Alex alleges was imposed on him can be regarded as a “requirement” within the meaning of s 6 of the DDA. Furthermore, I do not accept that Alex pursued his studies at Branxholme and Baimbridge without the benefit of an individual education plan. Such plans were formulated and implemented. They were not, apart from diary entries, reduced to writing before 2006. Nonetheless, both written and unwritten plans existed and were implemented by Alex’s teachers.
212 To the extent that Alex’s complaint can be understood as referring to his first year of full-time study at Baimbridge it must also be rejected. It is literally true to say that no individual education plan had been settled and agreed to by Mr and Mrs Walker by the end of 2008. It does not follow that no plan existed to guide Alex’s education. The transition plan, which had been discussed with and agreed to by Mr and Mrs Walker, was prepared at the end of 2007 and was implemented once Alex started to attend classes at the beginning of 2008. This transition plan served the same purposes as did the earlier and later individual education plans. Mrs Walker did not ask Baimbridge to prepare an individual education plan for Alex until the middle of 2008. Her request was acceded to and a draft plan was prepared. Despite Mr and Mrs Walker’s unwillingness to agree to the draft it was implemented by Baimbridge towards the end of 2008. Mrs Walker failed to raise any objections of substance to the draft despite having the opportunity to do so and despite having the benefit of Ms Bound’s professional advice. In these circumstances it cannot be said that Alex’s education at Baimbridge in 2008 was prejudiced by a requirement that he be educated without the formulation and provision of such a plan. Moreover no such requirement was imposed upon him by Baimbridge.
(b) Formulation, provision and implementation of a behaviour management plan
213 The second requirement which Alex says was imposed upon him was that he access his education “without … the formulation, provision and proper implementation of a Behaviour Management Plan.”
214 The formulation of this requirement suffers from the same shortcomings as does the alleged requirement relating to an individual education plan. It was not a “requirement” of the kind comprehended by s 6 of DDA.
215 Furthermore, there is a large volume of evidence (much of it provided by Mrs Walker) which establishes that, both at Branxholme and Baimbridge, many such reports were prepared in an effort to improve Alex’s behaviour. That evidence is uncontradicted and need not be essayed at length. As early as November 2004 Mr Castersen spoke to Mrs Walker about the need for strategies being developed to manage Alex’s behaviour. Mr Castersen told Mrs Walker that it would be necessary to have weekly meetings to report on Alex’s behaviour. Alex’s behaviour was subsequently discussed in the course of PSG meetings and return from suspension meetings throughout his remaining years at Branxholme. A written behavioural management plan was prepared in July 2006 following consultation between Mr Crossley, teachers and professional advisors. The plan was discussed, on 28 July 2006, with Mrs Walker and Alex. Both Mrs Walker and Alex signed the plan. The behaviour management plan was the subject of further discussion as the year progressed and revised drafts were prepared. They were discussed at PSG meetings and reviews were conducted to consider objections raised by Mr and Mrs Walker.
216 The issue of a behaviour management plan was not raised at Baimbridge until May 2008 and it was considered in conjunction with the individual education plan which Mrs Walker had asked be prepared at the same time. The development of the behaviour management plan passed through the same processes which were followed in relation to the individual education plan and which I have described earlier in these reasons.
217 Throughout Alex’s time at Baimbridge (including the time during which the formal behaviour management plan was being negotiated) the school had in place strategies which were designed to pre-empt, control and, where necessary, respond to anti-social behaviour on Alex’s part. These strategies were implemented with some measure of success.
218 In argument, Alex contended that the behaviour management plans were not “properly” implemented. The thrust of his argument was that, because of his disabilities, he ought not to have been subjected to the disciplinary regimes which were maintained at Branxholme and Baimbridge. He should have been treated differently (so he submitted) from the way in which students who did not suffer from his disabilities would have been treated had they transgressed in the same manner. The Department, on the other hand, contended that it was appropriate and necessary to expect Alex to abide by the same rules as other students in order to avoid the disruption of classes and to protect other students and teachers from physical and verbal abuse. Had this second requirement been directed towards the imposition of a requirement that Alex conform to the student conduct rules at the two schools, these competing contentions would have had to have been considered in the context of assessing the reasonableness of such a requirement. It is sufficient, for present purposes, to note that the requirement was not so formulated.
219 Even if more care had been devoted to framing this alleged requirement, it could not have succeeded because, as a matter of fact, behaviour management plans were formulated, provided and implemented in relation to Alex at both Branxholme and Baimbridge.
(c) Provision of one-to-one assistance
220 The third requirement which Alex submits was imposed on him was that he access his education without “one-to-one assistance in his academic subjects from a teacher or teacher’s aide who [was] trained in the management of his disabilities and who [could] implement the individual education plan and behaviour management plan.”
221 As drafted, this “requirement” alleges a failure by the Department to provide multiple services to Alex. The failures include (i) not giving him one-to-one assistance from a teacher or teacher’s aide; (ii) who was trained in the management of his disabilities; (iii) who could implement the individual education plan; and (iv) who could implement the behaviour management plan. Although I have reservations about the manner in which this “requirement” is framed, I am prepared to assume, in Alex’s favour, that it identifies requirements to which s 6 of the DDA applies.
222 It remains to be determined whether such a requirement or requirements was or were, in fact, imposed by the Department.
223 The Department contended that no such condition or requirement was ever imposed on Alex. It submitted that, at Branxholme, at all material times, he “regularly had an aide assisting him with his education.” Similarly, it was submitted, Alex had an aide working with him at all times when he was at Baimbridge.
224 Alex did not have “one-to-one” assistance at all times whilst he was at Branxholme if this term is to be understood as describing a regime under which, when Alex was in the classroom, he was supported by a teacher or teacher’s aide who gave him his or her exclusive attention. In Grade 2 he was part of a small group to which Ms Smith gave particular attention. No aide was employed that year or in the following year. In Grade 4 Alex was also taught as part of a small group. Ms Smith had the assistance of a teaching aide on four days each week. Both Ms Smith and the aide devoted particular attention to the small group of which Alex was a member. In Grade 5 Ms Smith was assisted by three aides, two of whom worked mainly with Alex. In Grade 6 Ms Smith had the assistance of two aides. Alex was again part of a small group which received particular attention from Ms Smith and the aides.
225 Whilst there can be no doubt that a great deal of personal attention was given to Alex at Branxholme by teachers and aides he was required to undertake his education at that school without “one-to-one assistance in his academic subjects.”
226 Mr Castersen said that “a vast amount” of one-to-one assistance was provided to Alex during his time at Branxholme. Mr Crossley spoke of “a high degree of one-to-one assistance” being provided which he considered “was completely adequate” for Alex’s needs. Both principals considered that the degree of individual support which was accorded to Alex during his years at Branxholme was more than sufficient to meet his needs.
227 From the time he commenced attending Baimbridge towards the end of 2007 until April 2009 Alex was provided with an aide who gave exclusive attention to him whilst he was at school. In the early part of 2009 he also had the assistance of a supervisor when travelling on the school bus.
228 There was no evidence called which would have supported a contention that Alex’s teachers at Branxholme and the aides who assisted them were not trained to manage Alex’s disabilities and could not implement the individual education and behaviour management plans which were drawn up to assist him.
(d) Programme support group meetings
229 The fourth requirement identified by Alex which was said to have been imposed on him was that he access his education without the assistance provided by PSG meetings.
230 As the title suggests these groups are formed on an ad-hoc basis to provide support to a student and the teachers of a student who requires special assistance by reason of a disability. In Alex’s case the group, at both schools, convened on a regular basis. Those attending varied from meeting to meeting. The core members of the group were the principal, Alex’s class teacher and Mr and Mrs Walker. Some meetings were also attended by psychologists and other specialists. The group reviewed Alex’s progress and conduct and was involved in devising education programmes and strategies to assist Alex. The group did not implement these programmes and strategies. It had a consultative rather than a determinative role.
231 For these reasons I doubt that the absence of assistance from such a group (if that were the case) had a sufficiently proximate nexus to the provision of educational services to Alex as to constitute a “requirement” for the purposes of s 6 of the DDA. In any event, there is no dispute that such groups met regularly at both schools to deal with issues relating to Alex’s education. The extent to which the deliberations of the groups assisted Alex’s educational progress was a matter of contention. There is no doubt, however, that proposals emerged from such meetings which had the support of Mr and Mrs Walker and which were subsequently implemented by the schools. The language employed assumes that assistance was provided by group meetings but that, contrary to the fact, the Department imposed a requirement that Alex was not to receive the benefit of that assistance in the class room or the playground. It is possible that the “assistance” referred to was constituted by suggestions made in the course of group meetings by Mr or Mrs Walker but which were not adopted. Whether this be intended or not, no attempt has been made to distinguish between proposals which were regarded as beneficial and those which were not.
232 I do not regard this requirement as having been framed with sufficient precision and, insofar as it is intelligible, the evidence fails to satisfy me that any such requirement was ever imposed by the Department.
(e) School attendance - Branxholme
233 The fifth requirement relied on by Alex was that he not attend in the school yard during recess and lunchtimes at Branxholme and not join other students on school excursions.
234 Although expressed as a single requirement, Branxholme did impose such limitations at certain times on Alex. The question is whether these limitations constituted a requirement within the meaning of s 6 of the DDA. In my opinion they did not.
235 The distinction between direct and indirect discrimination was explained by Dawson and Toohey JJ in Waters v Public Transport Corporation (1991) 173 CLR 349 at 392, in these terms:
“Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race). 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 is 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.”
See also at 357 (per Mason CJ and Gaudron J); New South Wales (Department of Education) v Human Rights and Equal Opportunity Commission (2001) 186 ALR 69 at 77-8 [39], [40] (per Emmett J).
236 The decisions that Alex should stay out of the school yard during recreational breaks and that he not attend an end of year excursion were clearly not facially neutral. They were decisions which applied expressly to Alex. They were discriminatory in the direct sense. Given that the definitions of direct and indirect discrimination are mutually exclusive, these pleaded requirements cannot be “requirements” within the meaning of s 6 of the DDA.
(f) School attendance - Baimbridge
237 The sixth “condition” which Alex says was imposed on him was that he only attend at Baimbridge on two mornings per week.
238 There is no dispute that, for most of 2008, Alex only attended Baimbridge on two mornings per week. This occurred as part of a transition plan which, initially at least, had the support of Mr and Mrs Walker. At other times during the week Alex had commitments at SGAE and to his distance education. In these circumstances it is hard to accept that any such condition was “imposed” on Alex. In the latter part of the year, however, Mrs Walker asked for the time Alex spent at Baimbridge to be increased and Mr Vecchiet declined to accede to this request when it was first made. I am, therefore, prepared to accept that, at least at that time, such a condition was imposed on Alex.
239 I am not, however, able to accept that this was a condition within the meaning of s 6 of the DDA. As was the case with the attendance requirements at Branxholme, the condition was specifically imposed on Alex and was not, on its face, neutral.
(g) Funding for Alex to receive full-time education
240 The seventh “condition” identified by Alex was that the Department refused and failed to provide proper funding for him to receive a full-time education, “especially at Baimbridge”.
241 This attempt to formulate a “condition” fails. It lacks the necessary precision. There is no doubt that the Department, during relevant times, provided funding for Alex’s education. This included the cost of engaging teachers and aides to assist Alex. The level of funding which would constitute “proper” funding is not identified. Uncertainty also attends the phrase “a full time education”. It may be, as the reference to Baimbridge suggests, that what is meant is a full-time education at a particular school. It was not disputed, however, that Alex attended Branxholme on a full-time basis subject to absences for medical reasons and when he was suspended. When he was not at Baimbridge during the school year he was pursuing education at SGAE and through distance education. It seems to be implied that, when taken as a whole, these arrangements did not constitute “full time education”.
242 Despite being alert to the need for a generous interpretation to be accorded the DDA, I do not accept that this condition has been expounded with the required degree of precision.
(h) Invention and application of funding regime
243 The eighth condition referred to by Alex alleged that the Department invented and applied a funding regime which discriminated against him because it failed to take his particular circumstances into account.
244 This is a complaint. It is not a “condition or requirement” within the meaning of s 6 of the DDA.
(i) Invention of rules about bus travel
245 The ninth condition referred to in the pleadings was that the Department “invented rules” for the purposes of preventing Alex travelling on the school bus, and it intended, unless restrained, to apply those rules and not to permit Alex to travel on the bus.
246 This too is a complaint coupled with an allegation relating to apprehended future conduct. It is not a “condition or requirement” within the meaning of s 6 of the DDA.
(j) Summary
247 The only “requirement or condition”, pleaded by Alex, which I have accepted is a “requirement or condition” of the kind comprehended by s 6 of the DDA is the requirement that he access his education at Branxholme without “one-to-one assistance in his academic subjects.” Although Alex was given individual assistance while he was at Branxholme this did not occur at all times.
248 It is, therefore, necessary to determine whether the other elements of the definition of indirect discrimination are present.
Comparator groups
249 Section 6(a) of the DDA required that it be established that any requirement or condition imposed on an aggrieved person be one “with which a substantially higher proportion of persons without the disability comply or are able to comply.” If a complainant established the existence of a relevant requirement or condition, it was then necessary to make the comparison, mandated by s 6(a), between appropriately defined groups: see Clarke at 145 [113]. The identification of appropriate comparator groups was considered by Black CJ in Queensland v Forest [2008] FCAFC 96 at [7]. His Honour there said:
“Section 6(a) therefore directs attention at the outset to two groups of people: persons with the disability that affects the aggrieved person and persons without that disability. Those with the disability are usually, in this field of discourse, referred to as comprising the comparator group, and those in the broader group are referred to as the base group. Discrimination occurs if the requirement or condition impacts more severely upon persons with a disability than it does upon persons without the disability. Since the requirement or condition may impact upon both groups, the Act requires reference to the proportionate impact and a consideration of whether ‘a substantially higher proportion of persons without the disability’ can or are able to comply.”
250 The reason why such a comparison is necessary is because proscriptions of indirect discrimination, as has been noted, are intended to deal with requirements or conditions which are not, in terms, discriminatory but which have a discriminatory impact when applied to those with disabilities.
251 Clarke was concerned with a profoundly deaf student whose complaint was that the school which he wished to enter at Year 7 level in 2000 was not prepared to assist him by providing an Auslan interpreter. The Court identified, at 122, the relevant requirement or condition as being that the student “participate in and receive classroom instruction without the assistance of an Auslan interpreter.” The trial judge determined that the comparator group, for the purposes of s 6(a), was either students admitted to Year 7 at the school in 2000 or, alternatively, all students enrolled at the school in that year. The Full Court found that the trial judge had not erred in identifying the base group: see at 145.
252 In Purvis at first instance Emmett J considered, without deciding, the possibility that a case of indirect discrimination could have been made out had it been argued (which it had not) that the school had imposed on the student a requirement that he comply with the generally applicable student discipline policy, which, by reason of his disability, he was unable to do. Section 6(a) would then have applied and the comparator base group would, for the purposes of s 6(b), have been the rest of the student body: see New South Wales (Department of Education) v Human Rights and Equal Opportunity Commission (2001) 186 ALR 69 at 77-8 [39]-[40], and 83 [65]-[66].
253 Neither party made any detailed submissions about the application of s 6(a) of the DDA in the present circumstances. Having regard to the authorities to which I have referred, I think that the appropriate base groups are either the students in the same class as Alex at relevant times or the student body as a whole at the particular school which he was attending.
254 The members of both of these groups were able to undertake their education as members of a class without the need for one-to-one assistance. The requirement that Alex receive his education at Branxholme without such assistance was, therefore, one with which a substantially higher proportion of his peers who were not similarly disabled were able to comply.
Unreasonableness
255 Any requirement or condition which is imposed by an educational authority will only be the cause of indirect discrimination if it “is not reasonable having regard to the circumstances of the case”: see s 6(b) of the DDA. In Clarke (at 145-6) Sackville and Stone JJ summarised the principles which had been developed in the application of s 6(b). They were:
“(i) The person aggrieved bears the onus of establishing that the condition or requirement was not reasonable in the circumstances: Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78, at 111, per Sackville J (with whom Davies and Beaumont JJ agreed), and the authorities cited there;
(ii) The test of reasonableness 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 condition or requirement, on the other: Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 at 263, per Bowen CJ and Gummow J; Waters v Public Transport Commission at 395-396, per Dawson and Toohey JJ; at 383, per Deane J. Since the test is objective, the subjective preferences of the aggrieved person are not determinative, but may be relevant in assessing whether the requirement or condition is unreasonable: Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74 at 82-83, per Lockhart J.
(iii) The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience: Styles at 263. It follows that the question is not whether the decision to impose the requirement or condition was correct, but whether it has been shown not to be objectively reasonable having regard to the circumstances of the case: Australian Medical Council v Wilson (1996) 68 FCR 46, at 61-62, per Heerey J; Commonwealth Bank v HREOC at 112-113, per Sackville J; and
(iv) The Court must weigh all relevant factors. While these may differ according to the circumstances of each case, they will usually include the reasons advanced in favour of the requirement or condition, the nature and effect of the requirement or condition, the financial burden on the alleged discriminator of accommodating the needs of the aggrieved person and the availability of alternative methods of achieving the alleged discriminator’s objectives without recourse to the requirement condition: Waters v Public Transport Corporation at 395, per Dawson and Toohey JJ (with whom Deane J agreed on this point, at 383-384). However, the fact that there is a reasonable alternative that might accommodate the interests of the aggrieved person does not of itself establish that a requirement or condition is unreasonable: Commonwealth Bank v HREOC at 88, per Beaumont J; Victoria v Schou (2004) 8 VR 120 71 at [26], per Phillips JA.”
256 In a passage which is of particular relevance to this proceeding their Honours continued (at 146):
“In addition to reminding himself of these principles, the primary judge acknowledged (at [53]), correctly, the need to act with “an appropriate degree of diffidence” in assessing the actions of an educational institution in respect of which there may be a division of opinion (citing Victoria v Schou (2001) 3 VR 655 at [30]-[31], per Harper J). Even so, his Honour considered that in the circumstances, the appellants’ insistence that Jacob participate in and receive classroom instruction without an interpreter (with a possibility of utilising Auslan only if a staff member with appropriate Auslan skills was available) was unreasonable.”
257 Where the respondent is the government of a State and the reasonableness of the provision or non provision of a particular form of assistance for a student is in issue, the following considerations have been held potentially to be relevant under equivalent State legislation:
“(a) The government is elected to make policy decisions, including policies on how to deal with various matters affecting the community and to establish priorities.
(b) Parliament controls the appropriation of public funds and makes laws which the government must comply with to the same extent as members of the community unless the relevant Act exempts the State either expressly or because some common law immunity or presumption applies in the absence of anything to the contrary in the Act.
(c) A government policy must operate within and is subject to the law, unless some special statutory exemption or common law rule applies. …
(d) … In the case of indirect discrimination, [the legislation] requires the complainant to prove that the relevant condition is not reasonable.
(e) Where the government has a policy or program to deal with the type of disadvantage alleged by the complainant, the existence of that policy or program is an important consideration on the “not reasonable” requirement in [the legislation]. This is particularly the case where the policy or program has been adopted by the government after undergoing a process of weighing up alternative options and priorities, receiving expert advice, engaging in consultation with relevant stakeholders and considering costs and budgetary considerations.
(f) However, as the [legislation] has conferred on the [Court] the task of determining whether a condition is “not reasonable”, a government policy or program does not go beyond being an important consideration to being determinative. Its existence does not relieve the [Court] of the responsibility to decide whether, on the basis of the policy or program and all other relevant considerations, the condition is not reasonable. If the [Court] were to conclude that the mere existence of a relevant government policy or program necessarily means the condition cannot be held to be not reasonable, it would fall into error.
(g) It is appropriate for the [Court] to consider the attributes of a government policy or program in determining whether, on the basis of the policy or program and the other relevant considerations, the condition is not reasonable. Beyond this, it is not the role of the [Court] to generally critique or pass judgment on the policy or program or advocate changes to it.
(h) Where the government has a program to deal with a particular disability and to provide funding and other assistance based on objective criteria, the fact that the complainant does not qualify for any funding or other assistance under the program, whilst relevant, does not necessarily mean that the condition that the State has imposed on the complainant cannot be found to be not reasonable.”
See State of Victoria v Turner [2009] VSC 66 at [101] (per Kyrou J).
258 Alex’s amended statement of claim and his contentions of fact and law do no more than assert, without particularisation, that any requirement or condition imposed upon him was not reasonable “having regard to the circumstances.” In his outline of submissions all that is said on the question of reasonableness is:
“The Respondent is the State of Victoria. It is responsible for the education of all Victorian children. The greater the concerns of the Respondent in relation to [Alex] regarding his behaviours, safety issues, and failure to academically progress adequately, the greater the responsibility the Respondent had to respond to and assist [Alex], using the significant professional resources available to it internally and externally.”
259 Oral submissions were hardly more detailed. There was reference to some undefined funding guidelines which were said to have been applied in Alex’s case and which provided inadequate funding to meet his needs. There was also reference to “the intent of the State of Victoria in providing universal free education during school hours.”
260 Under cover of a denial that such a requirement was imposed on Alex, the Department contended that any such imposition was reasonable in the circumstances. It pointed to the small class sizes at Branxholme which meant that Alex’s teachers, assisted in his later years by aides, were able to meet all of his educational needs without either the teacher or an aide giving Alex constant and undivided attention.
261 No evidence was called as to the cost of providing an aide to work exclusively with Alex throughout his primary education. Nor was there any detailed evidence about the criteria which were applied in determining the number of aides to be provided to a school or whether Branxholme received its full entitlements under the applicable criteria during Alex’s time at the school. My attention was not drawn to any request by Mr and Mrs Walker for exclusive individual assistance to be provided to Alex at all times when he was at Branxholme. Nor was my attention drawn to any recommendation by an educational psychologist or other professional that Alex required and should be provided with such assistance.
262 Alex did, in fact, receive a progressively higher level of one-to-one attention in the classroom as he progressed through the grades at Branxholme. He also had the benefit of small group teaching that took account of his personal needs.
263 To the extent that there was a relevant requirement or condition imposed on Alex, it was not that he should receive his education at Branxholme without any one-to-one assistance from a teacher or an aide. The complaint must be understood as one that he did not receive the exclusive attention of a teacher or an aide at all times when he was at the school. I am not satisfied, on the evidence, that in all of the circumstances, it was necessary that he receive such a level of assistance, much less that it was unreasonable not to provide it.
Ability to Comply
264 Section 6(c) of the DDA must also be satisfied before a case of indirect discrimination can be made out. The relevant requirement or condition must be one with which the aggrieved person does not or is unable to comply.
265 Alex’s amended statement of claim did not identify the requirement presently under consideration as a relevant requirement for the purposes of s 6 of the DDA. It was, however, relied on in his contentions of fact and law. Both the contentions and the outline of submissions contained a bare statement that Alex was unable to comply with the requirement that he receive his education without one-to-one assistance.
266 As already mentioned the Department denied that any such requirement or condition was imposed on Alex. It submitted that, if the contrary were found, it had not been established that Alex could not comply with such a requirement.
267 The fact is that Alex did pursue some of his education at Branxholme without the assistance of a dedicated teacher or aide. Despite this, his education progressed and it was the opinion of Messrs Castersen and Crossley and Ms Smith (which I accept) that the arrangements which were in place (which included the provision of periodic one-to-one assistance) were more than adequate to meet his educational needs.
268 I do not, therefore, accept that Alex was unable to and could not receive education at Branxholme without “one-to-one assistance in his academic subjects.”
Conclusion on indirect discrimination claim
269 Alex’s claim to have suffered indirect discrimination, contrary to s 22(a) and (c) of the DDA, has not been made out.
DISABILITY STANDARDS
270 Section 31 of the DDA empowers the Minister to formulate disability standards, inter alia, in relation to the education of persons with a disability. The Minister has formulated and published standards for education. He did so in 2005. They are entitled Disability Standards for Education 2005 (“the Disability Standards”). They came into force on 18 August 2005. By s 32 of the DDA it is unlawful for a person to contravene a disability standard.
271 In his amended statement of claim Alex alleges (in paragraph 21) that the Department’s conduct towards him constituted a breach of the Disability Standards. Particulars of the allegation were given as follows:
“(a) The Respondent has not made reasonable adjustments for the Applicant (s.3);
(b) The Respondent has not allowed the Applicant to participate in his education at the same level as his peers (s.5);
(c) The Respondent has not developed an accessible curriculum for the Applicant (s.6);
(d) The Respondent has not supported the student adequately (s.7).”
272 Somewhat confusingly paragraph 15C pleads:
“The conduct described in 15A (1) to (18) is discriminatory as it breaches the following sections of the Disability Standards for Education 2005
A) 3.4 In assessing whether a particular adjustment for a student is reasonable, regard should be had to all the relevant circumstances and interests, including the following:
(b) the views of the student or the student’s associate, given under section 3.5
B) 3.5 Before the education provider makes an adjustment for the student, the education provider must consult the student, or an associate of the student, about:
(1) Whether the adjustment is reasonable; and
(2) The extent to which the adjustment would achieve the aim mentioned in paragraph 4.2(3) (b), 5.2 (2) (b), 6.2 (2) (b), 7.2 (5) or 7.2 (6) (b) in relation to the student; and
(3) Whether there is any other reasonable adjustment that would be less disruptive and intrusive and no less beneficial for the student.
C) 4.2 Enrolment Standards
(3) The provider must
(a) consult the prospective student, or an associate of the prospective student, about whether the disability affects the prospective student’s ability to seek admission to, or apply for enrolment in, the institution; and
(b) in the light of the consultation, decide whether it is necessary to make an adjustment to ensure that the prospective student is able to seek admission to, or apply for enrolment in the institution, on the same basis as a prospective student without a disability; and
(c) if:
(i) an adjustment is necessary to achieve the aim mentioned in paragraph (b); and
(ii) a reasonable adjustment can be identified in relation to that aim; make a reasonable adjustment for the student in accordance with Part 3. (sic)
D) 5.2 Participation Standards
(2) The provider must:
(ii) Consult the student, or an associate of the student, about whether the disability affects the student’s ability to participate in the courses or programs for which the student is enrolled and use the facilities of services provided by the provider; and
(iii) In the light of the consultation, decide whether an adjustment is necessary to ensure that the student is able to participate in the courses or programs provided by the educational institution, and use the facilities and services provided by it, on the same basis as a student without a disability; and
(iv) If (sic):
(i) An adjustment is necessary to achieve the aim mentioned in paragraph (b); and
(ii) A reasonable adjustment can be identified in relation to that aim; make a reasonable adjustment for the student in accordance with Part 3. (sic)
(3) The provider must repeat the process set out in subsection (2) as necessary to allow for the changing needs of the student over time.
E) 6.2 Standards for Curriculum Development and Accreditation and Delivery
(2) If a student is enrolled in the course or program, the provider must:
(a) consult the student, or an associate of the student, about whether the disability affects the student’s ability to participate in learning experiences of the course or program, or any relevant supplementary course or program; and
(b) in the light of that consultation, decide whether an adjustment is necessary to ensure that the student is able to participate in those learning experiences on the same basis as a student without a disability who is enrolled in the course or program; and
(c) if:
(i) an adjustment is necessary to achieve the aim mentioned in paragraph (b); and
(ii) a reasonable adjustment can be identified in relation to that aim; … … … …. Make a reasonable adjustment for the student in accordance with Part 3. (sic)
(3) The provider must repeat the process set out in subsection (2) as necessary to allow for the changing needs of the student over time.
F) 7.(sic) Standards for support services
(6) The provider must:
(a) consult the student, or an associate of the student, about the need for the student to have access to specialised support services that are provided by the provider or by the other persons or agencies; and
(b) in the light of that consultation, decide whether an adjustment of the kind mentioned in subsection (4) is necessary for the student to be able to participate in the activities for which he or she is enrolled; and
(c) if:
(i) an adjustment is necessary to achieve the aim mentioned in paragraph (b); and
(ii) a reasonable adjustment can be identified in relation to that aim;
make a reasonable adjustment for the student in accordance with Part 3.
(7) The provider must repeat the processes set out in subsection (5) and (6) as necessary to allow for the changing needs of the student over time.”
273 Paragraph 15C is confusing for a number of reasons. First it alleges a breach of s 4.2 of the Disability Standards when no mention is made of this section in paragraph 21. Secondly, paragraph 15C alleges that conduct or inaction, earlier described in paragraph 15A, is discriminatory “as it breaches” the Disability Standards. As is evident from a reading of the extracts from the standards which are set out in paragraph 15C, the purpose of the standards is to prescribe processes, such as consultation, which must be observed when determining how best to assist a disabled student. A failure to comply with one of the requirements does not give rise to discrimination within the meaning of the DDA. It gives rise to a contravention of s 32.
274 More significantly, however, is the fact that paragraph 15A, which covers some 29 pages of the amended statement of claim, refers to a wide range of events, which occurred over an eight year period, most of which could not possibly constitute a breach of the Disability Standards. None of the events which occurred prior to 2005 could have done so. Paragraph 15A describes a series of reports, prepared by psychologists and others, about Alex. Recommendations from those reports are extracted and it is then alleged (largely contrary to the fact) that these recommendations were not complied with by the Department. In addition complaint is made about alleged failures (again, largely contrary to the fact) to consult Alex’s parents before implementing various strategies which were designed to assist Alex’s educational and social development. The Disability Standards require no more of a government agency such as the Department than that, where necessary, it be alert to the need to adjust its normal practices when dealing with a disabled student; to consider, in consultation with the student or his or her parents, what reasonable adjustments to normal practices should be made to assist the student, and then to decide whether a particular adjustment is necessary and, if so, to implement it.
275 Notwithstanding the confusion which attends the pleading of this aspect of Alex’s case, I must do my best to deal with what I understand to be an allegation that the Department has contravened s 32 of the DDA by breaching the particular Disability Standards which are mentioned in paragraph 15C of the amended statement of claim.
276 The first two sections of the Disability Standards which are identified are 3.4 and 3.5. These provisions appear in Part 3. As s 3.1 makes clear nothing in that Part (including ss 3.4 and 3.5) constitute disability standards for the purposes of ss 31 and 32 of the DDA. What these provisions do is to set out “how a reasonable adjustment is to be identified for the purposes of paragraphs 4.2(3)(c), 5.2(2)(c), 6.2(2)(c), 7.2(5)(c) or 7.2(6)(c)” of the Disability Standards.
277 No contraventions of ss 3.4 and 3.5 have been made out.
278 Part 4 of the Disability Standards prescribes standards for enrolment. It applies to prospective students who wish to enrol in educational institutions: see s 4.1. As Alex commenced school at Branxholme in 2001, he was not a prospective student of that school during the currency of the Disability Standards. I, therefore, take the allegation of a contravention of s 4.2(3) to refer to the period whilst Alex was a prospective student for Baimbridge.
279 The process whereby Alex came to be enrolled at Baimbridge has been outlined above at [142]-[151]. From the time at which Mrs Walker approached Baimbridge with a view to enrolling Alex until his commencement at the school in 2007 careful consideration was given to Alex’s needs and the question of how best Baimbridge might meet those needs. Careful consideration was also given to his disabilities, his experiences at other schools and professional advice about how he could best be assisted. This led to a transition plan being developed. Mrs Walker was consulted about the elements of this plan and approved of it. The plan made provision for Alex to be accompanied by a dedicated aide and for him to be introduced progressively to the educational programmes offered by Baimbridge.
280 In these ways the requirements of s 4.2(3) were met: see s 4.2(4).
281 It will be convenient to deal with the allegations of contraventions of ss 5.2 and 6.2 of the Disability Standards together. Their drafting follows a similar pattern.
282 Sections 5.2(1) and 6.2(1) respectively require that schools must take reasonable steps to ensure that a student with a disability is able to participate in the courses offered by the school and that those courses are designed in such a way that the disabled student is able to participate in the learning experience provided by the courses.
283 Sections 5.2(2) and 6.2(2), which Alex alleges were contravened by the Department, provide for a process of consultation, consideration and adjustment in order that the requirements of ss 5.2(1) and 6.2(1) are met. These processes must be repeated as necessary as a student’s needs change: see ss 5.2(3) and 6.2(3).
284 Some features, which are common to both ss 5.2(2) and 6.2(2) should be noted. The first is that both provisions require a school to consult a student or his or her parents about prescribed matters. They do not, however, require that such consultation take any particular form or occur at any particular time. Those involved may meet formally or informally. Discussions can be instigated by either the school or the parents. Consultation may occur in face-to-face meetings, in the course of telephone conversations or in exchanges of correspondence. Once consultation has occurred it is for the school to determine whether any adjustment is necessary in order to ensure that the student is able, in a meaningful way, to participate in the programmes offered by the school. The school is not bound, in making these decisions, by the opinions or wishes of professional advisers or parents. The school is also required to determine whether any reasonable adjustment is possible in order to further the prescribed aims. There may, therefore, be cases in which an adjustment is necessary but no reasonable adjustment is able to be identified which will ensure that the objectives contained in the relevant Disability Standards are achieved.
285 An extensive account of the consultation and adjustment processes which were adopted at Branxholme and Baimbridge after August 2005 has already been provided: see above at [98]-[116], [153]-[169]. This evidence establishes that both schools engaged in extensive consultations with Mr and Mrs Walker about Alex’s participation in the educational and other programmes offered by them. This consultation was both formal and informal. Recommendations contained in reports prepared by Ms Bounds and others were considered and acted on. Many adjustments were made in order to assist Alex. Some were suggested by the principals and teachers involved; some were suggested by Ms Bounds and specialists employed by the Department; and some flowed from requests and suggestions made by Mr and Mrs Walker. Some were agreed; some were not.
286 In my view these processes ensured that the requirements of the relevant parts of ss 5 and 6 of the Disability Standards were met.
287 Alex further alleged that Part 7 of the Disability Standards was breached because the Department did not support him adequately. Part 7 does not impose such a requirement. As s 7.2(1) makes clear the obligation of the school is to “take reasonable steps to ensure that the student is able to use support services used by the students of the institution in general on the same basis as a student without a disability …”
288 The parts of s7.2 which are relied on in paragraph 15C of the amended statement of claim, namely subsections (6) and (7), are those which correspond with ss 5.2(2) and (3) and 6.2(2) and (3). They impose the obligation of consultation and periodic decision-making in order to ensure, so far as is possible, that a student has access to specialist support services provided by the educational institution.
289 It was common ground that the Department provided a range of support services to assist students who, like Alex, suffered from disabilities. Alex had access to some of these services either directly or through his parents. He has not identified any specialised support service which was available and relevant to his needs which he was not able to use.
290 No contravention of s 7.2(6) or (7) has been made out.
CONCLUSION ON DISCRIMINATION CLAIMS
291 For the reasons which I have given I do not consider that Alex has established that the Department contravened the provisions of s 22(2)(a) or (c) of the DDA or that it contravened any relevant Disability Standard.
292 It is not, therefore, necessary for me to give further attention to the general defences relied on by the Department.
VICTIMISATION
293 In his amended statement of claim (at paragraph 24) Alex alleges that the Department breached s 42 of the DDA. The allegation was particularised as follows:
“On 20 May 2008, the Principal of Branxholme, Mr Steve Crossley, refused to allow [Alex] to be on the school grounds due to the lodging of the complaint of discrimination with the Australian Human Rights Commission.”
I understand this to be an allegation that the State of Victoria, acting through Mr Crossley, committed an act of victimisation, namely refusing the allow Alex to be on the school grounds at Branxholme, because of the fact that he (or his parents) had made a complaint under the DDA or the Human Rights and Equal Opportunity Commission Act 1986 (Cth).
294 I pass over, for the moment, the questions of whether the State of Victoria can be liable for an offence under s 42 (as to which see s 14(2) of the DDA), whether the State could be vicariously liable for the actions of Mr Crossley and whether, in any event, a criminal charge could effectively be laid in a statement of claim. There may also be a further issue about whether the act of victimisation must be directed against the same person who made the complaint. These issues were not the subject of submissions.
295 The relevant complaint was made to the Commission on 25 January 2008.
296 The event which led to this allegation of victimisation occurred some four months later. Many of the facts surrounding this incident were not in dispute.
297 On some afternoons, after school hours, an Auskick clinic was held on the school grounds at Branxholme. The activity was organised and conducted by the Auskick organisation, not by the school. The co-ordinator of the clinics was Mr Storer. Mr Storer was the parent of students at the school and, at the time, was Vice President of the School Council. The clinic was attended by primary school aged children who were introduced to the skills needed to play Australian Rules Football.
298 On the afternoon in question Alex’s two younger brothers were attending the clinic. At about 3.30 pm, before activities commenced, Alex was on the football oval playing with younger children. By this time he was attending Baimbridge. Mr and Mrs Walker were present. So too was Mr Crossley.
299 Mr Crossley spoke to Mr and Mrs Walker. What passed between them was a matter of contention.
300 There was a significant controversy about the reasons which Mr Crossley gave for asking that Alex be directed to leave and as to the true reason or reasons for him doing so.
301 In her first witness statement Mrs Walker said that Mr Crossley had approached her and Mr Walker and said that it was not appropriate that Alex was on the school grounds because the Walker family were suing the Department. Mrs Walker responded by saying that Alex was doing nothing wrong and that she felt that Mr Crossley was victimising him. Mr Crossley insisted that he did not want Alex on the school grounds and stood by his request that Alex leave. Mr and Mrs Walker were extremely distressed. Mrs Walker took Alex home. Mrs Walker contacted her advocate, Ms Julie Phillips, that afternoon and told her what had occurred. Ms Phillips immediately wrote a letter to the Regional Director of the Department in Geelong. In that letter she recounted what she had been told by Mrs Walker.
302 In a second witness statement, which was prepared after Mrs Walker had read Mr Crossley’s account of events, she branded his account as “completely false”. She asserted that Mr Crossley had “ordered Alex off the grounds due our discrimination complaint (sic) – he plainly said it.” This had been done in the presence of Mr Walker who responded by saying “this is bullshit” and walking away. She said that the issue of the supervision of Alex had not been discussed. She said that she had not called Mr Crossley a bully although she found his demeanour to be bullying and she did not say that Mr Crossley was picking on Alex and his family. She did say that Alex was doing nothing wrong and that Mr Crossley’s actions were discriminatory.
303 Under cross-examination Mrs Walker agreed that, when Mr Crossley spoke to her and her husband, they were sitting in the family car in the car park near the entrance to the school grounds. Alex had left the car and was on one of the ovals. Mr Walker then got out of the car and walked towards where Alex was. After he had left, Mrs Walker and Mr Crossley had a conversation in which she had said to him that “Alex is doing nothing wrong.” She denied accusing Mr Crossley of being a bully or telling him that he was picking on Alex or his family. She denied that Mr Crossley had said: “If Alex is going to be on the school grounds when Auskick is on, he should be supervised properly” but she accepted that such supervision could not properly be provided whilst she and her husband remained in the car. Although she thought that Mr Crossley was discriminating against Alex at the time, she did not say so to him, at least in those words. She agreed that she might have mentioned the issue of discrimination. She denied that Mr Crossley said to her: “Come on, Paige, you are already suing the school.”
304 In his witness statement Mr Walker said that, on 20 May 2008, he and Mrs Walker were present at the Branxholme football oval. As the Auskick staff were setting up, some younger children were kicking footballs towards the goals and Alex was standing at the goal posts and giving the footballs to them. Mr and Mrs Walker were about 150 yards away from Alex. Mr Crossley approached and said that it was not appropriate for Alex to be there “considering the action we were taking against the school.” Mr Crossley said that he would prefer it if Mr and Mrs Walker removed Alex. Mr Walker was furious and got out of the car and started to walk towards Alex. Mr Walker called Alex over to him and took him back to the car park. Alex was protesting that he had done nothing wrong. Mrs Walker then took Alex home. Mr Walker remained until his two younger children had finished at the clinic. No member of the Auskick staff said anything to him.
305 Under cross-examination Mr Walker agreed that, when Mr Crossley spoke to them on the afternoon of 20 May 2008, he and Mrs Walker were sitting in their car which was about 150 metres away from where Alex was playing with younger children. They were playing with footballs. Mr Walker denied that Mr Crossley had said to him and Mrs Walker that “Alex should not be on the school grounds whilst unsupervised” and that “Alex is playing rough with young kids.”. He agreed that, when Mr Crossley approached, he got out of the car and said words along the lines of “this is bloody stupid” and then walked off towards where Alex was playing. He did not hear any exchanges between his wife and Mr Crossley after he left.
306 In his witness statement Mr Crossley gave a more detailed account of what he said had transpired on the afternoon of 20 May 2008.
307 He commenced by acknowledging that he had become aware in February 2008 that Mr and Mrs Walker had lodged a discrimination complaint with the Human Rights and Equal Opportunity Commission. His witness statement continued:
“228. On 20 May 2008, there was an Auskick program conducted at Branxholme. …
229. The Auskick program was conducted on one of the Branxholme ovals. School finishes at 3.15pm and the Auskick program will commence at 3.30pm. Although it is not a requirement, all the participants in this program are students from Branxholme. The children are all of primary school age. This program requires the participants to be between the ages of 5 and 12 and to have formally registered to participate in this program. Between 3.15pm and the commencement of Auskick at 3.30pm, many of the children have a snack before the program starts.
230. At some time between 3.15pm and 3.30pm I was under the verandah outside the multi-purpose room. … From this position, I do not have a clear view of the main oval where the Auskick was to take place.
231. During this period between 3.15pm and 3.30pm, I was advised by Margaret Cameron that Alex Walker was on the school grounds and was playing rough with ‘the little kids’ (which I took to be a reference to some of the young primary school students that would be involved in the Auskick program when it started at 3.30pm). I was also told that Alex’s parents were not supervising Alex but were in fact in their car parked out at the front of the school.
232. I believe within a couple of weeks of 20 May 2008, I was told at least a couple of times by Mr Greg Storer (one of the co-ordinators of Auskick and at the time also a school council member (now Vice-President)) that he was unhappy with Alex being in attendance during a previous Auskick program (not as a participant) because he had been seen playing rough with some young kids. I was concerned about this and felt that if Alex was to be on the school grounds during Auskick he needed to be properly supervised.
233. On 20 May 2008, I was very concerned about being told that Alex was playing rough with some young students at Branxholme and immediately walked towards the main oval to see for myself what was going on. Perpendicular to the main oval is another green patch of grass that I call the back oval. I thus walked past the old art room, past the shelter shed until I had a relatively clear view of part of the main oval and back oval. I could see from some 30 metres from the oval that Alex was near the goalposts at one end of the back oval and appeared to be playing with about eight prep/grade 1/grade 2 children a form of ‘no rules rugby’ or ‘keepings off’.
234. I could see that although Alex was not intending to be deliberately rough, it was a rough game and I saw the young children trying to wrestle Alex and get the ball off him and being knocked over. I was concerned that Alex was involved in such a rough, physical game with children that were a lot younger than him and there was no supervision of this activity. I did not consider it appropriate for Alex to be involved in this activity given his size in relation to the other children and the risk, especially in the absence of supervision, of a small child being injured. In forming this view, I could not also ignore the experiences Branxholme had had with Alex, including difficulties we had sometimes had with Alex in his dealings with young children. I knew Alex was not in attendance to participate in Auskick as he was too old. I knew that Alex would be there because his younger brothers were participating in Auskick.
235. After seeing Alex involved in this activity on the main oval, I started walking immediately up to the carpark area, where I had been told Mr and Ms Walker were located. This is an area on the street out the front of the school.
236. When I got to the area outside the school where cars are parked, I saw Mr and Ms Walker’s car with both Mr and Ms Walker in the front seat of the car and Ms Walker in the driver’s side seat. … I would estimate that it is approximately 130 metres from this location to the back oval. From this position, Mr and Ms Walker would have had an extremely limited view of Alex on the back oval near the furthest set of goalposts from where they were parked.
237. I approached Mr Walker on the front passenger side of the vehicle. Mr Walker opened the passenger side door so that I could speak to him. I said hello to Mr and Ms Walker. I don’t recall any response. I then said Alex should not be on the school grounds whilst unsupervised and he’s been playing rough with young kids.
238. Mr Walker got out of his car and said, under his breath, but I could hear it but he was not looking at me when he said it, ‘this is bloody stupid’. He then walked past me towards where Alex was located.
239. Ms Walker then began to speak to me. I remember slightly crouching to see her face. She said to me: ‘Alex is doing nothing wrong, you’re picking on Alex. You’re discriminating against Alex. You’ve always picked on Alex and the family. You are a bully’. Ms Walker had a raised voice and was clearly emotional and angry.
240. I said: ‘if Alex is going to be on school grounds when Auskick is on, he should be supervised properly and that means that you or your husband should be next to Alex.’ I made the comment that being as far away as they were in the carpark while Alex was playing with little kids, it was not a good enough level of supervision.
241. Ms Walker responded by saying again: ‘Alex is doing nothing wrong, you’re just picking on Alex. You’re discriminating against Alex. You’ve always picked on Alex and the family. You are a bully.’
242. I said: ‘Paige, all I’m asking is that you properly supervise Alex on the school grounds while Auskick is on’.
243. Mrs Walker again said to me: ‘You’re picking on Alex. You’re discriminating against Alex. You’re being unfair. You’re a bully.’
244. I wanted to explain to Ms Walker that we already had one case involving Alex with the school being sued and I didn’t need for Alex to be involved in any other incident, if, for example, a young child was injured. I began saying to Ms Walker: ‘c’mon Paige, you’re already suing the school’ but I did not get to complete my statement that we both didn’t need another potential incident if someone was hurt because Alex was not being properly supervised. Ms Walker, however, prior to me finishing what I wanted to say, said in a very angry manner: ‘you’re just a bully. You’ve always been a bully and you’re just picking on Alex.’
245. I said: ‘you’ve got to supervise Alex properly when he is at the school’. I then left.
246. During my exchange with Ms Walker, Ms Walker was highly emotional and angry. My demeanour was calm and professional when I spoke to her. I do not believe that Mr Walker was present. He may have heard the beginning of my conversation with Ms Walker, but I doubt this as he was walking away from me and towards Alex. I later saw Mr Walker approaching the car with Alex as I was leaving from speaking to Ms Walker.
247. My decision to request Mr and Ms Walker to adequately supervise Alex was entirely because I considered it appropriate that Alex be adequately supervised by his parents whilst around young children especially if he was going to engage with rough play with young kids on the school grounds. Further, I also had in mind my own previous experiences with Alex at Branxholme which heightened my concern about Alex being unsupervised on school grounds. Alex’s behaviour is unpredictable, and so I also wanted to ensure that Alex was adequately supervised so that any young children were adequately safeguarded in the event that Alex engaged in any inappropriate behaviour towards them. Issues between Alex and younger students had been a feature of Alex’s inappropriate behaviours in the past. This request had nothing to do with the fact that Ms Walker was suing the school for discrimination.
248. I did not require Alex to leave the school grounds. My only requirement was that Mr and Ms Walker adequately supervise him whilst on the school grounds. I did not suggest that Alex could not do Auskick. I never thought that Alex was going to be a participant in Auskick. My concern was that because of the Auskick program, there were many younger children in attendance, some being of a very young age.
249. In response to paragraph 209 of Ms Walker’s statement, it is correct that Alex, prior to me speaking to Mr and Ms Walker, was playing with other children near the goal posts. It was not correct that he was helping out with Auskick. Auskick had not yet started.
250. In response to paragraph 210 of Ms Walker’s statement, the conversation is not as recounted by Ms Walker but as I have stated above. It is incorrect that I asked Alex to leave. As stated above, what I asked for was for Mr and Ms Walker to supervise Alex in an adequate manner. It is not correct that Ms Walker had no choice but to take Alex home. Mr and Ms Walker could have remained with Alex provided they complied with my request to adequately supervise Alex.
251. In response to paragraph 39 of Mr Walker’s witness statement, it is correct that the Auskick program had not commenced and people may have been setting up for the program to commence. I agree that Alex was in the vicinity of the goalposts but he was not returning footballs. Alex was involved in what appeared to me to be a ‘no rules rugby’ or ‘keepings off’ game.
252. I dispute that I said anything to Mr Walker about the court case. That remark was made to Ms Walker after Mr Walker had left the car and walked towards Alex. I doubt whether Mr Walker was near enough to Ms Walker and me to hear me mention the court case, but he may have been.”
308 Very early in his cross-examination Mr Crossley was asked about his association with Mr Storer both through the school and within the wider local community at Branxholme. He was asked about when he became aware that the Walkers had made a complaint to the Human Rights and Equal Opportunity Commission and confirmed that, in May of 2008, he was well aware that the complaint had been made. Some questions were asked about the conduct of Auskick at the school grounds. Mr Crossley was then asked about the first occasion on which he had spoken to Mr Storer about Alex. When he said that this had happened in 2006 the cross-examination turned to a lengthy examination of an incident which had occurred, towards the middle of 2006, in which Alex had wrestled with one of Mr Storer’s children in the school yard and caused the child a good deal of distress. Much of this questioning was directed to the fine detail of the interaction between Mr Crossley and Mr and Mrs Storer in the wake of the incident. Mr Crossley was asked, for example, about whether he had reported the incident to Mrs Storer or Mr Storer first, if and when he had attended the Storer home to discuss the issue, what refreshments were offered when he did attend and how long he stayed. Counsel sought to suggest that Mr Crossley had not dealt with the incident appropriately. Once all this information was elicited, counsel for Alex moved on to a different topic, never to return to the events of 20 May 2008. Mr Crossley’s account of events on that afternoon was left unchallenged.
309 In his witness statement Mr Storer said that he had, prior to 20 May 2008, observed Alex engaging in rough play with smaller children during Auskick clinics and that he had spoken to Mr Crossley about it.
310 When cross-examined Mr Storer said that he had become aware of the Walkers ‘complaint to the Human Rights Commission in his capacity as a member of the school council. He was asked about his association with Mr Crossley at and outside the school. He was asked what experience he had that made him an appropriate person to run the Auskick program. He was asked whether Mr Crossley had ever told him that he (Mr Crossley) had played football for Frankston and whether Mr Crossley had any particular expertise on football or the rules of football. He said that he had observed Alex over a period of 15 to 20 minutes playing with younger children on the oval. Alex had become progressively rougher in his interactions with the children. He was not, however, sufficiently concerned, to intervene. He confirmed that, after an earlier Auskick clinic, he had expressed his concern to Mr Crossley about Alex engaging in rough play. It was not put to Mr Storer that he had not advised Mr Crossley about his concerns about Alex playing roughly with younger children. Rather the questioning seemed designed to suggest that he was a friend of Mr Storer’s who might be expected to support him and that, as Vice President of the School Council he was inclined to throw his lot in with the Department once the Walkers had made their complaint. He was asked a considerable number of questions about the incident involving his own son two years earlier and his subsequent dealings with Mr Crossley about that incident.
311 Both counsel submitted that I should accept the account given by their witnesses as to what had occurred on the afternoon of 20 May 2008. They relied on the credibility of their witnesses and factors which were said to undermine the reliability of witnesses who had given conflicting accounts.
312 Counsel for Alex contended that Mr Crossley’s version of the incident was “implausible and unreliable”. This submission was based entirely on what was said to be inconsistencies between the evidence of Mr Crossley and Mr Storer about the incident in 2006 involving Mr Storer’s son and the aftermath of that incident. Counsel also relied on the fact that Messrs Storer and Crossley were friends and a suggestion that Mr Storer had a conflict of interest as Vice President of the School Council who “therefore had an interest in protecting the school.” He also referred to the fact that there was no suggestion that Alex had caused any harm to children attending the Auskick clinic before he was allegedly asked to leave.
313 Counsel for the Department submitted that the evidence given by Mr and Mrs Walker was unreliable because they both had “a deep animosity and hostility” towards Mr Crossley and were angry and emotional during their exchanges with Mr Crossley. They had each seen the other’s witness statements before they were filed and were thereby able to present a common version of what had transpired. It was further submitted that Mr Crossley’s denials must be accepted given that they were wholly unchallenged when he gave evidence.
314 The offence created by s 42 of the DDA attracts a maximum penalty of imprisonment for six months. A charge that a person has committed an act of victimisation is, therefore, a grave allegation. The onus was on Alex to establish the charge beyond reasonable doubt.
315 The failure of counsel for Alex to challenge Mr Crossley’s evidence relating to the events on the afternoon of 20 May 2008 did not constitute a contravention of the rule in Browne v Dunn (1893) 6 R 67 because Mr Crossley was on notice, having had access to Mr and Mrs Walkers’ witness statements, that his account was to be contested: see Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 at 16 (per Hunt J). Because such notice had been given, he was able (as he did) to deny the allegation and provide a detailed account of what he said had occurred. The failure by counsel for Alex to challenge any aspect of that evidence or to put to Mr Crossley the material parts of Mr and Mrs Walkers’ conflicting account does not, therefore, lead to the conclusion that Mr Crossley’s evidence must be accepted and Mr and Mrs Walker’s evidence, to the extent that it differs from that of Mr Crossley, must be rejected. The failure does, however, make my task in assessing Mr Crossley’s credibility on this matter more difficult than it otherwise might have been had I been able to observe him being questioned about these matters and hear his responses.
316 As I indicated at the start of these reasons I formed a generally favourable impression of Mr and Mrs Walker and Messrs Crossley and Storer. I think that they did their best to give truthful evidence. The fact that their recollections of what must have been a tense exchange which occurred over a year earlier and of which there is no contemporaneous record and assumptions based on their long running acrimonious association provide at least a partial explanation for their differing recollections.
317 When all of the evidence is considered some significant facts were not contested. Mr Storer had, on at least one occasion, prior to 20 May 2008, observed Alex playing roughly with younger children who were attending the Auskick clinic. He had reported these observations to Mr Crossley. On the afternoon of 20 May 2008 both Mr Crossley and Mr Storer had observed Alex engaging in some rough play with younger students near some goalposts while preparations were being made to commence the clinic. Nothing Alex did, however, led either of them to intervene. Mr Crossley was, nonetheless, concerned that Alex might become more vigorous and unintentionally harm a younger student. Shortly after making the observations he went and spoke to Mr and Mrs Walker who were sitting in a car about 150 metres away from where Alex was playing.
318 In the circumstances, it would have been understandable had Mr Crossley told the Walkers that he thought that Alex needed to be supervised more closely. An alternative course would have been for Mr Crossley to ask for Alex to be removed. This is what the Walkers say they were asked to do. Mr Walker appears to have understood that such a request had been made. He not only moved closer to where Alex was playing but he also called Alex over, walked with him to the car and Mrs Walker took him home. The removal of Alex could also be explained by anger on the part of the Walkers that a request had been made that he should be better supervised. In this context it is to be recalled that Alex had, to Mr Crossley’s knowledge, been present on the school grounds at Auskick clinics earlier in the year after the discrimination complaint had, to Mr Crossley’s knowledge, been made, and Mr Crossley had not taken any steps to ban his further attendance.
319 Had Mr Crossley done no more than request that Mr or Mrs Walker closely supervise Alex while he was on the school property, an extremely broad construction of the phrase “subjects … to any detriment” would have been required to establish that such a request constituted victimisation. A direction that Alex not be allowed to remain on the school grounds would, on the other hand, more readily have been found to constitute an act of victimisation.
320 The unsatisfactory state of the evidence does not allow me confidently to determine whether Mr Crossley merely requested that the Walkers closely supervise Alex or whether he directed that Alex be removed from the school grounds.
321 Whatever request or direction was given by Mr Crossley the central question is whether it was made or given on the ground that the Walkers had made a complaint to the Human Rights and Equal Opportunity Commission.
322 Mr Crossley acknowledges having said to Mrs Walker, towards the end of their exchange, that she was already “suing the school”. He said that he made this remark to emphasise his concern about Alex’s behaviour because the school was being sued as a result of another incident in which Alex had been involved. Mr Crossley was not asked to identify the nature of the incident or to provide details of the litigation to which he referred. If Alex, acting through Mrs Walker, was the plaintiff in such litigation, Mr Crossley’s remark that she was “already suing the school” could be understood as a reference to that litigation. If, on the other hand, the litigation involved the school being sued by somebody else by reason of something Alex had done, then the remark is less comprehensible. The position is left uncertain because Mr Crossley was not called on to clarify his evidence in this regard.
323 In her first statement Mrs Walker said that Mr Crossley had told her that it was not appropriate that Alex be on the school grounds because the Walker “family were suing the [Department]”. It is also notable that the letter written by Ms Phillips to the Department’s Regional Office later that day on instructions from Mrs Walker alleged that Mr Crossley had said that it was not appropriate that Alex be on the school grounds “because the family were suing the [Department].” Having read Mr Crossley’s account, Mrs Walker rephrased her evidence in her second statement. She said that Mr Crossley had “ordered Alex off the grounds due to our discrimination complaint – he plainly said it.” In neither statement did she attribute particular words to Mr Crossley.
324 In his witness statement Mr Walker said that Mr Crossley had said that it was not appropriate for Alex to be at the school “considering the action we were taking against the school.” If there was, indeed, other action being taken by the Walkers against the school this evidence would be consistent with that of Mr Crossley, assuming, of course, that contrary to Mr Crossley’s version, Mr Walker had heard the remark.
325 One may readily appreciate that non-lawyers might, loosely, describe the making of a complaint to the Commission as “suing” the Department. The witness statements were, however, drawn up with the assistance of lawyers. In their first statements both Mr and Mrs Walker attributed to Mr Crossley the phrase “suing the Department”. So did Ms Phillips, on Mrs Walker’s instructions given immediately after the conversation. It was only after Mr Crossley had said that the litigation to which he was referring when he used the word “suing” was an unrelated piece of litigation that Mrs Walker offered a paraphrased version of Mr Crossley’s statement which specifically mentioned the “discrimination complaint”.
326 In these circumstances I consider that it is more likely than not that Mr Crossley did refer to the Walkers “suing the Department” and that this was taken by them, mistakenly, to be an allusion to the making of their complaint. I also accept that it is more likely than not that Mr Crossley, in making the remark, was referring to a separate legal proceeding and not to the lodging of the disability discrimination complaint.
327 No other proscribed reason was relied on by Alex.
328 In order for a charge to be made out under s 42 it must be established that the impugned act has been performed “on the ground that” the victim has done one of the things identified in s 42(2) of the DDA. The required causal connection between the complainant’s act and the defendant’s response has been considered in a number of cases. They were reviewed by Buchanan J in Penhall-Jones v New South Wales [2007] FCA 925 at [85]. His Honour concluded that:
“Accordingly the authorities are unified in their approach that the ground or reason relied upon to establish breach of the relevant legal obligation need not be the sole factor but it must be a substantial and operative factor. At least one circumstance from the list in s 42(2) of the Act must be a reason for the alleged detriment or threatened detriment. It must afford a rational explanation, at least in part, ‘why’ an action was taken. The connection cannot be made by a mere temporal conjunction of events, by an incidental but non-causal relationship or by speculation. The establishment of the suggested ground is as much a matter for proper proof as any other factual circumstance.” (Emphasis added).
329 For the reasons which I have given I am not satisfied beyond reasonable doubt that the making of a complaint to the Commission in January 2008 was a substantial and operative reason for any request by Mr Crossley that Mr and Mrs Walker supervise Alex or any direction given by him that Alex should be removed from the school property.
330 It follows that, even if Alex had been able to surmount the multiple hurdles which he faced in pursing the prosecution of the State of Victoria for an offence under s 42 of the DDA, the charge could not have been made out. It should be dismissed.
DISPOSITION
331 The application and the charge must both be dismissed. I will hear the parties as to any further orders which may be required.
I certify that the preceding three hundred and thirty-one (331) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. |
Associate:
