FEDERAL COURT OF AUSTRALIA
Abela v State of Victoria [2013] FCA 832
IN THE FEDERAL COURT OF AUSTRALIA |
|
BEAU ABELA (BY HIS NEXT FRIEND LITIGATION GUARDIAN, PETER ABELA) 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 with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
IN THE FEDERAL COURT OF AUSTRALIA |
|
VICTORIA DISTRICT REGISTRY |
|
GENERAL DIVISION |
VID 1102 of 2011 |
BETWEEN: |
BEAU ABELA (BY HIS NEXT FRIEND LITIGATION GUARDIAN, PETER ABELA) Applicant |
AND: |
STATE OF VICTORIA (DEPARTMENT OF EDUCATION AND EARLY CHILDHOOD DEVELOPMENT) Respondent |
JUDGE: |
TRACEY J |
DATE OF ORDER: |
16august 2013 |
WHERE MADE: |
MELBOURNE |
THE COURT ORDERS THAT:
1. The application be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
VICTORIA DISTRICT REGISTRY |
|
GENERAL DIVISION |
VID 405 of 2011 VID 1102 of 2011 |
BETWEEN: |
BEAU ABELA (BY HIS NEXT FRIEND LITIGATION GUARDIAN, PETER ABELA) Applicant
|
AND: |
STATE OF VICTORIA (DEPARTMENT OF EDUCATION AND EARLY CHILDHOOD DEVELOPMENT) Respondent
|
JUDGE: |
TRACEY J |
DATE: |
16 august 2013 |
PLACE: |
MELBOURNE |
REASONS FOR JUDGMENT
1 Between 1999 and 2010 Mr Beau Abela attended several schools which were 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 litigation guardian and father Mr Peter Abela) as “Beau” to distinguish him from his father to whom I will refer as “Mr Abela”. Beau alleged that the Department, during the relevant period, committed various acts and omissions constituting indirect and direct discrimination under the Disability Discrimination Act 1992 (Cth) (“the DDA”). He also complained that the Department had contravened the DDA by failing to comply with Disability Standards for Education prescribed under that Act. He seeks a number of remedies.
BACKGROUND
2 Beau was born on 28 September 1993. He claimed that he suffered from a number of disabilities including:
• mild intellectual disability / borderline IQ / low average IQ;
• impaired short term auditory memory;
• significant motor difficulties; and
• language impairment, diagnosed as “mild”; severe pervasive reception, expressive and pragmatic language impairment.
3 This assessment of Beau’s disabilities was disputed in part by the Department. The Department alleged that the evidence established that Beau had:
• an intellectual disability, indicated by his IQ of 62 which was diagnosed in May 2006;
• short term auditory processing difficulties in respect of some more complex verbal information (known from 2007); and
• attention deficit hyperactive disorder (from at least 2001) (“ADHD”).
4 It was not in dispute that each of the conditions attributed to Beau, as part of his own case or by the Department, constituted disabilities within the meaning of the DDA.
5 Because of the view I have taken about other aspects of Beau’s case it will not be necessary for me to seek to resolve the differences between the parties as to the diagnosis of Beau’s medical conditions.
6 Between 1999 and 2005, Beau attended school at Panton Hill Primary School (“Panton Hill”), with the exception of terms 3 and 4 of 2000 when he attended Diamond Creek Primary School. In January 2006 Beau commenced attending Eltham High School (“Eltham”). Beau stopped attending Eltham on 15 May 2008 and did not again attend school until 21 July 2008, when he commenced at St Helena Secondary School (“St Helena”). Beau ceased attending St Helena on 2 December 2009 and did not attend school again until he commenced at Collingwood Alternative School (“Collingwood”) on 12 April 2010. He remained at Collingwood until 23 June 2010. The movement between schools in the course of Beau’s secondary education occurred because Mr Abela was dissatisfied with the treatment of Beau by the teachers and administrators at the schools and because of his negative reaction to their responses to his complaints.
THE TWO APPLICATIONS
7 Beau has made two applications. The first (VID 405 of 2011) was originally commenced in this Court as VID 558 of 2008 on 18 July 2008. It was transferred to the Federal Magistrates Court in 2008 and was later transferred back this Court as VID 405 of 2011. This application related to a complaint of discrimination, made on 15 January 2008, by Mr Abela on behalf of Beau. The complaint was lodged with and considered by the Human Rights and Equal Opportunity Commission (“the Commission”). By notice, dated 25 June 2008, the Commission terminated the complaint pursuant to s 46PH(1)(i) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOCA”). By reason of the provisions of s 46PO of the HREOCA this first application could only deal with acts or omissions on the part of the Department which occurred on or before the date on which the complaint was lodged with the Commission: see Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 at 579-580.
8 In order to deal with the alleged acts and omissions which occurred after that date it was necessary for a second complaint to be lodged with the Commission. Such a complaint was lodged on 3 May 2011. It was terminated by the Commission on 12 August 2011. Beau then lodged his second application (VID 1102 of 2011).
9 I ordered that the applications should be consolidated and heard together.
10 Once the two proceedings were joined a consolidated statement of claim was prepared. It was subsequently amended. By the time the trial commenced a further amended consolidated statement of claim had been filed pursuant to leave granted by the Court and a further amended consolidated defence had been prepared.
THE STATUTORY FRAMEWORK
11 Beau’s primary claim was 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.
12 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.”
13 It was not in dispute that the State of Victoria, acting through the Department, was “an educational authority” for the purposes of s 22(2).
14 Proscribed discrimination may be direct or indirect in form. Beau alleged that he suffered from indirect discrimination throughout his primary and secondary education. His claim of direct discrimination was confined to a period, commencing in November 2010, during which it was alleged that the Department had refused to enrol Beau in any educational institution controlled by it.
15 At relevant times s 5 of the DDA defined direct discrimination as follows:
“(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.
(2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and
(b) the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.
(3) For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.”
16 ‘Reasonable adjustment’ is defined under s 4(1) of the DDA as:
“[a]n adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person”
17 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.”
18 Beau further claimed that the Department had contravened Parts 3-7 of the Disability Standards for Education 2005 (“the Disability Standards”), 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 reasonable adjustments, enrolment, participation, curriculum development and the provision of support services. The Disability Standards commenced operation on 18 August 2005.
19 The Department relied, 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.
20 In the event that an adverse finding of discrimination were 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 18 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.
21 A statute of limitations defence was also raised in respect of any conduct occurring prior to 18 July 2002.
22 The Department further contended that the provisions of the DDA should be read down in light of the implied Constitutional limitation on the legislative power of the Commonwealth which was identified in Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188. It was submitted that such a limitation applies to the extent that the DDA operates to interfere with or curtail the State in its capacity to function as a government and, therefore, to the extent that the DDA purports to impose a liability for unlawful discrimination or a breach of the Disability Standards where such conduct occurs because of a decision by the Department to:
(a) employ or engage (or not employ or engage) particular numbers of staff, or staff of a particular identity, including teachers, teacher’s aides, speech therapists and/or other medical, allied health or educational experts; and/or
(b) otherwise allocate (or not allocate) resources in a particular manner.
ONUS OF PROOF
23 Beau bears the onus of proof in establishing his claims in relation to disability discrimination: 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 Beau are indeed serious and this must be borne in the mind when assessing the strength of the evidence adduced in support of Beau’s claims: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2; Evidence Act 1995 (Cth) s 140.
THE WITNESSES
24 Most of the witnesses swore or affirmed detailed affidavits. Some, however, attended under subpoena and did not provide affidavits. At this stage, for the most part, I propose to confine my attention to the views which I formed about the reliability of and the weight to be accorded to each witnesses’ testimony. In a number of instances it will be necessary to refer to the substance of some of their evidence for this purpose. I will also provide an outline of the evidence given by witnesses who appeared under subpoena.
25 The principal witness for Beau was his father. Mr Abela was obviously dedicated to his son. He had brought him up as a sole parent and sought to do whatever he considered to be appropriate to assist his son. He was particularly concerned to ensure that his son received a better education than he had done. Mr Abela had his own problems with literacy and numeracy and was not able to assist Beau to the extent that he wished. His own disability meant that he had an imperfect understanding of some of the medical and educational reports which he received. He was not, however, lacking in intelligence.
26 Despite medical advice that Beau suffered from ADHD throughout his schooling, Mr Abela was reluctant to accept that Beau had ever suffered from the condition. He said that in his opinion “my son never had ADHD.” He went on: “I don’t believe children have ADHD. I don’t believe in it.” On a number of occasions he sought alternative opinions. His views had implications for Beau’s education. He said that it was “against [his] rules” to give Beau ADHD medication during term breaks. He also stated that “drugs don’t make better outcomes” and he was opposed to the administration of extra doses of Retalin because he thought that all they achieved was making Beau a “zombie in class”. He adhered to this view notwithstanding advice from Beau’s teachers that, when Beau was taking his medication, he was far more responsive in class and was not disruptive.
27 At various points in his evidence Mr Abela was prepared, sometimes grudgingly, to acknowledge that Beau’s teachers had tried hard to assist him. At one point Mr Abela said that the “teachers had done wonders with what they had to work with” but the problem was that they “don’t have the funds to teach the kids.” Speaking specifically of Eltham he said that he appreciated what the school had done for his son “but he needs more.” On the other hand he referred despairingly to Collingwood as “a school for drop outs.”
28 Reflecting, more generally, Mr Abela said that “the government failed my son” and that “Beau was cheated of his education.”
29 Mr Abela accepted that he had made the decision to withdraw Beau from Eltham, St Helena and Collingwood. His stated reason for withdrawing Beau from both Eltham and Collingwood was that Beau had been bullied at those schools. Beau’s withdrawal from St Helena occurred because of Mr Abela’s reaction to an allegation that Beau had assaulted another student.
30 Mr Abela forcefully asserted that it was the school’s job to educate Beau and not his. This attitude gave rise to regular conflict between Mr Abela and school authorities. Over many years, for example, Mr Abela didn’t sign and return homework programs for Beau. He said that this was because, when he had told the principal at Panton Hill, that Beau was struggling, the principal had effectively said not to press Beau to do the work. When taken to a series of school reports in which teachers had stressed the need for Beau to do homework each night he then asserted that Beau’s failure to do homework could not be said to have any marked bearing on his failure to achieve reasonable standards of literacy and numeracy; assistance in these areas was a responsibility that fell on Beau’s teachers during school hours.
31 In 2006, when Beau was attending Eltham, Mr Abela was advised that Beau had been disruptive in class. Mr Abela’s response was “it’s your problem” because he considered that it was the school’s duty to control Beau while he was there. Mr Abela said that he believed that it was the school’s responsibility to obtain specialist resources to deal with Beau’s problem. He told the principal “I haven’t got time for this.”
32 Eltham established a program support group for Beau. Mr Abela went to the first few meetings and then stopped going.
33 On many occasions, when Beau was attending St Helena’s and Collingwood Mr Abela refused to co-operate with school administrators. He told both schools that they were not to contact him. He did not attend meetings to which he was invited by teachers who were overseeing Beau’s progress despite encouragement by the teachers for him to do so.
34 Mr Abela was not a good historian. Although many examples emerged in evidence a few will serve to illustrate the point. At one point Mr Abela said that he had “never met” Beau’s grade 5/6 teacher Ms Csefalvay. When he was shown minutes of meetings which he had attended with her at the school he retreated to: “I can’t put a face to her.”
35 Mr Abela denied having had a conversation with the principal of Eltham early in February 2007 when Beau attended unexpectedly at the school (he was supposed to have been going to a special school elsewhere). Mr Abela was shown a copy of a letter which had been sent to him by the principal in which reference was made to the alleged conversation. That letter and another, which had been sent four days later containing the timetable for Beau at Eltham, were both returned to the school because Mr Abela had marked them “return to sender”.
36 As a result of these discrepancies and in so far as the issues raised are material, I have preferred to act on the contemporaneous documentary record in preference to Mr Abela’s oral evidence where there was conflict.
37 A number of expert witnesses were called in support of Beau’s case. The first was Professor Max Coltheart. He was an expert in cognitive science. He gave his evidence in an objective and non-partisan manner. He agreed with a number of propositions which were clearly antipathetic to the interests of Beau. In particular, he accepted the proposition that some, but not all, students with a low IQ (70 or below) such as Beau can be assisted by direct instruction and other methods to improve their literacy and numeracy. He agreed that his view on the linkage between IQ levels and reading capacity being weak is not the majority view.
38 Professor Coltheart is an advocate of direct instruction as a means of remedying a student’s deficiencies in literacy and numeracy. He supported the use of commercial products which were available on the market to be used to assist in this form of instruction. He conceded that such products, and, indeed, the direct instruction method itself is not used, accepted and applied in the majority of Australian and US schools. He also agreed that his support for the method was a minority view.
39 Dr Kerin Hempenstall is an educational psychologist. He retired from the RMIT University at the end of 2008. He specialises in reading difficulties.
40 Although his expertise was accepted by the respondent, his evidence was highly partisan. In August and September 2008 he prepared a report on Beau at Mr Abela’s request. That report was not prepared for use at St Helena’s where Beau was then attending. Once the litigation had commenced Dr Hempenstall prepared three affidavits. All of them were critical of the schools attended by Beau. Some of those criticisms were plainly unfounded. He alleged, for example, contrary to the fact that the principal at Eltham had “conveniently” failed in an affidavit which he had sworn, to refer to the possibility that poor teaching could have been responsible for Beau’s poor reading and numeracy. Many of his answers under cross-examination were non-responsive and argumentative. Dr Hempenstall only made one assessment of Beau. He conceded that the assessment may have been prejudiced by Beau’s lack of co-operation and that it was possible that it disclosed a reading level below that for which Beau was truly qualified.
41 Like Professor Coltheart, Dr Hempenstall is an advocate of the direct instruction method of teaching. He contrasted direct intervention, which he described as an evidence-based practice for intervention with struggling students, with the “whole language” approach which is commonly used in Australian schools. He said that this approach “drives teacher education” even though it is, in his view, ineffective and contrary to more modern research. He acknowledged that direct intervention is not taught in Australian educational faculties. As a result teachers are not trained in its use.
42 The thrust of the evidence of these two experts was that, had the direct instruction teaching method which they favoured been employed by Beau’s teachers, Beau’s numeracy and literacy would or may have progressed to a higher standard than that which he achieved.
43 Professor Hugh McCusker is also a speech pathologist. Whilst employed by a private firm in 2007 he attended Eltham to assist Beau. Beau was then in year 8. Professor McCusker first visited the school in May 2007 and he subsequently attended on five or six occasions. He thought that he might have seen Beau on three or four of these occasions. He had a limited recollection of the details of Beau’s case. He did not recollect, for example, any details of Beau’s reading age in 2007.
44 He had some problems dealing with Beau. Beau was reluctant to be assessed and to read. Short periods of effective work were limited to 10 to 20 minutes. Professor McCusker recommended that certain techniques be adopted by teachers at Eltham to assist Beau’s reading. So far as he was aware the teachers acted on his recommendations. He noted some improvement in Beau’s reading but could recall no details of any assessment which supported this view.
45 Professor McCusker was impressed by the willingness of Eltham staff to support the intervention process for Beau and by their professionalism. As far as he was aware the staff made concerted efforts to engage Beau in learning despite his resistance.
46 Another speech pathologist, Professor Sheena Reilly, was also called. She was a strong advocate of what she described as “best practice” for dealing with language impaired students. That practice involved multi-disciplinary specialist teams working with the student. Professor Reilly said that her best practice model should be implemented as soon as psychological and speech therapy testing established that a student suffered from language impairment. She acknowledged, however, that, because of a scarcity of people with the necessary professional qualifications in Australia, it was unusual for “best practice” teams to treat such students in Australia.
47 A third speech pathologist was called by the applicant. She was Ms Miranda Van Styn. She had tested Beau at the request of the applicant’s solicitors and had provided a report. The report had been prepared in March 2009.
48 Ms Van Styn had assessed Beau’s receptive and expressive language skills. She had diagnosed a severe language impairment. It was so bad as to warrant, in her opinion, Beau being taken out of the classroom altogether and being taught separately. Ms Van Styn had not assessed Beau’s pragmatic language skills.
49 Ms Van Styn accepted that, in answering one of the questions posed for her opinion, she had, in her report, made a non-responsive and gratuitous attack on the level of assistance provided to Beau during his primary school years. She accepted that she had responded as an advocate rather than an objective expert.
50 Mr Christopher O’Brien was a retired and experienced primary school teacher and principal. He had a particular interest in special needs education. He gave some general evidence about the methods and resources which were needed to assist students with special needs. He acknowledged that the school/home partnership was important in providing assistance to such students.
51 His evidence was of limited assistance because he had never met Beau, Beau’s teachers or been to any of the schools which Beau attended.
52 Beau also called three teachers aides who had taught him at various times. Each appeared under subpoena.
53 The first was Ms Deborah Anderson. She had taught Beau in grade 4 in 2003 at Panton Hill. She spent one morning (9-11 am) each week helping Beau. She assisted with literacy and numeracy training in accordance with requests made by Beau’s class teacher. She worked under the direction of the teacher and carried out the teacher’s instructions. Beau was doing grade 2 level work. The class teacher had wanted Beau to take work home and asked him to do that. Ms Anderson never saw any evidence of homework having been done.
54 The second teacher’s aide who was called was Ms Jeanette Carazza. She was an integration aide and a teacher’s aide who had assisted Beau at Eltham in 2006 and 2007. In 2006 she worked with him for four to five 50 minute periods per week. The programs being provided to other students at year 7 level were modified in an effort to make the material comprehensible for Beau. She taught Beau in the integration office. At the time she was one of five aides who were working with Beau. The others worked with him in the classroom.
55 Ms Carazza knew that Beau had been diagnosed with ADHD. She enjoyed a good relationship with him. She reported on Beau’s progress to the integration co-ordinator Ms Sue Pickett, and to classroom teachers. There were two to three meetings per week between integration aides to discuss Beau’s progress. In 2006 Beau had a mentor. He was a senior student who had pressed on with his education despite having similar problems to Beau. Ms Carazza also attended some meetings of the program support group which had been established to assist Beau.
56 Ms Carazza did not consider that Beau had language difficulties. She thought that he was progressing with slow but notable steps. Ms Carazza had worked with Professor McCusker and was trained by him in the implementation of literacy programs for Beau. She continued to assist Beau until May 2008 when he left Eltham. Ms Carazza encouraged Beau to read Andy Griffith books. They read three or four of them. Beau would read one paragraph and Ms Carazza the next. Beau could read and comprehend the contents of books chosen for him. She believed that Beau had a clear understanding of what he was reading. She encouraged him to read to other members of staff. He did so well and was “beaming”. This had raised his self esteem. When reading Beau used appropriate intonations. She had little need to contact Professor McCusker at times when he wasn’t at the school because the program which he had recommended was being pursued successfully.
57 Ms Carazza expressed the opinion that Beau had had more support at Eltham than any other student in her 27 years’ experience. That support was almost full-time one to one assistance. When Beau left Eltham he was reading at grade 4 level. Ms Carazza said that homework was regularly set for Beau but was never done. She had approached Mr Abela about reading at home but he had not been enthusiastic.
58 The third aide who was called was Ms Cassandra Kreymbourg. She was an integration aide. She had no formal qualifications but had done a good deal of in-service training.
59 Ms Kreymbourg worked with Beau in class in 2007 (four 50 minute periods per week). She was aware of Beau’s disabilities.
60 Ms Kreymbourg said that an education plan had been prepared for Beau. She worked from the plan. The plan covered matters such as behaviour, reading and goals. There had been many discussions between the aides who were assisting Beau at Eltham during 2007.
61 Ms Kreymbourg recalled Professor McCusker attending the school to provide assistance for Beau. She had been one of the aides who had implemented the programs which Professor McCusker had recommended. In her view Beau’s reading ability when he arrived at Eltham was middle primary. By 2008 he had reached approximately grade 6 level.
62 Beau’s sister Jade and his grandmother June gave some evidence about their observations of Beau’s school and home life and his reactions to the many difficulties with which he had been confronted as he grew up. Their evidence was helpful in explaining how Beau was affected by his domestic and school environments. It did not, however, bear directly on any of the central issues in dispute in the proceeding.
63 The respondent called evidence from each of the principals of the schools attended by Beau. The principals who were called were Mr Ross Allison (Panton Hill), Mr Vincent Sicari (Eltham), Ms Trudy Thomson (St Helena) and Mr Chris Astley (Collingwood). Each gave evidence about Beau’s learning difficulties and the steps which were taken by their schools to assist him to learn at the highest possible standard.
64 Each of the principals swore or affirmed lengthy affidavits to which were exhibited extensive documentary records relating to Beau’s educational progress, assessments made of his disabilities and the resources deployed to deal with them. These documents included school reports, referrals to and reports by external experts, individual education plans, the minutes of meetings held to review Beau’s progress and correspondence between the schools and Mr Abela and others acting on his behalf.
65 Each of the principals impressed me as caring and competent educators and administrators. They were committed to providing the best education possible for Beau and his fellow students but were, at times, constrained by the limited resources which were available to them. Each, to varying degrees, had had difficulty in dealing with Mr Abela in relation to educational and other issues concerning Beau.
66 Beau’s year 2/3 teacher at Panton Hill in 2002, Ms Bernadette Towan, provided a detailed account of her work with Beau.
67 Ms Towan was aware that Beau had learning difficulties and went to great lengths to assist him as best she could. She was obviously concerned for Beau’s welfare and did what she could to obtain additional assistance, such as reading recovery sessions, to assist Beau.
68 Three senior departmental officers were called. They were Ms Krystyn Hendrickson, Mr David Brooks and Mr Mark Tainsh.
69 Ms Hendrickson has been an Assistant Regional Director of the Northern Metropolitan Region of the Department since August 2009. Collingwood was one of the schools in this region.
70 Ms Hendrickson had attended a meeting to discuss Beau’s progress at Collingwood shortly before Mr Abela withdrew him from that school in 2010. Later in the year Mr Abela attempted to arrange for Beau to be re-enrolled at Collingwood. There was considerable correspondence between an advocate, acting on behalf of Mr Abela, and regional officers relating to the proposed re-enrolment.
71 Ms Hendrickson appears to have been called as a witness because she had signed a letter which explained the reasons why Collingwood had refused to re-admit Beau. Her evidence was of limited assistance because the reasons which she set out in the letter were those supplied to her by Collingwood. They referred to events which had occurred at the school but of which she had no personal knowledge.
72 Ms Hendrickson was cross-examined about other letters which had passed between Mr Abela and the advocate on one hand and other officers in the regional directorate on the other. Ms Hendrickson was not the author or the recipient of these other letters and was able to add little to their text.
73 Mr Brooks was also an Assistant Regional Director of the Northern Metropolitan Region. He held this position between August 2009 and October 2011. In that capacity he had had a number of communications with Mr Abela regarding the enrolment of Beau at Collingwood. He also had a number of conversations (some of them acrimonious) with Mr Abela following Mr Abela’s withdrawal of Beau from Collingwood. He had written to Mr Abela about Beau’s re-enrolment at Collingwood.
74 Mr Brooks’ evidence was largely uncontroversial. Much of it was supported by contemporaneous notes taken by him.
75 Mr Tainsh has held the position of Acting Assistant General Manager of the Student Wellbeing Division of the Department since December 2010. His affidavit contained a good deal of statistical and budgetary information which went to issues which, in the event, I have not been required to determine.
76 The Department also led evidence from a number of experts in the treatment of disabilities of the kind suffered by Beau and from an epidemiologist. As will become apparent later in these reasons I have not found it necessary to rely on this evidence in order to resolve contentious issues.
inDIRECT DISCRIMINATION
77 In his Further Consolidated Statement of Claim (“the FCSC”) at paragraph 11, Beau pleaded that the Department indirectly discriminated against him within the meaning of s 6 of the DDA as follows:
“(a) the Respondent has imposed a requirement or condition that the Applicant access his education without the assistance the Applicant required;
…
(b) the Applicant [sic] unable to comply with the requirement or condition;
…
(c) the majority of students without the Applicant’s disabilities can comply with the requirement or condition;
…
(d) the requirement or condition is not reasonable having regard to the circumstances.”
These allegations did little more than paraphrase the statutory definition of indirect discrimination. Some particulars were, however, provided under each paragraph. It will be necessary, later in these reasons, to return to these particulars in greater detail. It is sufficient at this point to record that most of the particulars were framed at such a level of generality that they failed to clarify important aspects of Beau’s case.
78 The assistance which Beau said he required was identified in paragraph 7 of his FCSC. He pleaded that his education required:
“(a) significant, if not full time, one to one assistance in his academic subjects from a teacher or aide who is trained in the management of his disabilities … ; and
(b) modified curriculum;
…
(c) an Individual Education Plan developed in consultation with experts in the Applicant’s disabilities … ;
…
(d) speech/language therapy: the Applicant required ongoing speech therapy by a Speech Pathologist, and a speech pathologist to develop an individual program for the Applicant, to be implemented in the school …”
79 As I understand the case which was put on Beau’s behalf, it was 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 preceding paragraph.
80 The Department contended that Beau 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 Beau had, in fact, been imposed on him. I accept these submissions.
81 Beau’s pleaded case is fundamentally flawed for a number of reasons.
82 The first deficiency is that the central allegations which are made are not allegations of indirect discrimination.
83 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).
84 The distinction is important because the definitions of direct and indirect discrimination in the DDA are mutually exclusive: cf Australian Medical Council v Wilson (1996) 68 FCR 46.
85 The requirements or conditions with which s 6 of the DDA is concerned are requirements or conditions which have general application but which bear oppressively on a particular cohort or group which the legislation is designed to protect. Relevantly that group or cohort comprises persons suffering from some form of disability which is comprehended by the Act. Thus, a requirement that students at a school should utilise a toilet in a building other than the one in which their classroom was located was found to be discriminatory against disabled students who, by reason of physical disability, regularly required urgent access to a toilet: see Travers v New South Wales (2001) 163 FLR 99. Similarly, a requirement that all students attending a school should comply with the school discipline policy was found to be discriminatory against students who suffered from the psychological condition of “conduct disorder”, the manifestations of which rendered them incapable of compliance: see Minns v New South Wales [2002] FMCA 60.
86 In dealing with the equivalent definition of indirect discrimination in the Racial Discrimination Act 1975 (Cth) in Wilson, Heerey J expressed the view that a “condition or requirement” was one which did not have “any apparent connection with race, colour etc …” (at 63). The conditions and requirements with which provisions such as s 6 are concerned were said by his Honour to be “conditions or requirements which impacted in a disproportionately adverse way on members of the complainant’s protected group …”. The protected group is a sub-group of a larger group whose members are all subject to the term or condition.
87 Expert evidence, of the kind called by Beau from educational psychologists and speech pathologists, which focused on how he should have been taught and the resources which they considered should have been devoted to that task, cannot be relied on to formulate a requirement or condition by the device of pleading that an applicant needs particular forms of assistance and that the failure to provide them constitutes a requirement or condition that he or she “access” education, employment or other relevant service without such facilities. The difficulty is particularly apparent in this case where expert evidence was given (by Professor Coltheart and Dr Hempenstall) that Beau should have been taught by way of direct instruction but where the experts also accepted that their views about the efficacy of direct instruction were not shared by a majority of their professional peers. The problem is exacerbated where, as in the present case, the respondent calls evidence from other experts which disputes material claims made by the applicant’s expert witnesses. The existence of a requirement or condition within the meaning of s 6 of the DDA cannot be made to depend on the resolution, by the Court, of conflicting expert evidence relating to the needs of a particular individual.
88 The indirect discrimination case pleaded by Beau does not allege any terms or conditions, within the meaning of s 6 of the DDA, which are of general application or which are “facially neutral”. On the contrary, each of the terms and conditions which he has formulated alleged deficiencies on the part of the Department. He complained that the Department failed to act in particular ways in response to his particular disability-related needs.
89 Beau pleaded in paragraphs 7(a) and 11(a) of his FCSC that the Department imposed upon him a requirement or condition that he access his education without “significant, if not full-time” one-to-one assistance, from a teacher or aide trained in the management of his disabilities.
90 The second requirement or condition on which Beau sought to rely was that he access his education without a “modified curriculum”. He pleaded that such a curriculum was one that:
• Took into account and addressed each and every one of his disabilities;
• Utilised “dynamic strategies uniquely or specifically designed” to address his disabilities; and
• Was prepared and implemented by a qualified special education teacher with input from various other professionals, such as a psychologist, a speech pathologist, an occupational therapist and class teachers in order that Beau could access the same curriculum as his peers.
91 Beau pleaded that he was required to access his education without “an Individual Education Plan developed in consultation with experts in the Applicant’s disabilities”. The particulars subjoined to paragraph 7(c) of the FCSC asserted that such a plan was required in each school year based on Beau’s disabilities and learning needs and that the plan had to include therapies needed by Beau and one-to-one support. It was also claimed that the content of the plan should have included “the strategies required to educate [Beau], and any information calculated to assist the … teaching, professional, or other staff to provide an informed and coordinated approach to his learning”. Furthermore, the Individual Education Plan should, it was said, have incorporated mechanisms for “monitoring and review” of his progress.
92 None of these alleged requirements or conditions applied generally to students at the schools attended by Beau. They were not facially neutral. They were specific to Beau.
93 As Sackville and Stone JJ (with whom Tamberlin J agreed) held, in Catholic Education Office v Clarke (2004) 138 FCR 121 at 143, “the expression “requirement or condition” in s 6 of the DD Act should be construed broadly to include any form of qualification or pre-requisite, although the actual requirement or condition should be formulated with some precision: see 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.”
94 Although Clarke and other authorities such as Banovic and Waters demonstrate that considerable latitude is afforded to applicants in formulating the requirement or condition about which they complain, there must, of necessity, be an attempt to identify clearly what objectionable burden the applicant has had imposed on him or her. The impugned stipulation must be identified with precision: see New South Wales v Amery (2006) 230 CLR 174 at 212 (per Kirby J). This is particularly necessary where the term or condition has been framed by the applicant and attributed to the respondent. The greater the generality in which the alleged term or condition is framed, the less likely it is to be a term or condition for the purposes of s 6.
95 As I held in Walker v State of Victoria (2011) 279 ALR 284 at 314-5, precision is necessary in order to ensure fairness to the respondent. In many cases this will not be difficult because the applicant will be relying on some written rule or pre-requisite 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 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.
96 Further difficulties arise when, as here, qualifying adjectives such as “significant”, “modified” or, “dynamic”, are used to describe an impugned requirement or condition. The Court has accepted that a stipulation (express or implied) to which a recipient of services may be subject can constitute a requirement or condition because the practical effects of the operation of the stipulation must be experienced by a person who wishes to use the relevant services. Thus, in Waters, the High Court held that a provider of tram services had imposed a requirement or condition that passengers travel without the assistance of conductors. Similarly, in Hurst v Queensland (2006) 151 FCR 562, a Full Court of this Court accepted that an education provider had impliedly imposed a condition that students “be taught in English (including signed English) without the assistance of an Auslan teacher, or an Auslan interpreter.” The Court found that it was possible for each student in a “normal” school environment to receive instruction without the assistance of an Auslan interpreter but that profoundly deaf students were seriously disadvantaged by such a regime. See also Nojin v The Commonwealth (2012) 298 ALR 410 at 452-453; 460-462; 466-7; 478-480. In these cases the respondent was left in no doubt as to the conduct which gave rise to the complaint. In Waters it was the respondent’s decision to cease to employ conductors on its trams. In Hurst it was the respondent’s failure to provide instruction using the Auslan method of signing. As formulated the requirements and conditions did not introduce issues about the standard at which the particular incidents of service should be provided. The introduction of qualifications which require a respondent and the Court to form a judgment, not about whether or not a particular condition had been imposed, but rather whether a service had been provided at a particular standard or quality, tends to imprecision. Respondents are left to make their own subjective assessment about whether or not they have provided services at the standard which met the adjectival description. The Court could be called upon to make value judgments and possibly resolve conflicting expert evidence in order to determine what was comprehended by the alleged requirement or condition.
97 In the present case the Department, which at times provided Beau with the exclusive or part time services of a teacher’s aide, was left to speculate about was meant by “significant” one-to-one assistance. Although conceding, elsewhere in his FCSC (for example, in the particulars sub-joined to paragraph 10(c)) that curriculum modifications had been made for him, Beau left the Department to speculate as to whether or not these modifications included “dynamic strategies” which were designed to accommodate his disabilities.
98 The documentary evidence included a number of individual education plans which had been prepared to guide those responsible for Beau’s education at various stages of his journey through the Victorian education system. A number of people with professional qualifications, including teachers, had had input into the formulation of these plans. There were some years in which no written plan was prepared but there was evidence that less formal plans had been incorporated in teacher’s notes. In framing the relevant requirement or condition, the author of the FCSC made no distinction between those years in which a formal written plan was prepared and those in which one was not. It made no distinction between formal and less formal plans. It failed to identify the “experts”, presumably, including the teachers with special qualifications in teaching students with disabilities, who, from time to time, had had the care of Beau.
99 Beau has, in my opinion, failed to identify requirements and conditions which applied generally to the students at the schools he attended but which fell onerously upon him by reason of his disabilities. Rather, he has sought to construct a litany of purported deficiencies in the services provided by the Department to him as a disabled person. In doing so he has sought to identify the relevant deficiencies, not by reference to the question of whether particular services were or were not provided, but, rather, in most cases, by fixing on imprecise standards which he claimed should have been, but were not, met by the Department.
100 In his reasons for decision in Walker v State of Victoria [2012] FCAFC 38 at [114] Gray J (with whom Reeves J agreed) cautioned that:
“Before a proceeding is brought after … a complaint [of disability discrimination] has been terminated, the legal representatives engaged on behalf of a vulnerable person have a particular duty to ensure that complaints and grievances that are not capable of being brought within the Disability Discrimination Act are not pursued, and that those that are pursued are related clearly and directly to the provisions of the Disability Discrimination Act.”
101 His Honour had earlier observed (at [73]) that:
“No provision of the Disability Discrimination Act empowers the Court to undertake a general inquiry into the best interests, or the vulnerability, of a child with disabilities. Whatever provisions guidelines adopted by a State with respect to students with disabilities might make, and whatever benefits or expectations such guidelines might create, they are not the subject of enforcement under the Disability Discrimination Act.”
102 In this context his Honour also said (at [72]) that the Act is “not an adequate vehicle for addressing all of the complaints that [a student’s] parents had about the adequacy of the services provided to the [student] by the respondent in the schools he attended.”
103 This, unfortunately, is yet another case in which a well-meaning parent has been led to believe that redress is available under the DDA for what he perceived to be deficiencies in the manner in which educational services have been provided to his or her children by an educational provider.
104 For the reasons which I have given I do not consider that Beau has established the existence of any relevant requirement or condition within the meaning of s 6 of the DDA. Furthermore, his attempts to formulate such “requirements or conditions” lack the necessary precision even when a generous construction is accorded to those words.
105 The statutory requirements of s 6 were amended by the Disability and Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth) which came into effect on 5 August 2009. I do not propose to consider Beau’s indirect discrimination claim in light of these amendments as the pleadings do not seek to rely on them.
ALLEGED IMPOSITION OF REQUIREMENTS AND CONDITIONS
106 The Department argued, in the alternative, that, in the event that it were found that one or more of the implied stipulations constituted a requirement or condition for the purposes of s 6 of the DDA, no such requirement or condition had, as a matter of fact, been imposed on Beau by the Department.
107 Lest I be mistaken in finding that no relevant requirement or condition which fell within the meaning of s 6 has been identified, I propose to deal with the Department’s alternative submission. It is, as I have said, a submission which I accept.
108 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). It is, therefore, necessary to examine the relevant aspects of the educational services provided to Beau by the Department.
One-to-one assistance
109 Beau alleged that the Department required him to be educated without “significant, if not full time, one to one assistance in his academic subjects from a teacher or aide trained in the management of his disabilities.”
110 The Department contended that no such condition was ever imposed upon Beau by any of the schools he attended. The Department argued that there was, at all times, a certain level of assistance provided and that, over time, the level of one-to-one assistance escalated. It was submitted that adjustments were made to the level of one-to-one assistance throughout Beau’s education depending on the circumstances and on a day-to-day basis.
111 Beau did not have one-to-one assistance at all times whilst he was at Panton Hill if this term is to be understood as describing a regime under which, when Beau was in the classroom, he was supported by a teacher or teacher’s aide who gave him his or her exclusive attention. One-to-one assistance was not provided in 1999, when Beau was in Prep.
112 In 2000 Beau was referred by the school to an educational psychologist and a speech pathologist. Neither suggested that Beau needed full-time one-to-one assistance. The educational psychologist recommended that “continued literacy support” be provided to Beau. Both specialists also recommended that Beau’s teacher should present information to him in “manageable steps” in order to compensate for what they diagnosed as his short term auditory memory/attentional difficulties. The speech pathologist further recommended that Beau should be allowed extra time to complete tasks. These recommendations were implemented.
113 In Grade 1, Beau was provided with priority placement in the Reading Recovery Program which involved daily 30 minute one-to-one sessions of intensive remedial literacy instruction with an experienced Reading Recovery trained teacher. This arrangement continued in Grade 2. In Grade 3, the remedial literacy assistance was provided three times per week, and Beau’s classroom teacher devoted large amounts of time to assisting him. In Grade 4, Beau received assistance from his classroom teacher and was assisted by an integration aide 1 – 2 mornings per week, for two hours. He had a modified literacy program and additional assistance with numeracy. In Grade 5 Beau was withdrawn from non-core subjects in order for him to receive intensive remedial literacy sessions several times a week and, in Grade 6, he was engaged in a language support program with a Reading Recovery trained teacher two afternoons per week, received help with spelling from a parent helper in mainstream classes and extra assistance in mathematics.
114 In 2006, shortly after he had commenced at Eltham, Beau was assessed by an educational psychologist. The same psychologist, Ms Clements had assessed him in 2003. In 2006 she found “a clear deterioration in his cognitive levels”. She considered that he was then suffering from an intellectual disability. In her report Ms Clements referred to the extensive modifications and adjustments which had been made to the curriculum at Eltham in order to accommodate Beau’s needs. She considered the behavioural and emotional issues being experienced by him and the need for modifications to be made to methods of instruction so that Beau could better assimilate the material presented to him. She did not, however, recommend that he receive personal attention additional to that which was already being provided.
115 That assistance was provided by integration aides during at least 8 or 9 classes per week. In addition individual attention was given by classroom teachers and the school’s integration coordinator. Beau received counselling, medical monitoring, mentoring and travel assistance. He also spent the third school term of that year at the Department’s Coburg Teaching Unit, where he undertook an intensive educational social skills program in a class of 4-6 students. At the end of the term an assessment of Beau’s progress was made. It was recommended that he transfer to a special school. There was, however, no recommendation that, were he to return to Eltham, he should have the full-time assistance of a dedicated aide. In Grade 8, Beau received increased support from aides and a personalised remedial literacy program devised by a speech pathologist. In Grade 9 delivery of the remedial literacy program continued. This occurred twice daily. There was ongoing support from integration aides, including increased support during the difficult period leading up to his withdrawal from the school in May of 2008.
116 During the time at which Beau was attending Eltham assessments of his disabilities were made on a number of occasions. Some of these assessments were undertaken at the instigation of the Department and others at the request of Mr Abela. In addition to the assessments already mentioned, Beau was assessed, in late 2006, by an occupational therapist and by a speech pathologist. In 2007 a report was provided by the psychology unit at Victoria University. In 2008 he was assessed by Dr Hempenstall and in 2009 by Ms Van Styn. Notably, Ms Van Styn reported that “Beau is currently in an extremely supportive learning environment receiving a lot of one-to-one assistance with an individual learning plan.” For present purposes these reports and assessments are significant for what they do not say: none of them recommended that Beau required one-to-one assistance beyond that which was being provided at the time at which the assessment was made.
117 At St Helena, where, in 2008, Beau repeated Grade 8, he received, among other things, aide assistance in 29 of his 30 classes per week, including intensive instruction in literacy, numeracy and independent life skills. Beau continued to receive this kind of support in 2009.
118 Individual assistance was provided to Beau at each of the schools which he attended. The extent of that assistance varied in accordance with the professional advice received by the respective principals. In circumstances in which the schools acted on professional advice and progressively increased the level of assistance provided to Beau in accordance with that advice, it is not, in my view, open to find that the level of the one-to-one assistance provided to him, from time to time, was not “significant”. “Significant” is a relative term and must be assessed in the context of Beau’s fluctuating needs. As those needs changed there was a proportionate response by the Department.
119 No condition of the kind alleged was imposed.
Modified Curriculum
120 Beau complained that he had been required to undertake his education at each level without being provided with what he described as a “modified curriculum”. He provided some very general particulars relating to how such a curriculum should have been framed and delivered. The Department submitted that no such requirement was imposed.
121 From 2000 onwards, Beau’s curriculum was modified with his individual needs in mind. During the course of his education, the views of various experts, including educational psychologists, speech pathologists, audiologists, optometrists, occupational therapists, neuropsychologists and literacy teachers were sought in order to provide appropriate supports for Beau’s education. Individuals with special education qualifications were also involved in the development and implementation of Beau’s curriculum.
122 At Panton Hill, in Grade 1, Beau was provided with priority placement in a reading and literacy program. This continued into Grade 2. During Grade 2 Beau was also provided with an adjusted mathematics curriculum in which the level of tasks given to him differed from the level of tasks given to his peers. In Grade 3, Beau’s class was broken down into small groups of 3 – 4 students and classroom work allocated according to academic ability. He also continued to receive remedial literacy tuition outside the classroom. In Grade 4, Beau received individualised literacy and mathematics programs and undertook specially set work with the school integration aide. In Grade 5 Beau was taught a modified literacy and mathematics program, continued to attend remedial literacy classes and was given an Individual Learning Improvement Plan which set out modified homework tasks to support Beau’s literacy and numeracy development. In Grade 6 Beau again received modified literacy and mathematics program, a language support program, a special homework plan and a modified integrated studies program.
123 At Eltham, Beau’s curriculum was developed, insofar as was possible, around his interests and to suit his ability, age and progress. In Grade 7 Beau’s curriculum in a number of subjects, including English, Mathematics, French, Studies of Society and Environment, Art, Music, Wood Technology and Science, was modified. A laptop computer was purchased specifically for Beau’s use. Beau participated in twice weekly remedial numeracy classes. He also attended the Coburg Teaching Unit where he undertook an intensive educational program and was withdrawn from French class to spend further time on improving literacy skills. In Grade 8 Beau’s curriculum continued to be modified in Mathematics, Science, Studies of Society and Environment and, particularly, English. Beau attended twice weekly cooking classes and was provided with a program relating to building relationships and appropriate behaviour. From January – May 2008, Beau commenced a specialised three year middle school program which was designed to enable him to complete Grades 9 and 10 over three years instead of two. His curriculum continued to be modified as it had been in Grade 7 – 9 and Beau continued to work with aides on the individualised remedial literacy program.
124 At St Helena in July 2008 Beau was again enrolled in Grade 8, rather than in Grade 9 into which he would normally have progressed, because of a request by Mr Abela. Beau’s curriculum in English, Mathematics, Art and Visual Communication, Information Processing, Physical Education and Systems Technology Automotive was modified to take into account his special needs. He also undertook remedial literacy and numeracy programs. Beau was provided with these same facilities during the following year and also attended a reading group with four other students.
125 There can, in my view, be no doubt that Beau’s teachers, at each level, were acutely conscious of his disabilities and the impact of those disabilities on his capacity to learn. As a result both the content of the curriculum provided for him and the manner of its delivery were modified in material respects. It is simply not correct to claim that Beau was not provided with a modified curriculum. He was taught in a manner which accommodated those negative manifestations of his disabilities which affected his capacity to learn. Nor is it correct to claim that the modifications which were made were not informed by advice from persons with appropriate professional qualifications.
126 The gravamen of Beau’s complaint is that the curriculum provided to him at each stage of his education and the manner of its delivery was not, in the opinion of his advisers, provided at the best possible standard. The remedy for such alleged shortcomings, if there be one, lies outside the scope of the DDA.
Individual Education Plans
127 Beau next submitted that he was required to access his education without any individual education plan developed in consultation with persons who were expert in dealing with those suffering from disabilities of the kind from which he suffered.
128 The Department submitted that, at no stage throughout Beau’s education, was he required to access his education without individual education plans or without strategies that had been tailored to cater for his needs.
129 Mr Allison, the principal of Panton Hill gave evidence, which I accept, that, at all stages, Beau’s teachers at that school had formal or informal education plans for him. Ms Towan gave evidence that a working plan was used and adjusted on a daily basis. Mr Abela agreed in cross examination that Panton Hill “set learning goals” for Beau.
130 At Eltham, a support group was established soon after Beau enrolled at the school. It included the school’s Integration Coordinator, Student Welfare Coordinator, Assistant Principal, a Senior Disability and Student Welfare Officer and Mr Abela. The principal, Mr Sicari, gave evidence that the purpose of the group was to consider Beau’s learning needs and how best to address them. Beau’s progress was monitored and the support measures in place were adjusted as required. The “disability and integration team” at the school met weekly during term time to discuss the progress of disabled students including Beau. Two of the integration aides employed by the school gave evidence that Beau’s needs and progress were discussed weekly in this formal setting but also informally on a daily basis.
131 The principal, of St Helena, Ms Thomson, gave evidence that, during Beau’s time at the school, structured planning was involved, beginning as soon as his enrolment was confirmed. An individual education plan was formulated and then refined in 2009. The individual education plan emphasised literacy and numeracy. It also focused upon socialisation and welfare measures because it was considered that Beau required particular assistance in these areas. Program support group meetings were held regularly to monitor Beau’s progress, adjust his curriculum where necessary and plan for the future.
132 I do not accept that Beau pursued his studies without the benefit of an individual education plan. The evidence makes clear that plans were developed, on an ongoing basis, to cater for Beau’s needs. These plans were formulated and adjusted on both a formal and informal basis.
Speech/Language Therapy and an Individual Program of a Speech Pathologist
133 Beau also claimed that he was required to access his education without “speech/language” therapy. It was contended that he required ongoing speech therapy by a speech pathologist and that a speech pathologist should have developed an individual program for Beau which the school should have implemented.
134 Beau did not receive speech therapy at all times during his education. He received speech therapy for a time at Panton Hill in 2003. At Eltham Professor McCusker was engaged to deliver an education and literary skills program to Beau from May 2007 – May 2008. His recommendations were implemented by staff and he expressed the view that they had done so effectively and to Beau’s benefit. Professor McCusker later advised St Helena that no further speech therapy was required.
135 The evidence established that, when it was advised that it was necessary to do so, the Department provided speech/language therapy for Beau. It did not require him to undertake his education without such services.
136 Having regard to these findings it is not necessary for me to deal with the remaining elements of the definition of indirect discrimination in s 6 of the DDA.
COMPLIANCE WITH SECTIONS 3, 5, 6 AND 7 OF THE DISABILITY STANDARDS
137 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 formulated and published such standards in 2005. They are entitled the Disability Standards for Education 2005 (“the Disability Standards”). As already noted 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.
138 Relevantly, the standards provided:
“Part 3 Making reasonable adjustments
This Part sets 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).
For this Part:
student includes a prospective student.
For these Standards, each of the following is an adjustment:
(a) a measure or action (or a group of measures or actions) taken by an education provider that has the effect of assisting a student with a disability:
(i) in relation to an admission or enrolment — to apply for the admission or enrolment; and
(ii) in relation to a course or program — to participate in the course or program; and
(iii) in relation to facilities or services — to use the facilities or services;
on the same basis as a student without a disability, and includes an aid, a facility, or a service that the student requires because of his or her disability;
(b) an adjustment mentioned in subsection 7.2 (4);
(c) if a change is made to an adjustment mentioned in paragraph (a) or (b) — the adjustment as affected by the change.
(1) For these Standards, an adjustment is reasonable in relation to a student with a disability if it balances the interests of all parties affected.
Note Judgements about what is reasonable for a particular student, or a group of students, with a particular disability may change over time.
(2) 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:
(a) the student’s disability;
(b) the views of the student or the student’s associate, given under section 3.5;
(c) the effect of the adjustment on the student, including the effect on the student’s:
(i) ability to achieve learning outcomes; and
(ii) ability to participate in courses or programs; and
(iii) independence;
(d) the effect of the proposed adjustment on anyone else affected, including the education provider, staff and other students;
(e) the costs and benefits of making the adjustment.
Note A detailed assessment, which might include an independent expert assessment, may be required in order to determine what adjustments are necessary for a student. The type and extent of the adjustments may vary depending on the individual requirements of the student and other relevant circumstances. Multiple adjustments may be required and may include multiple activities. Adjustments may not be required for a student with a disability in some circumstances.
The Standards generally require providers to make reasonable adjustments where necessary. There is no requirement to make unreasonable adjustments. In addition, section 10.2 provides that it is not unlawful for an education provider to fail to comply with a requirement of these Standards if, and to the extent that, compliance would impose unjustifiable hardship on the provider. The concept of unreasonable adjustment is different to the concept of unjustifiable hardship on the provider. In determining whether an adjustment is reasonable the factors in subsection 3.4 (2) are considered, including any effect of the proposed adjustment on anyone else affected, including the education provider, staff and other students, and the costs and benefits of making the adjustment. The specific concept of unjustifiable hardship is not considered. It is only when it has been determined that the adjustment is reasonable that it is necessary to go on and consider, if relevant, whether this would none-the-less impose the specific concept of unjustifiable hardship on the provider.
(3) In assessing whether an adjustment to the course of the course or program in which the student is enrolled, or proposes to be enrolled, is reasonable, the provider is entitled to maintain the academic requirements of the course or program, and other requirements or components that are inherent in or essential to its nature.
Note In providing for students with disabilities, a provider may continue to ensure the integrity of its courses or programs and assessment requirements and processes, so that those on whom it confers an award can present themselves as having the appropriate knowledge, experience and expertise implicit in the holding of that particular award.
Before the education provider makes an adjustment for the student, the education provider must consult the student, or an associate of the student, about:
(a) whether the adjustment is reasonable; and
(b) 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) (b) or 7.2 (6) (b) in relation to the student; and
(c) whether there is any other reasonable adjustment that would be less disruptive and intrusive and no less beneficial for the student.
3.6 Deciding on an adjustment to be made
In deciding whether to make a particular reasonable adjustment for a student, the education provider must:
(a) assess whether there is any other reasonable adjustment that would be less disruptive and intrusive and no less beneficial for the student; and
(b) assess whether the adjustment may need to be changed over the period of a student’s education or training.
3.7 Adjustments to be provided in reasonable time
(1) The education provider must take reasonable steps to ensure that any adjustment required to be made is made within a reasonable time.
(2) Whether the time is reasonable depends, in particular, on whether and when the student, or his or her associate, has provided:
(a) in a timely way, any relevant information in the possession of the student or associate about how the disability affects the student in relation to education or training; and
(b) the student’s or the associate’s opinion about the matters mentioned in paragraphs 3.5 (a), (b) and (c).
Note The requirement for a provider to consult a student with a disability, or an associate of the student, about how the disability affects the student in relation to education or training is set out in paragraphs 4.2 (3) (a), 5.2 (2) (a), 6.2 (2) (a), 7.2 (5) (a) and 7.2 (6) (a).
3.8 Relation to premises standards
…
Part 4 Standards for enrolment
This Part applies in relation to:
(a) an individual with a disability who is a prospective student for an educational institution; and
(b) an education provider that is:
(i) the educational institution mentioned in paragraph (a); or
(ii) an educational authority that administers the educational institution.
Rights given by this Part
The effect of the following standards is to give prospective students with disabilities the right to enrol in an educational institution on the same basis as prospective students without disabilities, including the right to reasonable adjustments that are necessary to ensure that they are able to so enrol on the same basis as prospective students without disabilities.
(1) The education provider must take reasonable steps 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 without experiencing discrimination.
(2) The provider must ensure that, in making the decision whether or not to offer the prospective student a place in the institution, or in a particular course or program applied for by the prospective student, the prospective student is treated on the same basis as a prospective student without a disability, and without experiencing discrimination.
(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.
(4) For this section, the provider has taken reasonable steps to comply with subsection (1) if the provider has complied with subsection (3).
Note See Part 10 for exceptions to the legal obligations set out in the standards. These include a provision that it is not unlawful for a provider to fail to comply with a standard if, and to the extent that, compliance would impose unjustifiable hardship on the provider (section 10.2).
4.3 Measures for compliance with standards
Measures that the education provider may implement to enable the prospective student to seek admission to, or apply for enrolment in, the institution on the same basis as a prospective student without a disability include measures ensuring that:
(a) information about the enrolment processes:
(i) addresses the needs of students with disabilities; and
(ii) is accessible to the student and his or her associates; and
(iii) is made available in a range of formats depending on the resources and purposes of the provider and within a reasonable timeframe; and
(b) enrolment procedures are designed so that the student, or an associate of the student, can complete them without undue difficulty; and
(c) information about entry requirements, the choice of courses or programs, progression through those courses or programs and the educational settings for those courses or programs is accessible to the student and his or her associates in a way that enables the student, or associates, to make informed choices.
Part 5 Standards for participation
This Part applies in relation to:
(a) a student with a disability who is enrolled in an educational institution; and
(b) an education provider that is:
(i) the educational institution mentioned in paragraph (a); or
(ii) an educational authority that administers the educational institution.
Rights given by this Part
The effect of the following standards is to give students with disabilities the right to participate in the courses or programs, and to use services and facilities, provided by an educational institution, on the same basis as students without disabilities, including the right to reasonable adjustments, where necessary, to ensure they are able to participate in education and training, on the same basis as students without disabilities.
5.2 Participation standards
(1) The education provider must take reasonable steps 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 without experiencing discrimination.
(2) 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 the courses or programs for which the student is enrolled and use the facilities or services provided by the provider; and
(b) 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
(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.
(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.
(4) For this section, the provider has taken reasonable steps to comply with subsection (1) if the provider has complied with subsections (2) and (3).
Note See Part 10 for exceptions to the legal obligations set out in the standards. These include a provision that it is not unlawful for a provider to fail to comply with a standard if, and to the extent that, compliance would impose unjustifiable hardship on the provider (section 10.2).
5.3 Measures for compliance with standards
Measures that the education provider may implement to enable the student to participate in the course or program for which the student is enrolled and use the facilities and services provided by it on the same basis as a student without a disability, include measures ensuring that:
(a) the course or program activities are sufficiently flexible for the student to be able to participate in them; and
(b) course or program requirements are reviewed, in the light of information provided by the student, or an associate of the student, to include activities in which the student is able to participate; and
(c) appropriate programs necessary to enable participation by the student are negotiated, agreed and implemented; and
(d) additional support is provided to the student where necessary, to assist him or her to achieve intended learning outcomes; and
(e) where a course or program necessarily includes an activity in which the student cannot participate, the student is offered an activity that constitutes a reasonable substitute within the context of the overall aims of the course or program; and
(f) any activities that are not conducted in classrooms, and associated extra-curricular activities or activities that are part of the broader educational program, are designed to include the student.
Part 6 Standards for curriculum development, accreditation and delivery
This Part applies if:
(a) a course or program is designed by an education provider; and
(b) (whether the course or program is offered to students by that provider, or by another) either:
(i) a student with a disability is undertaking the course or program; or
(ii) the provider has a reasonable expectation that students with disabilities may undertake the course or program.
Rights given by this Part
The effect of the following standards is to give students with disabilities the right to participate in educational courses or programs that are designed to develop their skills, knowledge and understanding, including relevant supplementary programs, on the same basis as students without disabilities.
6.2 Standards for curriculum development and accreditation and delivery
(1) The education provider must take reasonable steps to ensure that the course or program is designed in such a way that the student is, or any student with a disability is, able to participate in the learning experiences (including the assessment and certification requirements) of the course or program, and any relevant supplementary course or program, on the same basis as a student without a disability, and without experiencing discrimination.
(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.
(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.
(4) For this section, in relation to a student enrolled in a course or program, the provider has taken reasonable steps to comply with subsection (1) if the provider has complied with subsections (2) and (3).
Note See Part 10 for exceptions to the legal obligations set out in the standards. These include a provision that it is not unlawful for a provider to fail to comply with a standard if, and to the extent that, compliance would impose unjustifiable hardship on the provider (section 10.2).
6.3 Measures for compliance with standards
Measures that the education provider may implement to enable the student to participate in the learning experiences (including the assessment and certification requirements) of the course or program, and any relevant supplementary course or program, on the same basis as a student without a disability, include measures ensuring that:
(a) the curriculum, teaching materials, and the assessment and certification requirements for the course or program are appropriate to the needs of the student and accessible to him or her; and
(b) the course or program delivery modes and learning activities take account of intended educational outcomes and the learning capacities and needs of the student; and
(c) the course or program study materials are made available in a format that is appropriate for the student and, where conversion of materials into alternative accessible formats is required, the student is not disadvantaged by the time taken for conversion; and
(d) the teaching and delivery strategies for the course or program are adjusted to meet the learning needs of the student and address any disadvantage in the student’s learning resulting from his or her disability, including through the provision of additional support, such as bridging or enabling courses, or the development of disability-specific skills; and
(e) any activities that are not conducted in a classroom, such as field trips, industry site visits and work placements, or activities that are part of the broader course or educational program of which the course or program is a part, are designed to include the student; and
(f) the assessment procedures and methodologies for the course or program are adapted to enable the student to demonstrate the knowledge, skills or competencies being assessed.
Part 7 Standards for student support services
This Part applies in relation to:
(a) a student with a disability who is enrolled in an educational institution; and
(b) an education provider that is:
(i) the educational institution mentioned in paragraph (a); or
(ii) an educational authority that administers the educational institution.
Rights given by this Part
The effect of the following standards is to give students with disabilities rights in relation to student support services provided by educational authorities and institutions, on the same basis as students without disabilities.
The standards also give students with disabilities rights in relation to specialised services needed for them to participate in the educational activities for which they are enrolled. These services include specialist expertise, personal educational support or support for personal and medical care, without which some students with disabilities would not be able to access education and training.
7.2 Standards for support services
(1) The education provider must 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, and without experiencing discrimination.
(2) If a specialised support service is necessary for the student to be able to participate in the activities for which he or she is enrolled, and is of a kind that is provided by the education provider, the provider must take reasonable steps to ensure that the student has access to the service (but may arrange for it to be provided by another person or agency).
(3) If a specialised support service is necessary for the student to be able to participate in the activities for which he or she is enrolled, and is of a kind that is not provided by the provider, the provider must take reasonable steps to facilitate the provision of the service to the student by another person or agency.
(4) Each of:
(a) the provision of access to specialised support services mentioned in subsection (2); and
(b) the facilitation by the provider of the provision of specialised support services mentioned in subsection (3);
is an adjustment for the purposes of these Standards.
(5) The provider must:
(a) consult the student, or an associate of the student, about whether the disability affects the student’s ability to access support services used by the students of the institution; and
(b) in the light of that consultation, decide whether an adjustment is necessary to ensure that the student is able to access those support services on the same basis as a 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.
(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 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 subsections (5) and (6) as necessary to allow for the changing needs of the student over time.
(8) For this section:
(a) the provider has taken reasonable steps to comply with subsection (1) if the provider has complied with subsection (5) and with subsection (7) as it relates to subsection (5); and
(b) the provider has taken reasonable steps to comply with subsections (2) and (3) if the provider has complied with subsection (6) and with subsection (7) as it relates to subsection (6).
Note See Part 10 for exceptions to the legal obligations set out in the standards. These include a provision that it is not unlawful for an education provider to fail to comply with a standard if, and to the extent that, compliance would impose unjustifiable hardship on the provider (section 10.2).
7.3 Measures for compliance with standards
Measures that the education provider may implement to ensure that the student is able to access support services used by students in general, on the same basis as a student without a disability, and to ensure his or her access to specialised support services, include measures ensuring that:
(a) staff of education providers are aware of the specialised services available for the student and are provided with information that enables them to assist the student to access the services that the student needs; and
(b) the provision of specialised services for the student, where necessary, is facilitated, including through collaborative arrangements with specialised service providers; and
(c) any necessary specialised equipment is provided to support the student in participating in the course or program; and
(d) appropriately trained support staff, such as specialist teachers, interpreters, note-takers and teacher’s aides, are made available to students with disabilities.
Examples
Examples of the specialised services mentioned in paragraph 7.3 (c) include services in health, personal care and therapy, and services provided by speech therapists, occupational therapists and physiotherapists.
Examples of the specialised equipment mentioned in paragraph 7.3 (d) include adaptive technology and assistive devices.”
139 This aspect of Beau’s case was pleaded in paragraph 10 of his FCSC. It is extremely prolix. It covers over seven pages. It defies adequate summary. It is, therefore, unfortunately necessary to set the paragraph out in full. It reads:
“10. The Respondent has breached Section 32 of the Act, by failing to comply with the Disability Standards for Education formulated under s 31(1)(b) of the Act. Contrary to the standards, the Respondent:
(a) has not made reasonable adjustments for the Applicant;
Particulars
i. Throughout the Applicant’s enrolment at Panton Hill Primary School from 1999 to 2005, he received no funding from the Respondent. He received no Program Support Group meetings, no individual education plan, no speech/language therapy, little one-to-one assistance and no modified curriculum, save that the Applicant at times did less work or easier work than his peers.
ii. In 2006, at Eltham High School, the Applicant continued to be ineligible for funding. He had no Program Support Group meetings, no individual education plan and no speech or language therapy. One-to-one assistance was received in a limited form from an aide allocated to other eligible students with disabilities. He had no modified curriculum, save that the Applicant at times did less work or easier work than his peers.
iii. In Term 4 2006, the Applicant was eligible for approximately $5000 per annum in funding. The Applicant then received a small of amount [sic] assistance through an aide, but did not receive the reasonable adjustments he required.
iv. In Term 1 2007, the Applicant’s annual funding was increased to approximately $11,000 and he continued to receive some assistance from an aide, but did not receive other reasonable adjustments he required.
v. In the second half of 2007, the Applicant’s annual funding was increased to approximately $25,000, and he continued to receive some assistance from an aide, but did not receive the other reasonable adjustments he required. The level of assistance was maintained through to May 2008.
vi. From July 2008 to December 2008, the Applicant attended St Helena Secondary College. The Applicant did not receive the remedial tuition he required, and did not receive any speech/language therapy.
vii. The Respondent has failed in assessing whether the adjustments for the Applicant were reasonable as per part 3.4 (2) of the Disability Standards due to the following circumstances:
(G.1) the Respondent failed to take into account the student’s disability pursuant to part 3.4 (2) (a) in that:
(i) while agents of the Respondent assessed the Applicant, the aims of these assessments were to establish eligibility for the Program for Students with Disabilities, rather than to make professional recommendations that would assist the Applicant.
(ii) The Respondent failed to effectively respond to the Applicant’s diagnosed difficulties and disabilities.
(G.2) the Respondent failed to take into account the views of the Applicant and the Applicant’s Next Friend pursuant to part 3.4 (2) (b) in relation to the adjustments that were required. The views of the Applicant and his Next Friend are referred to in Paragraph 3.
(G.3) The Respondent failed to consider the effect of the adjustments on the Applicant pursuant to Part 3 .4 (2) (c) [sic] including the effect on the Applicant’s:
(i) ability to achieve learning outcomes, in that the Applicant was unable to achieve satisfactory learning outcomes without the adjustments, evidenced by his educational progress.
(ii) ability to participate in courses or programs, in that the Applicant was unable to successfully participate in the courses and programs offered by the Respondent.
(iii) independence, in that:
vii the Applicant is not functionally literate or numerate, and has impaired self-esteem and psychological problems due to his negative schooling experience.
vii staff of the Respondent may not have required the Applicant to be medicated had he received the adjustments he required.
(G.4) The Respondent failed to consider, pursuant to part 3.4 (2) (d) the effect of the proposed adjustments on anyone else, including the education provider, staff and other students.
(i) The proposed adjustments would have assisted the Respondent’s own teaching staff.
(ii) The proposed adjustments would have benefited other students in that:
• prior to the Applicant being eligible for funding, at times he gained assistance from aides who were employed to assist other children with disabilities, to the detriment of those funded students.
• The Applicant’s behaviour in the later years of his education disrupted other students. The Applicant alleges that if he had received the adjustments he required he would not have experienced behavioural problems to the extent that he did, due to his self esteem and academic abilities being higher than was the case.
(G.5) The Respondent failed to consider, pursuant to part 3.4 (2) (e) the costs and benefits of making the adjustment.
(i) the Respondent is the State of Victoria, and hereby able to afford the cost of the reasonable adjustments. The failure to meet this cost during the entire primary school education of the Applicant, has cost implications for the Applicant post Secondary School in that he is functionally illiterate and innumerate and consequently has poor job prospects. It is likely he will need to rely upon State funding in his adult life.
(ii) if the Respondent had made the adjustments, the Applicant may have been able to successfully access tertiary education and become a contributing member of the community.
(H) The Respondent, pursuant to Part 3.5, failed to consult the Applicant’s Next Friend or the Applicant himself, in that the Next Friend made numerous representations as set out in paragraph 3 in relation to gaining adjustments for the Applicant, and was ignored. The Applicant also advised the Respondent that he was having difficulty participating in his education as set out in paragraph 3, and was ignored.
(I) The Respondent, pursuant to Part 3.6, failed to make assessment or analysis of the efficacy of alternative reasonable adjustments, or whether the adjustments or lack thereof were affecting the Applicant’s education.
(J) The Respondent, pursuant to part 3.7(1) and (2), failed to take reasonable steps to ensure that the adjustments the Applicant required were made within a reasonable time:
(i) The Respondent failed to provide any or sufficient funding to the Applicant from 1999 to 2007, thereby not providing him with the adjustments he required, and the Applicant’s education was irretrievable.
(ii) The Respondent received appropriate information in relation to the Applicant’s disabilities and special needs from 2000 onwards in the form of comprehensive reports.
(iii) The Applicant’s Litigation Guardian expressed his concern regarding the Applicant’s education throughout his entire school life.
(iv) The Respondent observed the Applicant to be struggling throughout the Applicant’s entire school life.
(v) The Respondent failed to make the reasonable adjustments required for the Applicant until he met the criteria for the Respondent’s funding program, being the Program for Students with Disabilities. The Respondent failed to make sufficient reasonable adjustments until the Applicant met the higher levels in the criteria for the Program for Students with Disabilities.
(b) has breached section 5, in that it has not made reasonable adjustments for the Applicant pursuant to Part 3, which would have allowed the Applicant to participate in his education at the same level as his peers;
Particulars
i. The Applicant’s peers were able to successfully participate in the education provided by the Respondent, as they did not require the adjustments the Applicant did. The Applicant, as a result of not being provided with the adjustments he required, was unable to learn and achieve his full educational potential, while generally his peers did so. This occurred in all years relevant to the claim. As the Applicant fell further behind the academic level of his peers, his ability to participate in his classroom year level without the adjustments became greater.
ii The Respondent failed to take reasonable steps pursuant to Part 5.2 (1) to ensure the Applicant was able to participate in the courses and programs provided.
iii The Respondent failed to consult the Next Friend pursuant to part 5.2 (2) as to whether the Applicant’s disabilities affected his ability to participate in the courses, programs and services in that the Next Friend requested reasonable adjustments be made for the Applicant as referred to in paragraph 3, and he was ignored.
iv. The Respondent failed to make decisions in relation to reasonable adjustments in accordance with part 3, pursuant to part 5.2 (2) (b) and (c).
(c) has breached section 6, in that it has not made reasonable adjustments for the Applicant pursuant to Part 3 by developing an accessible curriculum for the Applicant;
Particulars
Throughout the Applicant’s enrolment at Panton Hill Primary School from 1999 to 2005, he had no modified curriculum save that he was given less work and/or easier work than his peers. The Applicant’s inability to access the curriculum is evidenced by his almost complete lack of academic progress throughout primary school, as follows:
i. From 2006 to in or about May 2009, the Applicant had no modified curriculum save that he was given less work and/or easier work than his peers, and save for the period of time the Applicant was enrolled at Coburg Teaching Unit.
ii. In or about May 2009 onwards the Applicant received a modified remedial literacy program a number of hours per week these being the Direct Instruction Programs.
iii. The Respondent has failed to take reasonable steps to ensure that the education was designed in such a way that the Applicant was not able to participate in the learning experiences on the same basis as a student without a disability, and without experiencing discrimination, pursuant to part 6.2 (1).
iv. The Respondent failed to consult the Applicant’s Next Friend in relation to the Applicant’s ability to participate in the learning experience of the education, pursuant to part 6.2 (2) (a), in that the Applicant’s Next Friend asked for reasonable adjustments to be made for the Applicant as set out in paragraph 3, but he was ignored.
v. The Respondent failed to analyse and assess whether reasonable adjustments were required for the Applicant pursuant to part 6.2 (2) (b) (c), and in accordance with Part 3.
(d) has breached section 7, in that it has not made reasonable adjustments for the Applicant pursuant to Part 3, by supporting the Applicant adequately;
Particulars
Throughout the Applicant’s enrolment at Panton Hill Primary School from 1999 to 2005, the Respondent failed to take reasonable steps pursuant to part 7.2 (2) to ensure the Applicant had access to the specialised support services it offers students with disabilities, being Individual Education Plans, Special Education Teacher support, a support, modified curriculum, and language/speech therapy as follows:
i. The Respondent failed to consult the Applicant’s Litigation Guardian in relation to the Applicant’s needs to have access to specialised support services, pursuant to part 7.2 (6), in that the Applicant’s Next Friend asked for support services to be provided to the Applicant as set out in paragraph 3, but was ignored.
ii. The Respondent failed to analyse and assess whether the support services were required for the Applicant pursuant to part 7.2 (6) (b) and (c), and in accordance with Part 3.”
140 The paragraph suffers from many deficiencies. Most obviously is its lack of clarity. It seeks to deal with acts and omissions occurring over a period of some 12 years, including a considerable period during which the Disability Standards were not in operation.
Part 3 of the Disability Standards
141 Under paragraph 10(a) of the FCSC reliance is purportedly placed on the provisions of ss 3.4, 3.5, 3.6 and 3.7 of the Disability Standards. These provisions appear in Part 3. As s 3.1 makes clear nothing in that Part (including the subsections on which reliance is placed) constitute free-standing disability standards for the purposes of ss 31 and 32 of the DDA. What these provisions do is 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.” (emphasis added)
142 The provisions of Part 3 are, therefore, only engaged if one or more of the obligations, imposed on an education provider by ss 4.2, 5.2, 6.2 or 7.2 are attracted by the circumstances of a particular disabled student.
143 As framed, paragraph 10(a) appears, when read with the particulars sub-joined to it, to allege that s 3 of the Disability Standards imposed on the Department an obligation, with which it failed to comply, to make reasonable adjustments for Beau. In so far as may be gleaned from the particulars certain services such as speech and language therapy, one-to-one assistance and a modified curriculum should have been, but were not, provided to Beau either at all or at an unspecified required standard or sufficiency such that the Department contravened provisions of the Part. Part 3 imposed no such obligation on the Department independently of the duties imposed by later Parts of the Standards.
144 No contravention of s 3 of the Disability Standards of the kind alleged has been or could be made out.
145 Paragraphs 10(b), (c) and (d) of the FCSC allege, respectively, that the Department has breached ss 5, 6 and 7 of the Disability Standards. These sections 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 may give rise to a contravention of s 32 of the DDA.
Parts 5 and 6 of the Disability Standards
146 It will be convenient to consider the allegations of contravention of ss 5 and 6 of the Disability Standards together. The drafting of these two provisions follows a similar pattern.
147 In Walker v State of Victoria (2011) 297 ALR 284 at 330-331 I said that:
“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 [it was alleged] 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.”
148 The allegations contained in paragraphs 10(b) and 10(c) are confusing and difficult to relate to the language employed by the draftsman of the Disability Standards. In each case the alleged breach is said to have been occasioned by the failure of the Department to make reasonable adjustments for Beau “pursuant to Part 3”. Had the unspecified reasonable adjustments been made Beau would (it is pleaded) have been able “to participate in his education at the same level as his peers” (para 10(b)) and “an accessible curriculum” would have been developed for him (para 10(c)). Both paragraphs proceed on the fallacious basis that a failure by the Department to make some reasonable adjustment has had a specified consequence with the result that contraventions of ss 5 and 6 occurred. Neither s 5 nor s 6 imposes an obligation on an education provider to make reasonable adjustments to produce a given outcome. What the education provider is bound to do by ss 5.2(1) and 6.2(1) is to take reasonable steps to ensure that the stipulated outcome is achieved. In order to achieve this end the education provider is obliged to do a number of things including, in the light of consultation with appropriate persons, deciding whether some adjustment is necessary to achieve the objective. If it is decided that an adjustment is necessary and a reasonable adjustment can be identified in accordance with Part 3, then and only then is the education provider bound to make that reasonable adjustment.
149 Notwithstanding the state of the pleadings I am prepared to assume, in Beau’s favour, that this part of his case could have been pleaded along the following lines. The Department was bound to take reasonable steps to ensure the outcomes identified in ss 5.2(1) and 6.2(1) were achieved. To this end it was bound to consult Beau and his father about the disabilities which affected Beau’s ability to participate in the educational processes referred to in ss 5.2(2)(a) and 6.2(2)(a). In the course of that consultation Beau or his father would have suggested that one or more of the four adjustments which have been considered in relation to Beau’s indirect discrimination claims, should be made. It was then for the Department to decide whether any such adjustment was necessary in order to achieve the relevant educational objective. If it were determined that an adjustment was necessary and that a reasonable adjustment could be identified then the Department was under an obligation, but failed, to make that reasonable adjustment.
150 In the course of considering Beau’s indirect discrimination claim I have dealt with each of the four areas in which the Department was said to have failed to provide services to accommodate Beau’s needs: see above at [109]-[135]. As the evidence there summarised makes clear, each of the schools attended by Beau made many adjustments to their normal pedagogical processes in order to accommodate Beau’s needs with a view to ensuring that he was able to participate in the courses offered by the school and that the courses were designed in a way that facilitated his participation in them. Many, but not all, of these measures were introduced following discussions with Mr Abela or more formal communications between him and departmental officers. Mr Abela, at times, refused to engage in such consultative processes. Some examples of this consultation or attempts at consultation which occurred after the commencement of operation of the Disability Standards illustrate the point.
151 When Beau commenced at Eltham in 2006 a support group was established for him. Mr Abela was a member of this group. It also included school administrators and specialist teachers. It met regularly to review and discuss Beau’s progress and needs. In May 2006 the support group discussed the potential benefit of placing Beau at the Coburg Teaching Unit for a ten week intensive educational and social skills program. Mr Abela supported the suggestion and consented to the placement. Despite this, when asked if he could drive Beau from the family home in Diamond Creek to Coburg so that Beau did not need to use public transport Mr Abela responded: “If you want him to go to Coburg, you get him to Coburg.”
152 When Beau commenced at Coburg his contact teacher discussed with him various academic and social goals which, it was hoped, Beau could achieve during his time at the Unit. They related to reading, writing, spelling, concentration, organisation and social interaction with teachers and other students. Not long into the course Beau expressed reluctance to go to Coburg. As a result he was permitted to spend two days a week at Eltham on condition that he behaved appropriately on the other three days at Coburg.
153 In August 2006 the support group discussed the possibility of Beau enrolling at a special school. This prospect was raised by a request from Mr Abela that Beau should be helped to develop skills which would enable him to obtain employment and survive in the “real world”. As a result of this discussion Beau and Mr Abela visited the Concord Special School but Beau reacted negatively to that school. They later visited other special schools but Beau insisted that Eltham was the only school for him.
154 At the start of the 2007 academic year Beau did not attend either Eltham or an alternative special school at which he had been enrolled. Mr Abela had supported the alternative enrolment; Beau had resisted it. Mr Sicari arranged a meeting with Mr Abela but Mr Abela did not attend. Beau’s sister Jade told Mr Sicari that “Beau is at home and he’s so upset. Dad won’t let him come to school.” Following some correspondence between the school and Mr Abela, Beau returned to Eltham on 7 March 2007.
155 In June 2007, at a support group meeting attended by Mr Abela, reports were provided about the implementation of the remedial literacy program for Beau which had been recommended by Professor McCusker.
156 At another meeting of the program support group in December 2007, which Mr Abela attended, consideration was given to a number of important matters. They included whether Beau should return (as Mr Abela had suggested) to year 7 or carry on to year 9 on modified programs and take three years to complete years 9 and 10. Mr Abela agreed to this proposal. There was also discussion about Beau’s literacy program for the following year which was to include two periods a day of reading with his aides and the possibility of Mr Abela assisting by hearing Beau read for 10 minutes each night.
157 When Beau transferred to St Helena in the middle of 2008 an enrolment meeting was convened. The meeting was attended by Ms Thomson, Mr Abela, the junior school principal and representatives of the local region. Both Mr Abela and Beau voiced their hopes and expectations relating to Beau’s education at St Helena. It was agreed that Beau would undergo a graduated induction to the school and that he would meet regularly with a visiting school counsellor. The school representatives undertook to obtain information about the reading program devised for Beau by Professor McCusker, to arrange an integration aide to assist Beau and, in other ways, do its best to support him.
158 In July 2008 a support group meeting was held at which both Mr Abela and Beau were present. So too were Ms Thomson and other representatives of the school. The meeting discussed a provisional or preliminary individual learning plan for Beau and his program which incorporated intensive numeracy and literacy instruction and enrolment in a mixed automotive studies group. Mr Abela advised the meeting that he “liked the program”. Mr Abela also requested that the school should communicate with him only through a disability advocate engaged by him. The following month Mr Abela and Beau both advised a support group meeting that they were satisfied with the program devised for Beau.
159 In August 2008 the school produced a document which contained guidance to teachers about how best to address Beau’s educational needs. A copy was provided to Mr Abela and he was invited to comment. He did not do so.
160 A support group meeting was held in November 2008 but Mr Abela did not attend because he had decided to cease contact with the school.
161 Support group meetings for Beau continued during 2009 but Mr Abela and Beau did not attend these meetings. Despite their absence decisions were made relating to the contents and manner of delivery of programs provided for Beau. Those decisions were based on expert advice considered by the group.
162 Having regard to these and other examples of attempts by the schools attended by Beau to engage Beau and his father in consultative processes and the on-going process of adjustment to meet Beau’s needs I would, had the issue been raised on the pleadings, have held that the Department complied with its obligations under ss 5.2(2) and 6.2(2) of the Disability Standards.
163 As a result, even on the notional pleading, no contraventions of ss 5.2 or 6.2 of the Disability Standards could have been made out.
Part 7 of the Disability Standards
164 In paragraph 10(d) of the FCSC it is alleged that a breach of s 7 of the Disability Standards occurred “in that [the Department] has not made reasonable adjustments for [Beau] pursuant to Part 3, by supporting [Beau] adequately.” What I have said about the inadequacies of the case pleaded in paragraphs 10(b) and 10(c) applies with equal force to this allegation. Furthermore, Part 7 of the Disability Standards does not impose on an educational provider an obligation to support a student “adequately”. As s 7.2(1) makes clear, the obligation which falls on a provider 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 …”. [emphasis added].
165 The parts of s 7.2 which are referred to in the particulars sub-joined to paragraph 10(d), appear in sub-section (6). They 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 or external agencies.
166 It was common ground that the Department provided a range of support services to assist students who, like Beau, suffered from disabilities. Beau was offered some of these services and utilised some of them. He has not identified any specialised support service which was available and relevant to his needs which he was not able to use.
167 No contravention of s 7.2 of the Disability Standards has been made out.
DIRECT DISCRIMINATION
168 In paragraph 14 of his FCSC, Beau alleged that, since November 2010, the Department had failed and/or refused to provide him with any education or the re-enrol or accept his enrolment at a school controlled by it. This failure and/or refusal were alleged to constitute direct discrimination under ss 5 and 22 of the DDA.
169 This part of Beau’s case was pleaded in s 17 of the FCSC as follows:
“The failure or refusal specified in paragraph 14 also constitutes discrimination pursuant to Section 22 of the Disability Discrimination Act 1992, and under section 5, in that the Respondent refused to accept the Applicant for enrolment due to his disabilities.
Particulars
The Respondent breached s 5(1) of the Act, by treating the Applicant less favourably that it would treat a person without the Applicant’s disabilities in circumstances that are not materially different, as follows:
(a) Upon enrolling at Collingwood, the Respondent was aware of the Applicant’s need for the assistance set out in paragraph 7 hereof, by reason of the Respondent’s knowledge of the discrimination complaints, meetings with the Applicant’s father and advocate, and the medical reports held by the Respondent;
(b) The Respondent acknowledged, by letter from its agent Ms Hendrickson dated 23 June 2011, that the Applicant displayed inappropriate social skills, which put his enrolment at Collingwood at risk;
(c) The Respondent’s servants and agents at Collingwood did provide some of the assistance required by the Applicant, namely the assistance of an integration aide and one of the remedial programs required by him;
(d) The Respondent’s servants and agents at Collingwood failed to provide a speech/language program designed to address the Applicant’s language disorder;
(e) The Respondent’s servants and agents at Collingwood failed to provide a formal social skills program, or to arrange a behavioural analysis to determine the reasons for any poor behaviour the Applicant exhibited, or to devise a Positive Behaviour Plan;
(f) The assistance requested by the Applicant was requested due to his disabilities.
(g) The Applicant’s limited ability to properly socialise with peers was due to his disabilities, in that:
i. the Applicant is functionally illiterate, and that he has reading and writing skills at a primary school level;
ii. the Applicant has a severe expressive, receptive and pragmatic language disorder which means that he cannot express himself adequately, cannot understand others adequately and does not understand social meaning of language.
(h) The poor social skills and behavioural issues were due to the Applicant’s disabilities, and lack of academic skills.
(i) While failing to provide the reasonable adjustments set out in subparagraphs (e) and (f) hereof [a breach of s 5(2) of the Act], the Respondent asserted, in a letter to the Applicant’s advocate dated 23 June 2011 from its agent Ms Krys Hendrickson, that the Applicant could not return to Collingwood due to the problems the Respondent had failed to address.”
170 These allegations are difficult to understand. The direct discrimination was said to have occurred in and after November 2010. It was constituted by the failure and/or refusal of the Department to provide an education for Beau or to re-enrol or accept his enrolment at one of its schools. The particulars, however, for the most part, concentrate on what are said to be deficiencies in the services provided to Beau, in the earlier part of 2010, during which Beau was enrolled at Collingwood.
171 The relationship between Beau’s experiences as an enrolled student at the school and the later refusal to re-enrol him are, even on his evidence, tenuous. When the documentary record tendered by the Department is taken into account the linkage is all the more fragile.
The Relevant Facts
172 In order to understand the circumstances in which Beau’s application to re-enrol at Collingwood was refused it is necessary to say something about how Beau first came to be enrolled at Collingwood and various events which occurred whilst he was there prior to his withdrawal by Mr Abela in June 2010.
173 After Beau left St Helena in December 2009, a representative of the Northern Metropolitan Region of the Department (“the Region”) spoke with Mr Abela and provided him with the names of at least six schools which might be suitable for Beau and in which he might be enrolled in the 2010 school year.
174 On 11 February 2010, there was a meeting between officers of the Region, Mr Abela and Ms Julie Phillips, a disability advocate who was acting for Beau and Mr Abela. The purpose of the meeting was to discuss enrolment options for Beau and for Mr Abela to explain to the Regional staff what assistance Beau required. Mr Abela outlined Beau’s needs as including: a program with literacy and numeracy components by “direct instruction”; a safe and accepting environment; increased supervision, including before school and at lunch time; and a male teacher’s aide.
175 The Region wrote to Mr Abela on 12 February 2010 confirming the information provided by Mr Abela at the meeting and referring Mr Abela to four other schools, including Collingwood.
176 Mr Abela and Beau subsequently visited Collingwood and, on 1 March 2010, Mr Abela, Ms Phillips and Beau attended an initial enrolment meeting at the school with members of the Region and the school’s Head of Campus, Mr Astley. At the meeting, “direct instruction” literacy and numeracy programs, travel to and from Collingwood, supervision for Beau at break times, teacher’s aides and Collingwood’s expectations of Beau were discussed. A follow up enrolment meeting occurred on 8 March 2010.
177 On 10 March 2010, Mr Abela telephoned Collingwood and said that Beau would not be enrolled at the school as it would be “a waste of time” and that a part-time tutor would be engaged from home instead. About a week later Mr Abela changed his mind and agreed to proceed with the enrolment of Beau at Collingwood.
178 A further enrolment meeting to settle on the terms of enrolment occurred on 24 March 2010. It was agreed that Beau would remain at Collingwood provided that he was attending school, positively engaging in his educational program and meeting Collingwood’s expectations of acceptable behaviour.
179 It was also agreed that it was not in Beau’s interests to commence a TAFE course at that time.
180 On 12 April 2010 Beau commenced at Collingwood and was provided with the following services:
• a full time teacher’s aide;
• supervision by his aide at breaks and lunch times;
• a travel training program;
• an individual learning and behaviour plan; and
• an educational program that included one-to-one instruction with a trained teacher’s aide using “direct instruction”.
181 From the time he commenced at Collingwood, Beau’s behaviour was frequently less than acceptable. He made comments about bashing other children, called a female student a “slut” and, on various occasions, left the campus without permission. At times he refused to work and left school at lunchtime.
182 On 19 May 2010, Mr Abela withdrew Beau from Collingwood after another student jumped on Beau’s back as he walked to school. Mr Abela telephoned Mr Astley and made threatening remarks. After a meeting was held at Collingwood between Beau and the student who had jumped on his back, Beau returned to Collingwood.
183 Beau continued to leave school early without permission, despite directions to remain. Upon receiving a telephone call from Mr Astley about the possible renegotiation of Beau’s hours of attendance, Mr Abela threatened to contact the police and the media.
184 Following this, Beau’s behaviour deteriorated. He exhibited, among other things, a lack of respect for staff and limited willingness to follow directions. Beau threatened to stab someone with a knife if forced to go to cooking class and said that he loved fighting after “chesting” another student. Mr Abela refused to attend a meeting on 18 June 2010 to review Beau’s progress and withdrew Beau from Collingwood on 23 June 2010. Mr Abela said that he was withdrawing Beau because the school was not providing his son with a safe learning environment. This claim related to two incidents which had occurred off school premises in which Beau claimed to have been assaulted or threatened and an incident at the school in which some other students had thrown some orange peel at Beau and threatened him.
185 Due to Beau’s departure, his teaching aide could not remain at the school and he was forced to seek alternative employment.
186 On 30 July 2010 Mr Brooks, an Assistant Regional Director in the Region, wrote to Mr Abela expressing his disappointment at the withdrawal of Beau. He referred to progress made by Beau during the time that he was at Collingwood and maintained that Beau had been provided with a safe learning environment while he was at school. While asserting that parents were ultimately responsible for the safety of their children during their journies to and from school, Mr Brooks recorded that Mr Astley had driven Beau to the station after school and met him in the street as he walked from the station to school in the morning in order to ensure that he wasn’t harassed.
187 In October 2010 there were some e-mail exchanges between Ms Phillips and Mr Astley in which Ms Phillips advised that, if a particular student was no longer at the school, “Beau would be interested in returning to school.” Mr Astley passed the e-mail on to the Regional office.
188 On 5 November 2010 the Regional Director, Mr Wayne Craig, wrote to Ms Phillips. He said that, having regard to the events which had transpired earlier in the year and, in particular, Mr Abela’s lack of co-operation with the school, it was not appropriate for Beau to return to Collingwood. The letter continued:
“The Victorian Government has a responsibility to ensure a place is available in a government school for every child of school age who requires one. The principles of the Department of Education and Early Childhood Development’s student enrolment policy are:
• to provide each child with a place in their designated neighbourhood school;
• to allow parents/guardians not wishing to send their child to the neighbourhood school to select an alternative school in which space is available; and
• wherever practicable, to provide parents/guardians with an opportunity to enrol their child at the same school as that being attended by an older brother or sister who resides at the same address.
If Beau is to return to a school in the Northern Metropolitan Region, discussions will need to take place with the school concerned, so that suitable support structures are in place for him prior to his commencement. Consideration also needs to be given to Beau’s longer term plans to ensure he undertakes a program leading to an appropriate educational pathway such as the Victorian Certificate of Applied Learning or a pre-apprenticeship program at a TAFE institution.”
189 Mr Craig concluded by providing the contact details of one of the Regional managers who was available to provide the Abela family with further information “about schools and settings for Beau and … to discuss options for 2011 …”.
190 Ms Phillips wrote to Mr Craig on 29 November 2010 expressing concern about the lack of progress concerning the provision of an appropriate educational setting for Beau. He responded on 23 December 2010. He explained that the Region had not “had any contact with the Abela family since the middle of the year” and that further information about Beau’s current aspirations was necessary before advice could be provided about a suitable school for Beau. Again, he provided contact details of a Regional officer with whom Mr Abela and Beau could discuss “educational options for Beau.”
191 Ms Phillips replied to Mr Craig’s letter on 27 January 2011. She said that it was “disappointing that parents have to litigate over nearly every problem they have with the Department”. Ms Phillips acknowledged that the Region had “already provided Mr Abela with all the alternatives there are in terms of schooling.” She continued that Mr Abela expected “that wherever Beau attends, that he be safe.” Although she did not say so in terms it was clear enough that Mr Abela was insisting that the only school in which he was prepared to enrol Beau was Collingwood. Mr Craig replied on 25 February 2011. He said that “Mr Abela has the right to enrol … his son in his neighbourhood school, in the same way as other parents in Victoria …. Regional officers are willing to facilitate Beau’s enrolment at a government school, if required, if you or Mr Abela could indicate the school(s) in which you are interested”.
192 Mr Abela did not take up this offer. On 12 April 2011 Ms Phillips wrote to Ms Hendrickson. She said that Beau was “illiterate and innumerate and has been sitting at home now for almost one year doing absolutely nothing.” She asserted that Collingwood did not have a problem with re-enrolling Beau and asked why the Region was not prepared to sanction his enrolment at Collingwood. She said “urgent assistance” was needed to help Beau.
193 At some stage, early in June 2011, Regional officers attempted to arrange a meeting with Mr Abela in order to find a suitable school for Beau. The meeting was scheduled for 14 June 2011. Mr Abela attended the meeting venue but left following a disagreement.
194 On the following day Mr Abela wrote to Mr Craig advising that the meeting had not gone ahead because Mr Brooks had proposed to attend and Mr Abela found this to be objectionable. Mr Abela insisted that he had only agreed to attend a meeting with “two female Departmental staff.” Mr Abela proposed that the meeting should convene on 20 June 2011 “with only the two female staff, me and my Advocate attending …”
195 The proposed meeting was held on 20 June 2011 and attended by two female employees of the Department, Mr Abela, Beau and Ms Phillips. Beau expressed interest in several career pathways, but Mr Abela did not wish to discuss these options and sought to focus upon literacy development. The meeting was terminated by Mr Abela after 20 minutes.
196 On 23 June 2011 Ms Hendrickson signed a letter which responded to Ms Phillips’ letter of 12 April 2011. The long delay was unexplained. In the letter Ms Hendrickson reviewed Beau’s conduct at Collingwood during 2010. This had led to the conclusion that “Beau’s evident dissatisfaction with his placement at Collingwood and his disruptive and disrespectful behaviour undermined the dynamics of the school setting at Collingwood …” She recorded that:
“Mr Abela’s support and cooperation was critical to achieving successful outcomes for Beau. By the end of Beau’s time at Collingwood, this support and cooperation of Mr Abela was non-existent.”
197 Ms Hendrickson also expressed concern about the potential waste of resources which would occur were Beau to return and a personalised program established for him only then to see him again withdrawn from the school. Ms Hendrickson also said that it had “been Collingwood’s practice for approximately the last ten years not to re-enrol students who have previously chosen to leave Collingwood, given the lack of success of such re-enrolments in the past.” She was not persuaded that a case had been made to depart from this practice to accommodate Beau. She concluded:
“Collingwood does not consider that there is any realistic prospect of a successful return for Beau at Collingwood. Collingwood is of the view that an alternative educational option would be in Beau’s best interests.”
198 In her oral evidence Ms Hendrickson agreed that she did not have personal knowledge of the events which were referred to in her letter and which underpinned the decision to refuse Mr Abela’s application to enrol Beau at Collingwood. The terms of her letter had been based on advice received from Mr Astley which was accepted at Regional level.
199 Mr Astley confirmed that the letter accurately reflected the reasons why Collingwood considered that the application should be refused.
Consideration
200 In order for him to establish this part of his case, it was necessary for Beau to demonstrate that the Department failed to re-enrol him at Collingwood (or any other school) “on the ground 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.
201 There must, therefore, be a causal nexus between Beau’s disability and the conduct of which he complains. In Purvis v New South Wales (2003) 217 CLR 92, 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].
202 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.
203 It must also be shown that the Department treated Beau 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 upon 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 as 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).
204 Despite the later amendment of s 5 by the Disability Discrimination and Other Human Rights Legislation Amendment Act 2008 (Cth) this analysis of the construction of s 5 of the DDA remains apposite. The amendments to s 5(1) did not effect any substantiative changes; they were made to “improve readability”: see Commonwealth, Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008, Explanatory Memorandum (2008) at 7. The introduction of a new s 5(2) to pick up a failure by a service provider to make reasonable adjustments to accommodate the needs of a disabled person were designed to deal with the observation of Gummow, Hayne and Heydon JJ, elsewhere in their reasons in Purvis, that there was “no textual or other basis in [the former] s 5 for saying that a failure to provide [different] accommodation or services [for persons with a disability] would constitute less favourable treatment of the disabled person for the purposes of s 5: see Purvis at 159 [218]. The introduction of the new s 5(2) does, however, raise additional issues for consideration when allegations of direct discrimination are made.
205 When read together paragraphs 14 and 17 of the FCSC make a broad allegation that the Department, in the period between November 2010 and June 2011, refused or failed to provide Beau with any education and to accept his enrolment at any school controlled by it. The complaint, in paragraph 14, that the Department failed to re-enrol Beau, when read with the particulars sub-joined to paragraph 17, suggests a narrower allegation, namely, that the Department discriminated against Beau by refusing Mr Abela’s requests for him to be re-enrolled at Collingwood.
206 This narrower construction of Beau’s direct discrimination complaint is confirmed by the state of the evidence. No evidence was called by him to establish that he had made any applications to attend any other schools during the relevant period.
207 The broad allegation may immediately be dismissed. There was no evidence that the Department had refused to enrol Beau in any school (other than Collingwood) conducted by it. Moreover, it did not fail to provide Beau with an education during the relevant period on the ground of his disabilities. The Department was unable to provide Beau with an education (other, perhaps, than at Collingwood) because Mr Abela refused to allow him to attend school. It must also be borne in mind that the Department had sought, repeatedly, to persuade Mr Abela to enrol Beau at other schools and had offered, should he wish it, to assist him to do so. These offers were met by silence and inaction on the part of Mr Abela.
208 There was, however, a refusal by the Department, on a number of occasions, to re-enrol Beau at Collingwood. It is, therefore, necessary to determine whether this refusal was on the ground of his disabilities.
209 As Purvis makes clear a distinction must be drawn, in this context, between a student’s disabilities and the manifestations of those disabilities. The Department was not prepared to re-enrol Beau at Collingwood because of his misbehaviour during his time at Collingwood and the impact that that misconduct had had on the operation of the school. It was also concerned about Mr Abela’s failure to support and co-operate with the school and the school’s experience that re-enrolments in similar circumstances had not been successful. These were the reasons given by Mr Astley and Ms Hendrickson to Ms Phillips for the decision not to accede to Mr Abela’s request that Beau be re-enrolled at Collingwood. I accept that they were the “real” reasons for the refusal. The fact that Beau’s disabilities may have contributed to or explained his misconduct at Collingwood, does not mean that the Department’s decision was made on the ground of any of those disabilities.
210 Beau may also be understood to have pleaded that a contravention of s 5(1) of the DDA had occurred between November 2010 and June 2011 because the Department had failed to provide him with reasonable adjustments during the period he attended at Collingwood. The reasonable adjustments were said to be the provision of a “formal social skills program, or to arrange a behavioural analysis to determine the reasons for any poor behaviour” exhibited by Beau or “to devise a Positive Behaviour Plan.” The substance of the allegation thus seems to be that, because the Department had not provided Beau with the nominated services whilst he was at Collingwood, he had engaged in the conduct which was relied on by the Department in refusing to sanction his re-enrolment at the school.
211 These contentions suffer from manifest difficulties. Even if it be assumed that the provision of such services would have constituted reasonable adjustments during the time Beau was attending at Collingwood, there was no evidence which established that it was likely that any one of them or all of them would have had any material effect on Beau’s conduct. In any event the discrimination alleged was the refusal by the Department to re-enrol Beau between November 2010 and June 2011. It was, therefore, necessary for Beau to point to reasonable adjustments which should have been but were not made for him during that period. Furthermore, paragraphs (a) and (b) of s 5(2) of the DDA are conjunctive. No attempt was made in the FCSC to deal with the issues raised by s 5(2)(b): it must be shown that the failure to make any reasonable adjustments identified by Beau had or would have had the effect that Beau was treated less favourably than a person without his disabilities would have been treated in circumstances that were not materially different, because of his disability.
212 No case of direct discrimination under s 6 of the DDA has been established.
COMPLIANCE WITH SECTION 4 OF THE DISABILITY STANDARDS
213 As already noted, in paragraph 14 of his FCSC, Beau alleged that, since November 2010, the Department had failed and/or refused to provide him with any education or to re-enrol or accept his enrolment at a school controlled by it. By paragraph 18 he alleged that this conduct was “discriminatory pursuant to the Disability Standards … Part 4 [4.2(1), 4.2(2) and 4.2.(3)].”
214 Section 4 of the Disability Standards follows a similar pattern to ss 5 and 6 which have been discussed earlier in these reasons. Section 4.2(1) provides that an education provider must take reasonable steps to ensure that an aspiring student is able to seek admission to, or apply for enrolment in, a school on the same basis as prospective students without a disability and without experiencing discrimination. Section 4.2(2) imposes a similar obligation on the provider when the provider is deciding whether or not to offer a place to the prospective student. The provider is not obliged to enrol the student in a school of the student’s choosing. Nor does the Standard confer on a student a right to admission to a particular school. Section 4.2(3), like ss 5.2(2) and 6.2(2), provides for a process of consultation, consideration and adjustment in order that the requirements of ss 4.2(1) and (2) are met.
215 Mr Abela applied to re-enrol Beau at Collingwood in October 2010. That application was ultimately refused in June 2011 after a meeting had been convened and extensive correspondence had passed between Ms Phillips and Mr Abela and the Department. This process has been outlined in the course of dealing with Beau’s allegation of direct discrimination: see above at [172]-[199].
216 At no stage in this process did the Department refuse to enrol Beau in a school (other than Collingwood) under its control. On the contrary, Mr Abela was advised in writing that he had a right to enrol Beau in a neighbourhood school “in the same way as other parents in Victoria.” He was also told that Department officers were willing to facilitate Beau’s enrolment at a government school. Mr Abela was invited to nominate any schools in which he may have been interested in enrolling Beau.
217 The Department made a number of attempts to facilitate meetings to discuss Beau’s future enrolment. At times Mr Abela failed to accept or declined offers to meet with Departmental officers. The Department went to considerable lengths to facilitate a meeting between its officers and Mr Abela. To this end it was prepared to accede to demands made by him as to the gender of the officers who would attend a meeting. When the meeting eventually took place it lasted only 20 minutes because Mr Abela decided to leave.
218 In my view the meeting and the exchanges of correspondence which occurred between October 2010 and June 2011 formed part of a consultative process of the kind contemplated by s 4.2(3). Furthermore the Department suggested a range of alternative schools that might have been able to accommodate Beau’s needs. Enrolment in one of these schools would, in the circumstances, have been a reasonable adjustment. Mr Abela was unwilling to contemplate such alternatives and, in the absence of an application by him to enrol Beau in an alternative school, the Department was unable to take the matter any further.
219 No contravention of s 4 of the Disability Standards has been made out.
THE DEPARTMENT’S DEFENCES
220 Having regard to the findings I have made in relation to other issues, it is not necessary that I deal with the Department’s defences.
DISPOSITiON
221 The application must be dismissed with costs.
I certify that the preceding two hundred and twenty-one (221) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. |
Associate:
