Alex Purvis on behalf of Daniel Hoggan v The State of New South Wales

IN THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

DISABILITY DISCRIMINATION ACT 1992

GRAEME INNES AM

No. H 98/127

Number of pages - 5

HEARING DATES:        24 -27 May, 2-6 August 1999 to date

DATE OF DECISION:        3 August 1999

DATE OF WRITTEN REASONS:       21 September 1999

PLACE:        GRAFTON

#DATE 03:08:1999

Appearances

Ms Kate Eastman of counsel instructed by Ms Sally Bryant of Legal Aid, for the Complainant.

Ms Chris Ronalds of counsel instructed by Ms Mimi Barbaro of the Crown Solicitor's Office, for the Respondent.

Order

See 4. Directions

GRAEME INNES

1.       INTRODUCTION

This is an interim decision relating to an application made by the respondent in this matter for dismissal of this complaint under section 100(d) of the Disability Discrimination Act 1992 (Cth) ("DDA"). The complaint of discrimination is made by Mr Purvis, on behalf of his son Daniel Hoggan, alleging discrimination on the ground of his disability following a series of events which occurred in 1997 at South Grafton High School which lead to Daniel's exclusion from the school.

2.       BACKGROUND

The application was made following some 5 days of hearing. It is based on a proposed set of arrangements for Daniel Hoggan to attend Grafton High School, not South Grafton High School as sought in his complaint ("the proposed arrangements"). The proposed arrangements provide firstly for the assessment of Daniel, then his attendance on a part-time and then a full-time basis. The attendance would be in the Support Unit at Grafton High School, with integration into the mainstream as appropriate, to be determined after broad consultation (including with Mr and Mrs Purvis), by the Principal of Grafton High School.

In summary, the respondent argues that I should dismiss the complaint under section 100(d) of the Act because of:

1.       the length and complexity of the proceedings;

2.       the relevance of some of the evidence being led;

3.       the legal, financial and human costs of the proceedings; and

4.       the fact that for Daniel to not be attending school is not in his best educational interests.

3.       RELEVANT LEGISLATIVE PROVISIONS

The relevant provision of the DDA is section 100, which provides as follows:

The Commission may, at any stage of an inquiry, dismiss a complaint if:

       (a) the Commission thinks that a complaint is trivial, vexatious, misconceived or lacking in substance; or

       (b) the Commission is satisfied that the complaint relates to an act that is not unlawful under a provision of Part 2; or

       (c) in a case where some other remedy has been sought in relation to the subject matter of the complaint--the Commission thinks that the subject matter of the complaint has been adequately dealt with; or

       (d) the Commission thinks that some other more appropriate remedy in relation to the subject matter of a complaint is reasonably available to the person aggrieved by the act; or

       (e) in a case where the subject matter of the complaint has already been dealt with by the Commission or by another statutory authority--the Commission thinks the subject matter of the complaint has been adequately dealt with; or

       (f) the Commission thinks that the subject matter of the complaint could be more effectively or conveniently dealt with by another statutory authority.

Section 100 of the DDA provides general dismissal powers to the Commission to be exercised during an inquiry - this is clear despite the wording of the section, as matters at the end of an inquiry are specifically dealt with under section 103. Section 100 lists six possible reasons for dismissal, but it seems to me that, because of their diverse nature, they are only linked by the fact that they all relate to dismissal. I do not accept that the paragraphs can be "grouped" in any other way. All of the powers in the section relate to dismissal or termination of complaints, and so they must all be dealt with very carefully. For many years people with disabilities have had decisions imposed or forced upon them. The objects of this legislation provide for people with disabilities to be able to challenge actions, which they perceive to be discriminatory, and obtain some redress. To terminate this process pursuant to section 100(d) is therefore a matter which must be very carefully considered - it would be totally against the spirit of the DDA to use this section in an interventionist or directive manner without very persuasive reason.

I accept the submissions of the complainant that many of the matters raised by the respondent are more appropriately dealt with by section 98 of the DDA which deals with the procedure of the Commission, including evidence, lack of formality and technicality, reduction of costs and delay, and the doing of justice.

I view the first three items listed above as reasons for the respondent's application (the length and complexity of proceedings, the relevance of some evidence being led, and the costs of the proceedings) as falling into this category. If the respondent is of the view that some matters could be dealt with more expeditiously, or should not be dealt with at all, then the respondent has the opportunity to make applications in this regard upon which I would rule.

All that I can consider, in determining this application, is the appropriateness of the proposed arrangements as a remedy, in comparison to the remedy being sought by the complainant as set out in the statement of issues filed in this hearing. In very brief terms, the complainant seeks a finding that Daniel's exclusion from South Grafton High School was in breach of the DDA, Daniel's return to South Grafton High School, and compensation.

In order to dismiss the complaint under section 100(d) I must think that some other more appropriate remedy is reasonably available. Clearly the respondent's proposed arrangements are available, and it would give an undertaking to make them available should I dismiss the complaint. What I must therefore assess is whether they are more appropriate than the remedy the complainant seeks to obtain. I agree with the respondent that this must be an objective assessment.

The complainant argued that the proposed arrangements were not an appropriate remedy because they did not acknowledge a wrong, and did not bring the discrimination to an end. Assuming for present purposes that discrimination has occurred, I agree that these are factors which I can take into account when assessing one remedy against the other. However, they do not, on their own, make the proposed arrangements inappropriate. There may be some circumstances where a remedy could be more appropriate, and yet not do either of those things.

The complainant asserted that the respondent's proposed arrangements were vague and uncertain in some areas. The respondent made the same assertion about the relief that the complainant sought in the statement of issues. I agree with both assertions. Any "remedy" in this case has the potential to suffer from these faults because of the complex nature of integrating a child with a disability into mainstream education. This, on its own, is not a reason to find either remedy inappropriate.

The effect of section 100(d) is to bring a complaint to an end. Because the DDA is remedial legislation, designed to have allegations determined, those sections which lead to a termination should be construed narrowly. It would be difficult for me to find that the respondent's proposed arrangements were a more appropriate remedy when I have not heard all the evidence from the complainant. It is made more difficult by the fact that I have no evidence before me at all in regard to Grafton High School, the Support Unit at that school, and the proposed curriculum.

However, I must balance this against the fact that Daniel has not been at school for almost two years and, if the complaint proceeds as forecast, he will not return to school for at least another six months. Whilst I have heard evidence that he is carrying out work from the Distance Education Unit, there is also evidence before me from both that unit and the Department of Community Services that Daniel's educational interests would be best served by him attending school. Of course, time is of the essence in this matter, as Daniel's age-appropriate time at school has already been seriously reduced. I am not here considering the reasons for that reduction - just the fact that it has occurred.

The complainant argued that, unlike the Family Court, it is not my role to consider the "best interests" of the child. While there is no direct statutory mandate for me to consider the best interests of the child, it cannot be a factor that I can completely put aside.

4.       DIRECTIONS

Weighing all the factors I have set out, I am not prepared to accede to the respondent's application. It is my view that section 100(d) must be interpreted relatively narrowly, both because of the remedial and empowering nature of the DDA, and because of the fact that it is one of a list of six possible reasons for dismissal. Further, I must be satisfied that any proposed alternative remedy is "more" appropriate than the one sought.

However, I am very concerned about the fact that Daniel has been out of school for so long. I know that the parties have already made strenuous efforts towards the settlement of this matter. I also know that to move Daniel from one school environment to another is not conducive to his progress. I ask the parties to give serious consideration to the investigation of an interim solution so that Daniel could be assessed and return to a school while the case proceeds.