HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
DISABILITY DISCRIMINATION ACT 1992 (CTH)
Matter No: 98/127
ALEX PURVIS on behalf of DANIEL HOGGAN
THE STATE OF NEW SOUTH WALES (DEPARTMENT OF EDUCATION)
REASONS FOR DECISION OF INQUIRY COMMISSIONER
Date of decision: 13 November 2000
Dates of hearing: 24-27 May, 2-6 August, 6-10 September, 9-10 November
Location of hearing: Grafton
Appearances: Ms Eastman of counsel instructed by Mr Paul Batley and Ms Sally Bryant of the Legal Aid Commission for the complainant.
Ms Chris Ronalds of counsel instructed by Ms Mimi Barbaro of the Crown Solicitors Office, for the respondent.
1. INTRODUCTION 6
2. THE EVIDENCE 7
2.1 Participants and their roles 7
2.1.1 Daniel Hoggan and his family 7
2.1.2 Expert witnesses 8
2.1.3 Staff of Gillwinga Primary School 8
2.1.4 Staff of the School 8
2.1.5 Staff of Grafton High School 9
2.1.6 Other staff of the Department 9
2.1.7 Staff of New South Wales Department of Community Services (DOCS) 10
2.2 Daniel Hoggan's disabilities 10
2.3 Daniel Hoggan's family situation 12
2.4 Daniel Hoggan's previous education 12
2.5 Chronological outline of events 13
2.5.1 Initial enrolment application and initial complaint 13
2.5.2 The second enrolment application 15
2.5.3 Preparations for Daniel's attendance at the School 17
2.5.4 Term 2 1997 20
2.5.5 Term 3 1997 23
2.5.6 Term 4 1997 32
2.5.7 Relevant events of 1998 and 1999 36
2.6 Department and school policies, and policies specifically for Daniel 39
2.6.1 Policies of the Department 39
184.108.40.206 Special Education Policy 39
220.127.116.11 Student Welfare Policy 40
18.104.22.168 Procedures concerning suspension, exclusion and expulsion of students from school and declaration of place vacant ("the Discipline Policy") 40
2.6.2 Policies of the School 41
22.214.171.124 School Discipline Policy 1995 41
2.6.3 Policies specifically for Daniel 42
126.96.36.199 Draft Welfare and Discipline Policy for Daniel 42
2.7 Expert evidence 43
2.7.1 Dr Robert Lincoln Jackson 43
2.7.2 Ms Deborah Knight 44
2.7.3 Mr Alan Andreasen 45
2.7.4 Mr Norman John Lord 47
2.7.5 Ms Carrie Brooks 48
2.7.6 Professor Trevor Parmenter 49
2.7.7 Dr Graham Alan Wise 51
2. 8 Teacher assessments and observations 51
2.8.1 Evaluation sheets 51
2.8.2 Half-yearly reports 52
2.8.3 Mid-term evaluations 52
2.8.4 Distance Education Support Unit Reports 54
2.8.5 Yearly report from school - December 1997 55
3. STATUTORY PROVISIONS 57
4. SUBMISSIONS OF THE PARTIES 58
4.1 Complainant's submissions 58
4.2 Respondent's submissions 61
4.3 Complainant's submissions in reply 69
5. FINDINGS OF FACT 71
5.1 Daniel Hoggan 72
5.2 Identification of the complainant 73
5.3 Respondent is an educational authority 73
5.4 Daniel Hoggan being a student 73
5.5 Daniel's previous education 74
5.6 SGHS knowledge of Daniel's disabilities 74
5.7 Planning for Daniel's enrolment 75
5.8 Daniel's education and participation at SGHS 78
5.9 Daniel's performance in Term 2 81
5.10 Assessment of Daniel 82
5.11 Role of the Teachers Federation 84
5.12 Case management and other meetings 85
5.13 Modification of policies for Daniel 86
5.14 Resourcing 88
5.15 Failure of Daniel's placement at SGHS 89
5.16 Daniel's view of school in 1997 90
5.17 Expert advice 91
5.18 Greater regional involvement 93
5.19 Suspensions 93
5.20 Exclusion 98
5.21 Attitude of participants 102
6. THE LAW 104
6.1 Underlying objectives of the DDA 104
6.2 Daniel's disabilities 108
6.3 Discrimination 110
6.4 Exclusion 117
6.5 Suspensions 121
6.6 Other detriments 121
6.6.1 Failure to properly assess Daniel's needs on admission 121
6.6.2 Failure to provide Daniel with orientation on commencement 121
6.6.3 Failure to implement Principal's recommendations to accommodate Daniel at SGHS 121
6.6.4 Failure to adjust Welfare and Discipline Policy to address Daniel's needs and behavioural patterns 121
6.6.5 Failure to develop guidelines in accordance with the Welfare and Discipline Policy 123
6.6.6 Failure to provide teachers with training or awareness program 123
6.6.7 Failure to obtain assistance of experts in special education or behaviour 124
6.6.8 Failure to assess Daniel between 18 September and 3 December 1997 124
6.6.9 Failure to inform Daniel and the complainant that Daniel had been excluded from school 124
6.6.10 Failure to follow school policy for dealing with excluded students 125
6.6.11 Modifying Discipline and Welfare Policies thus denying the opportunity for Daniel to be dealt with according to applicable school policies 125
7. RELIEF 126
7.1 Introductory Comments 127
7.2 Daniel's return to SGHS 127
7.3 Apology 130
7.4 Damages 130
8. CONCLUSION 135
On 22 March 1998 Mr Alex Purvis lodged a complaint with the Human Rights and Equal Opportunity Commission alleging that his foster-son Daniel Hoggan had been discriminated against in breach of the Disability Discrimination Act (Cth) 1992 ("the Act") by the State of New South Wales, through the New South Wales Department of Education and Training (formerly the New South Wales Department of School Education, referred to in these reasons as "the Department"). The complaint related to Daniel's enrolment at, and subsequent exclusion from, South Grafton High School ("the School or SGHS") in 1997, and the events leading to the exclusion.
The Acting Disability Discrimination Commissioner investigated the complaint, and an attempt to conciliate it was unsuccessful. The complaint was referred to the Commission for hearing on 15 October 1998.
The hearing took place over 16 days in Grafton in 1999, from 24 to 27 May, 2 to 6 August, 6 to 10 September, and 9 to 10 November. The complainant was represented by Ms Eastman of counsel instructed by the Coffs Harbour office of Legal Aid New South Wales, and the respondent was represented by Ms Ronalds of Counsel instructed by the Crown Solicitor's Office New South Wales.
The complainant called eight witnesses and the respondent called nineteen witnesses. Some twelve volumes of exhibits were tendered.
During the hearing the respondent made an application that I should dismiss the complaint pursuant to section 100 of the Act. I refused that application, and provided written reasons for that refusal. Those reasons are published elsewhere, and I will not re-visit that application in this decision.
Daniel Hoggan was born on 8 December 1984 and when he completed Year 6 at Gillwinga Primary School ("Gillwinga") at the end of 1996 he was twelve years old. Had he remained in school he would have been in Year 9 at the time this hearing took place and in Year 10 at the time that this decision was being prepared and brought down. During the hearing I expressed my concern, with which the parties concurred, about the length of time Daniel had not been attending school. I have therefore attempted to comply with the parties' wishes to bring this decision down as quickly as possible. However, volume and complexity have made this difficult.
Daniel Hoggan did not give evidence during the hearing. This was not surprising given the nature of his disabilities, which will be detailed in the next section of this decision. Towards the end of the hearing I indicated that I wished to meet with Daniel on an informal basis with Mr Purvis (the complainant) and Mr Bartley (representing the respondent) present. My hope was to gain a better understanding of the person to whom this complaint relates. I am also aware of the obligations which arise under the UN Convention on the Rights of the Child (CROC) and the High Court's view as expounded in Minister for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273, that Australia's ratification of CROC has given rise to a legitimate expectation that decision makers not violate its provisions. CROC article 3.1 requires that the interests of the child shall be a primary consideration in decisions involving a child. Article 12.1 requires that children be given appropriate involvement in decisions and actions affecting them.
After consideration of the proposal that I meet with Daniel, the complainant indicated through his legal representative that he was not agreeable to this meeting taking place. The respondent was agreeable.
I regard the complainant's decision on this matter as unfortunate, as I believe that it would have been beneficial for me to meet with, and better understand, the person to whom my decision is most central. Whilst the nature of Daniel's disabilities may have meant that my understanding was an imperfect one, I believe that it would have assisted me in the making of what has been a very difficult decision.
2. THE EVIDENCE
2.1 Participants and their roles
The following is a list of people who gave evidence or were referred to during the inquiry, and their role in the process.
2.1.1 Daniel Hoggan and his family
Daniel Hoggan: The aggrieved person. Daniel is a ward of the state and has been in the foster care of Mr and Mrs Purvis since 1988 (part time) and 1989 (full-time)
Mr Alexander Francis Purvis: The complainant on behalf of his foster son Daniel.
Mrs Clemency Purvis: The wife of the complainant and Daniel's foster mother
Ms Christine Hoggan: Daniel's natural mother
Mr Steve Gallagher: Ms Hoggan's fiancée
2.1.2 Expert witnesses
Dr Robert Lincoln Jackson: Director of the Centre for Disability Research and Development, Edith Cowan University, Western Australia
Ms Deborah Ann Knight: Clinical psychologist
Mr Norman John Lord: Registered psychologist
Professor Trevor Reginald Parmenter: Foundation Chair in Development Disability, Faculty of Medicine, University of Sydney and Director, Centre for Development Disability Studies, Royal Rehabilitation Centre, Sydney
Dr Graham Alan Wise: Child neurologist, Sydney Children's Hospital
2.1.3 Staff of Gillwinga Primary School
Mr Stuart James Airlie: Principal
Mr Peter Waldron: Daniel's Year 6 teacher
2.1.4 Staff of the School
Mr Mac Lindsay: Principal (pre December 1996)
Mr Barry Bartley: Principal (post December 1996)
Ms Naomi Court: Support Teacher Learning Difficulties
Ms Lynne Donsworth: School Counsellor; Registered Psychologist
Ms Alison Durant: Humanities teacher
Ms Christine Ebeling: Humanities teacher
Ms Narelle Fernance: Senior School Assistant supervising ancillary staff, including teachers' aides
Ms Margaret Anne Fitzmaurice: English/ Drama teacher, Year 7 Adviser in 1997
Ms Lorraine Gay Laforest: Teachers' Aide Special
Ms Terry-Anne Jerome: Teacher
Mr Colin Lang: Mathematics teacher
Ms Dell McClennan: Teachers' Aide
Ms Elizabeth McMillan: Previously Head Teacher, Student Welfare, and Mathematics teacher
Mr Jeff Miller: Music teacher
Mr Brad Neill: Creative arts teacher
Mr Robert Perl: Head Teacher, Personal Development, Health and Physical Education
Ms Karyn Thompson: Teachers' Aide Special
Mr Norman Aubrey Thomas Trudgett: Science teacher
2.1.5 Staff of Grafton High School
Glen Clark: Head Teacher, Support Unit
Allen Simmons: Principal
2.1.6 Other staff of the Department
Dr Ken Boston: Director-General of School Education
Ms Ilona Bruveris: Special Education Consultant
Mr Ken Callan Leader, Operational Support, Special Education Directorate
Mr Robert Gordon Field: Special Education Consultant, Grafton
Ms Debbie Fisher: Daniel's teacher, Distance Education Support Unit
Mr Peter Garrard: Senior Education Officer (Transition), Special Education Directorate
Mr Ian Hamilton: Director, Distance Education, Open Training & Education Network
Ms Heather Martin: Director, former Special Education Directorate
Ms Jan O'Keefe: Principal, Distance Education Support Unit
Mr Ronald Phillips: District Superintendent Clarence-Coffs Harbour
Mr John Sutton: Assistant Director-General (Primary)
2.1.7 Staff of New South Wales Department of Community Services (DOCS)
Ms Carrie Brookes: Program Officer, Far North Coast
Mr Dennis Myers: Area Manager, Far North Coast
Mr Paul Scahill: Manager, Grafton Office
Ms Kim Whitney: District Officer
2.2 Daniel Hoggan's disabilities
In his statement, Mr Purvis describes Daniel's disabilities as:
"...an intellectual disability which may manifest itself in his behaviour. He also has a visual impairment. His eyes are healthy but the parts of his brain that appreciate what his eyes are seeing have been affected by severe encephalopathic illness which occurred when he was 6 months old. He has epilepsy which is well controlled on his current medications and he has had no seizures for 6 years".
Dr Wise gave evidence as follows:
"Daniel's intellectual disability and his behaviour and his visual difficulties and his epilepsy all result from severe brain injury which he sustained at about seven months of age. The pattern of brain injury that we saw at that time on scans and subsequently, indicated damage to the parieto-occipital lobes on both sides. That's the posterior part of the brain where you receive and integrate visual information but there is also bilateral damage to the frontal lobes. This pattern of damage occurs when a severe illness causes blood supply to the brain to be reduced for a significant length of time. So it's like a stroke which affects that part of the brain which has the least good blood supply at that time and so the intellectual disabilities that Daniel has suffered. The epilepsy which he has suffered, the difficulties with his vision and his difficult behaviour can all be attributed to that serious incident that he had".
In relation to Daniel's visual disability, Dr Wise wrote in a neurology report of Daniel on 3 July 1997:
"His eyes are healthy, he does not require spectacles but the parts of the brain that appreciate what his eyes are seeing have been affected by his illness. He perceives colours well, perceives shapes but not line drawings, is able to read large print held close to his eyes, will pick movements in his fields of vision such that he is able to navigate his way around unfamiliar environments and he is able to ride his bicycle with a reasonable degree of safety..." (Exhibit 6, page 50).
When questioned by counsel for the complainant as to the type of behaviour he would expect Daniel to display because of his disabilities, Dr Wise responded:
"The major part of his difficult behaviour would be disinhibited and uninhibited behaviour. That is, your frontal lobes are very important for you to smooth out emotional ups and downs, to cope with emotional crises in a relatively even way. So he would be likely to have flares of temper which he wouldn't be able to control as well as a child of his age and with this degree of intellectual handicap who did not have those particular frontal lesions".
Mr Lord described the relationship between Daniel's disability and his behaviour in his evidence as follows:
"...Daniel, like a lot of children, a lot of people in his circumstances, has enormous difficulties with communication so that they don't have access to the same ways that we have of communicating. Quite often their behaviour - his behaviour quite often is a way of expressing himself, particularly when he's finding it very difficult and very emotional, so rather - and it may well appear to us to be inappropriate".
Mr Lord continues:
"He acts without a view of consequences or an intent on the behaviour, so he is more prone to strike out, to become - it's probably as a last resort. Initially he may withdraw. As he becomes frustrated he may start talking to himself, he may start sort of using offensive words, to isolate himself or - he may isolate himself and use offensive words - become aggressive and push somebody away, strike out at somebody who is not involved, all as a sense of not being able to articulate what the problem is that he's having with his feelings".
2.3 Daniel Hoggan's family situation
In her first statement (Exhibit 32) Mrs Purvis describes Daniel's family situation:
"7. For the first four years of his life Daniel lived with his natural parents in Glen Innes. Due to his high support needs Daniel was placed with a different carer each day and respite care each alternate weekend.
8. For the first 7 months we shared Daniel with his natural family so that he would spend 1 week with us and then 1 week with his mother. In hindsight, I realise now that that was the worst thing we could have done for Daniel given Dan's need to know his routine and the difficulty he faces coping with change.
9. In May and June 1989 Daniel and I attended the early intervention program in Moree.
10. In July, Daniel returned to his natural family however in November 1989 the family situation broke down again and on 30 November 1989 Daniel was placed with our family on a long term basis after he was made a State Ward. Daniel still has contact with his natural parents, who have now separated. About 3 times a year he spends the weekend with his natural mother in Glen Innes".
Mr and Mrs Purvis have three other children, all older than Daniel. In 1990, when Daniel was five years old, the Purvis family moved from Moree to Grafton.
In a psychological report dated 7 May 1997 (Exhibit 42), Mr Lord wrote:
"Alex and Clemency's children impress as having adopted Daniel as a natural sibling and assist with the care and support for Daniel... Both Alex and Clemency have contributed enormous energies to the care of (sic) support of Daniel".
2.4 Daniel Hoggan's previous education
In 1990 Daniel commenced school in the Support Unit at Grafton Primary School, which he attended for four years.
At the beginning of 1994, Mr and Mrs Purvis decided not to send Daniel back to the Support Unit but to investigate other schools. Daniel did not attend school in 1994 until November, when he commenced for one hour a day for the last five weeks of term at Gillwinga. In 1996 Daniel was enrolled in a Year 5/6 class at Gillwinga and his enrolment was full-time by term 2.
2.5 Chronological outline of events
The following outline of events is based upon the chronology prepared by the respondent in its written submissions, and agreed to by the complainant.
2.5.1 Initial enrolment application and initial complaint
In the second half of 1996, Mr and Mrs Purvis sought to enrol Daniel in Year 7 for 1997 at the School. On 20 June 1996, Mr Lang and Ms McMillan from the school attended a case meeting held at Gillwinga to discuss Daniel's needs and abilities.
On 6 August 1996, Mr Mac Lindsay, then principal of the School met with Mr and Mrs Purvis to discuss Daniel's application for enrolment in Year 7 at the school.
On 14 August 1996, Alex Purvis completed an application for Daniel's enrolment at the School.
On 29 August 1996, Ms O'Keefe and Ms Nicholls from the Distance Education Unit attended a case management meeting at Gillwinga. Also in attendance were Mr and Mrs Purvis, Mr Airlie, Mr Field, Mr Waldron, Ms Thompson and Ms LaForest. Mr Lang and Mr Lindsay apologised for not attending.
On 10 September 1996, Ms Donsworth, Ms McMillan, and Ms Jerome (staff representative) from the School attended Gillwinga to talk to staff about Daniel and to observe Daniel in class. Mrs Purvis states that she had previously requested permission to be present during this visit and that her request was declined. Mrs Purvis happened to be at Gillwinga on that day and she sat in for the science lesson during which Daniel was observed.
In September 1996, Mr Airlie and Mr Waldron met with Mr Lindsay to discuss Daniel. Mr Airlie states in his evidence that this meeting lasted around half an hour and that its focus was to look at what support the School would need to ask for to meet Daniel's needs. Mr Airlie states that he explained to Mr Lindsay how Gillwinga had set up its aide support structure with two aides and Mr Waldron showed Mr Lindsay some examples of Daniel's work.
An Integration Committee was formed at the School to consider Daniel's enrolment. On 19 September 1996, this committee held a meeting at which were present Mr Lindsay, Ms Jerome, Ms McMillan, Ms Donsworth and Mr Huxley. Ms Donsworth, Ms McMillan and Ms Jerome gave a verbal report regarding their visit to Gillwinga. Various issues were discussed and the minutes of the meeting note that the enrolment of Daniel into year 7 at the School in 1997 was not recommended by the Integration Committee.
On 24 September 1996, the Integration Committee prepared a report in relation to Daniel's enrolment.
On 7 November 1996, Mr Lindsay and Ms Donsworth met with Mr and Mrs Purvis. Mr Lindsay listed a range of potential obstacles to Daniel coming to the school, and asked why Mr and Mrs Purvis didn't want to send Daniel to the Support Unit at Grafton High School. Mr and Mrs Purvis explained that Daniel had been in a Support Unit, that they felt his behaviour in particular regressed; that he was in the integrated environment at Gillwinga and that they wished this to continue.
On 11 November 1996, Mr Lindsay wrote to Mr and Mrs Purvis to inform them of his decision to decline Daniel's application for enrolment at the School. This decision was appealed by Mr Purvis to Mr Phillips.
On 28 November 1996, Mr Field attended Gillwinga for half a day to observe Daniel, in order to assess the type and level of support he would need if he were to attend the School.
On 17 December 1996 Mr Phillips met with Mr & Mrs Purvis to discuss their appeal against Mr Lindsay's decision.
On 23 December 1996, Mr Purvis filed a complaint with the Human Rights and Equal Opportunity Commission in relation to the School's refusal to accept Daniel's enrolment application.
In December 1996, Mr Bartley was appointed as Principal of the School.
On 24 December 1996 Mr Phillips wrote to Mr Purvis. Mr Phillips indicated that the Department's policy on the enrolment of children with disabilities had not been fully complied with by the School, that he regretted this situation and that he intended to finalise it as a matter of urgency in consultation with the newly appointed Principal.
On 24 January 1997, the delegate of the Disability Discrimination Commissioner convened a conciliation conference. According to Mrs Purvis' statement, it was agreed at this conciliation conference that the Department would communicate its decision regarding Daniel's enrolment by 21 February 1997, that the Department would inform Mr and Mrs Purvis whether Daniel could attend Gillwinga from 4 February 1997, and that Mr and Mrs Purvis would not press an application for an interim determination until informed of the Department's decision regarding the School.
2.5.2 The second enrolment application
In either late January or early February 1997, shortly after the conciliation conference, Mr Bartley visited Mr and Mrs Purvis at home to meet Daniel. Mrs Purvis recalled discussing Daniel's visual disability and his lack of body awareness and the need for positive direction. She also recalled that Mr Bartley was very positive about Daniel.
In February 1997, a new Integration Committee was established at the School to determine the amount and types of resources and support that the school would need to cater for Daniel. The members of this Integration Committee were Mr Bartley, Mr Perl (Teachers' Federation staff representative), Ms Donsworth, Ms McMillan, Mr James (the President of the School Council) and Ms Fernance (administrative support staff representative).
On 4 February 1997, a Teachers' Federation meeting was held by staff members at the School to discuss Daniel's application for enrolment. This meeting unanimously passed a motion calling on all concerned to ensure that the procedures in the NSW Teachers Federation Guidelines for Integration be strictly observed and that the Department provide resources and support services as outlined in the NSW Teachers' Federation Annual Conference Resolution 1995.
On 5 February 1997, the Integration Committee met to discuss Daniel's application for enrolment. In attendance were Mr Bartley, Mr Perl, Ms Donsworth, Ms McMillan, Mr James and Ms Fernance. It was suggested that Daniel be invited to attend the School for one day to assist with assessing his needs and the resources required to successfully integrate him into the School.
On 6 February 1997, the Integration Committee met with Mr Airlie and Mr Waldron from Gillwinga, to discuss their experiences with Daniel in primary school. It was noted that a strong orientation program in which Daniel became familiar with his movement from lesson to lesson would be very important. Also discussed was the fact that Daniel would need assistance in getting changed for physical education classes, and that Daniel's aides were female and Daniel would be using a male changing room. It was also suggested that a welfare action plan be developed, and other matters discussed.
On 7 February 1997, Mr Bartley met with Mr and Mrs Purvis to discuss actions being taken by the School in relation to Daniel's application for enrolment.
On 11 February 1997, Mr Airlie and Mr Waldron attended a Teachers' Federation Meeting at the School to provide examples of Daniel's work and to answer questions from staff at the School.
Also on 11 February 1997, Mr Purvis wrote to Mr Bartley advising that he and Mrs Purvis were apprehensive about Daniel participating in a trial day at the School, if this had the potential to be used as a barrier to Daniel attending the school. Mr Purvis stated that he would feel more comfortable about a trial day if Daniel's enrolment at the school was already confirmed.
On 13 February 1997, Mr Bartley wrote to Alex Purvis requesting Mr Purvis to re-consider his position regarding a trial day, and indicating that the trial was seen as a positive attempt by the School to assess the type of supports and resources that Daniel may require.
On 13 February 1997, Mr Purvis wrote to Mr Bartley conditionally agreeing to allow Daniel to take part in a trial day at the School.
In February 1997, Mr Bartley prepared a lengthy document entitled "Daniel Hoggan's Integration", which set out the issues, background and plans for the support and resources sought.
On 20 February 1997, a Teachers Federation meeting was held at the School. Mr Bartley attended and presented the meeting with a copy of the submission in support of his application for state integration funding, which is referred to above. A motion was passed at the meeting to accept the document prepared by Mr Bartley, and it was decided to defer a decision on whether to "approve" Daniel's enrolment.
On 20 February 1997, Mr and Mrs Purvis met with Mr Bartley and Ms Donsworth.On 21 February 1997, Mr Bartley completed a Department application form for state integration program funding for Daniel.
On 26 February 1997, a further Teachers Federation meeting was held to discuss Daniel's integration. Mr Bartley attended and set out the support and resources that would be made available to facilitate Daniel's integration. A motion was carried 27 to 12, with 9 abstentions, to "reject" the proposed enrolment of Daniel.
On 27 February 1997, an extraordinary staff meeting was held to discuss Daniel's integration. Mr Bartley sent a memo to staff, saying that he needed to be clear about the reasons for the vote to reject Daniel Hoggan's enrolment. Mr Bartley's memo asked staff to consider whether they were saying no on educational or industrial grounds.
After the staff meeting, also on 27 February 1997, a Teachers' Federation meeting was held. A motion was carried condemning the Department for placing the staff and Principal in the predicament of making a decision on enrolment without the necessary information. The motion also disapproved of additional funding being granted for Daniel when a Special Unit was already in existence at Grafton High School. 49 teachers voted in support of this motion, none against it, and 2 abstained. The minutes note that copies of the motion were sent to the Teachers Federation, senior officers of the Department, and politicians.
On 28 February 1997, Mr Bartley informed staff at the school that he had decided to accept Daniel's application for enrolment.
2.5.3 Preparations for Daniel's attendance at the school
In February/March 1997, before Daniel came to the school, a toilet and bathroom were constructed specifically for him. This toilet and bathroom were to be used by Daniel and his teachers' aides in the event that he soiled himself and needed to get changed. Mrs Purvis stated that the construction of a toilet and bathroom was not necessary, nor did she and Mr Purvis request it. In cross-examination of Mrs Purvis, counsel for the respondent put to Mrs Purvis that a special bathroom was constructed on advice from staff at Gillwinga. Mrs Purvis stated that a special toilet was also put in at Gillwinga for Daniel and that to her knowledge it was only used about once.
On 3 March 1997, Mr Bartley met with Mr and Mrs Purvis to discuss Daniel's enrolment at the school. The establishment of a case management committee was discussed.
On 7 March 1997, a further Teachers' Federation meeting was held to discuss the Principal's decision to enrol Daniel. A motion was carried by 23 to 14 (with one abstention) to re-assess the situation and re-convene the meeting in four weeks time.
Also on 7 March 1997, the Special Education Directorate approved funding of an amount equivalent to a Teachers' Aide (Special) for 77 days (6 1/4 hours per day) and a Casual Teacher for 20 days (6 hours per day), until the end of Term 2, 1997. This amount totalled $10,691.13.
On 11 March 1997, Mr Bartley met with Mr Purvis to discuss the issues that would be dealt with at the meeting to be held on the following day, including a welfare and discipline program and Daniel's educational program.
On 12 March 1997, Ms Donsworth and Mr Bartley met with Mr Purvis. The minutes of this meeting note that teachers were asked to bring in copies of their teaching programs, which would be provided to Distance Education to organise modified programs for Daniel. The issues of a welfare and discipline policy with appropriate sanctions for inappropriate behaviour was also discussed.
On 12 March 1997, Ms Fisher, Daniel's Distance Education teacher, travelled to Grafton from Sydney and spent a day at the Purvis' home. Ms Fisher met with Daniel, Ms Thompson, Ms LaForrest and Mr and Mrs Purvis. In her `Field Trip Report' of her visit to Grafton, Ms Fisher noted that she talked to Ms Thompson and observed her working with Daniel. She also reported discussing with Mr and Mrs Purvis how they would like Daniel's inclusion to work, and noted that total inclusion for Daniel in the classroom and socialisation were the priorities for them.
The next day, on 13 March 1997, Ms Fisher and Ms O' Keefe spent a day at the School. They met Mr Bartley and the Year 7 Co-ordinator, Ms Fitzmaurice. Mr Bartley had organised for groups of Year 7 teachers to meet with them throughout the day. At lunchtime they met with Mr Phillips. Ms Fisher's notes record some of the teachers' main concerns, for example how Daniel's presence in the class would affect the learning of other students, the constant presence of the teacher's aide in the classroom; monitoring learning; and being accountable.
On 19 March 1997 a meeting was held to formulate a Draft Welfare and Discipline Policy for Daniel. Mr Bartley and staff members Mr Perl, Ms McMillan, Ms Donsworth, Ms Court and Ms Fitzmaurice attended that meeting. Neither Mr Purvis, or Mrs Purvis, or Ms Thompson or Ms LaForest were invited to this meeting.
On 24 March 1997, Mr Bartley prepared a document entitled `Enrolment of Daniel Hoggan to South Grafton High School (Student with special needs)' (Exhibit 2, pages 20 to 21). This document states that no formal assessment has been made of Daniel's motor skills or visual impairment, and there is concern regarding possible dangers to Daniel from his participation in the classes of Science, Design and Technology, Visual Arts, PE and Sport. The document lists some of the safety concerns in relation to those subjects as including Daniel's level of dexterity and fine motor skills combined with his visual impairment, Daniel's ability to understand and respect the safety rules and guidelines in relation to practical subjects, the time required for Daniel to change for sport and whether his aide will participate in physical activities with him.
On 25 March 1997 a case management meeting was held. Mr Bartley, Mr Purvis, Ms Donsworth, Ms LaForest, Ms Thompson, Ms McMillan, Mr James and Ms Court attended the meeting. The notes of the meeting indicate that Mr Bartley read out the draft welfare and discipline policy. The issues noted in the minutes as being discussed include safety in the classroom, assessments, welfare policy, parents of other students in Daniel's class, and the staff development day. The minutes also note that it has been identified that Daniel is a better auditory learner than a visual learner, and that the school will be seeking resources, including tapes and headphones, which relate to auditory learning, and accessing suitable programs. The minutes also note that all contact with the school regarding Daniel's progress is to be made through the Principal only.
On 25 March 1997, Mr Bartley had a conversation with Ms Whitney from DOCS about Daniel's enrolment.
On 26 March 1997, Mr Bartley received a letter from Mr Purvis. Mr Purvis explained in this letter that he had never been adverse to providing the school with information about Daniel, however in the past he had sought more details regarding what information was needed and the purpose to which it would be put.
On 7 April 1997, a staff development day was held for Daniel's Year 7 teachers and his teacher's aides. This was chaired by Mr McPherson and was attended by Daniel's teachers' aides - Ms Thompson and Ms LaForest, and most of Daniel's Year 7 teachers: Mr Miller, Mr Murray, Ms Beletich, Mr Trudgett, R Jubb, G O'Connor, Ms Ebling, C Inmon, Ms Durant, Ms Court and the Year 7 Adviser, Ms Fitzmaurice. Ms Thompson stated that many of the teachers said that they were concerned about teaching Daniel and about what sort of behaviour to expect from him. The notes of the staff development day record the issues discussed as including mapping a daily routine, safety issues, classroom placement, regular testing and development of a `progress sheet'.
2.5.4 Term 2 1997 On 8 April 1997, Daniel commenced at the School.
On 24 April 1997, Daniel was suspended for one day after an incident with Ms Thompson. Ms Thompson stated that she cannot recall what happened, although she remembers going home. Mrs Purvis stated that the incident happened as a result of Daniel's reluctance to come to school. The suspension was recorded in the `Suspension, Exclusion and Declaration of Place Vacant Register' ("the Register"), where the reason given for the suspension was noted as `violence against staff'.
On 30 April 1997, a case management meeting was held which Mr Bartley, Mr Purvis, Ms Whitney, Ms Fitzmaurice, Mr James, Ms LaForest, Ms Thompson, Ms Court and Ms Donsworth attended. At this meeting, according to the notes, Ms Fitzmaurice reported that the effect of Daniel's presence in the classroom varied from class to class. She also reported that there had been some problems getting work from Distance Education. Ms Donsworth, the school counsellor, noted her concerns that Daniel was isolated in the playground. Mr Bartley commented on Daniel's behaviour in relation to the incident with Ms Thompson on 24 April 1997, and it was recommended that the usual letter of suspension and paperwork for a short suspension should be completed. Mr Purvis suggested that there might have to be adjustments to the Draft Welfare and Discipline Policy for Daniel, as Daniel may interpret being suspended and being sent home as a reward. It was noted that teaching staff were unsure whether their teaching strategies were improving Daniel's knowledge and whether he was learning in their classes. The need to assess Daniel was raised again, and Mr Purvis noted that he didn't have a problem with testing, so long as it benefited Daniel educationally. Mr Purvis stated that he believed Daniel was learning things, and benefiting by being at the school.
On 2 May 1997, Ms Thompson recorded in the Communication Book as follows:
"Excellent again today - no trouble getting him to school today. Great day - excellent mood - worked well. Went to Mrs Court p1 & 2 for "testing" I went too - went really well - she is lovely".
On 6 May 1997, Mr Bartley prepared an application for continued integration support for Daniel's enrolment at the school.
Also on 6 May 1997, Mr and Mrs Purvis arranged for Mr Lord to meet with them and Ms Thompson to discuss problems they were having getting Daniel to school. Following this discussion, on the advice of Mr Lord, Ms Thompson began meeting Daniel halfway between home and the school. In or around May or June 1997, Mr Bartley advised Ms Thompson not to leave the school grounds to collect Daniel. Mr Bartley explained to Ms Thompson that escorting a student to school was not part of her duties and she would not be covered by workers compensation insurance if she were injured while off school grounds.
On 7 May 1997, Mr Lord prepared a report on possible supports that may be required for Mr and Mrs Purvis to sustain Daniel's placement with them. Mr Lord noted that he was concerned about the level of stress that Daniel's behaviour and the Purvis' efforts to have him integrated into the school system were placing on the Purvis family. He recommended that DOCS maintain regular contact with the Purvis family and offer them support.
Also on 7 May 1997, Daniel was suspended for two days for kicking a fellow student and for calling his teachers' aide, Ms McLellan, a "fucking cunt". Daniel's suspension took effect from 3.30pm, 7 May until 9am, 12 May 1997. Mr Bartley wrote a letter to Mr and Mrs Purvis informing them of the suspension and the reason for the suspension, and the suspension was recorded in the Register.
Also on 7 May 1997, Mrs Purvis discussed the incident with Ms McLellan and what could be done differently next time. Ms McLellan mentioned that Daniel appeared isolated in the playground.
On 8 May 1997, Mr and Mrs Purvis met with Mr Bartley to discuss their concerns about the appropriateness of suspension as a sanction, as Daniel did not understand that staying home from school was punishment. It was agreed that Mr Lord be contacted again and that a meeting be arranged to discuss behaviour management.
On 9 May 1997, a report was prepared by Ms Donsworth setting out the results of tests conducted by herself and Ms Court. Ms Donsworth concluded that Daniel's literacy and numeracy skills were at about pre-school level. Mr Purvis stated that this testing was performed without his permission, and was inappropriate for Daniel because of his visual impairment. Mr Bartley stated that as a result of the discussion at the case management meeting held on 30 April 1997, he understood that Mr Purvis had agreed to literacy and numeracy testing of Daniel being coordinated by Ms Donsworth.
On 11 May 1997, Mr Purvis wrote to Mr Bartley in relation to the mid-term evaluation, the daily evaluation sheets and the Draft Welfare and Discipline Policy for Daniel. He questioned the objectives of the mid-term evaluation and daily evaluation sheets and noted his concerns regarding suspension, as it was a sanction which Daniel did not understand. Mr Purvis suggested that it might be useful to utilise the psychologist, Mr Lord, to assist with the development of more appropriate sanctions and rewards for Daniel.
On 12 May 1997, the Communication book records as follows:
"Excellent today - walked to school, no problems - really wonderful all of my time.
Great this arvo, very happy asking lots of questions..."
On 15 May 1997, the Communication Book records "Dan has been great this arvo, did heaps of work in Science, Humanities teacher away so we did Distance Ed. Two boys and four girls had lunch with Dan today, their choice, encouraging him to answer them when they ask questions, did really well, they stayed around for the whole of lunch..."
On 22 May 1997 the Communication Book records:
"Excellent again today, worked beautifully through Art and Health/PE, is talking more with the other children. They are interacting more of their own accord - is happy to be at school."
On 26 May 1997 the Communication Book records:
"Great day! Worked well throughout morning - happy to be here... great this arvo, threw the javelin in the carnival... Excellent at carnival, Dan went in the shot-put, discuss and 200 metre run, was really good - had a good time..."
In May 1997, some of Daniel's teachers prepared half-yearly reports for him.
Also in May 1997, most of Daniel's teachers completed a mid-term evaluation for him.
On 29 May 1997, Mr Bartley met with Mr Lord, a psychologist with the Department of Community Services. The meeting lasted for about three hours. The use of `time out' as a behaviour management strategy was discussed.
Also on 29 May 1997, the Communication Book records:
"Great arvo, had our speech today. Dan didn't want to wear his helmet and armour but held it and told the class who wore it. We had taped Dan last week so we played the tape the class all clapped and told Dan well done, he did a great job."
On 30 May 1997, Ms Thompson spoke to Ms Fisher in relation to Daniel being unsettled when other students sat exams.
On 30 May 1997, Daniel kicked a desk over, kicked other students, kicked bags and swore. The Communication Book (Exhibit 27) between the teachers' aides and Mr and Mrs Purvis recorded for Friday 30 May 1997:
"Day started well, but unfortunately spent double English in time-out for kicking a desk over, kicking kids bags and swearing in English. Is very stressed about Science test (Monday) (that's what upset him)".
2.5.5 Term 3 1997
In her first statement Mrs Purvis states as follows:
"By June of 1997 I had observed that Daniel had settled down and was going to school quite happily. I believe his level of self esteem had improved and he appeared to be maturing. Daniel was making friends and had been invited to another birthday party. Some of the things he enjoyed and his achievements in that time included:
* " Wind in the Willows"
* He was in a play " A Convicts Life"
* Presented a talk on Ned Kelly to the class
* he was playing with boys at lunch time
* "Cool Card" for Art
* he was in a motor bike rally as part of an English project where he worked in a team
* he completed a science project"
On 6 June 1997, the Communication Book records:
"Excellent start today. A boy named Nathan has been talking to Dan regularly. He came looking for him before school today..."
On 10 June 1997 the Communication Book records:
"Good morning, worked really well, singing ++ boys Ben, Matt & Mark asked him to sit with them in Library and for lunch (dirty clothes in bag)... Great arvo, had a good time at lunch with the boys Ben, Matt, Mark, Daniel Saye, Ned and about four others, enjoyed Language. We ate for 30 mins rice, noodles and sate chicken, told Mr Avery it was nasi goreng and sate ayam."
On 18 June 1997, the Communication Book records:
"Dan would not get changed/ He wet himself. He tried to hit and kick me (Ms McLellan) so I made him stay in the corner..."
On 18 June 1997, Mr Bartley again met with Mr Lord, for one and half-hours, to discuss behaviour management strategies. Mr Bartley said that Mr Lord did not make many suggestions as to additional strategies that could be used to manage Daniel's behaviour more successfully. Mr Lord stated that he did not feel in a position to make any further suggestions, not having observed Daniel within the school.
On 18 June 1997, a case management meeting was held which Mr Bartley, Mr Lord, Mr and Mrs Purvis, Ms Court, Ms Thompson, Ms McMillan, Ms Fitzmaurice and Ms Whitney attended. Mr Lord addressed the meeting regarding assessing Daniel and other matters. Mr Lord stated that at this meeting, he offered to attend the school to observe Daniel and to then sit down with the teachers and devise a behaviour management plan at no cost to the school. However he stated that he was not contacted again. Mrs Purvis states that she prepared type-written notes (Exhibit 32, pages 75-76) which she `skim-read' to the meeting and stated how pleased she and Mr Purvis were with Daniel's integration. Under the heading "What has been the effect on Daniel of starting high school?", Mrs Purvis wrote in these notes:
"Daniel has become more responsible and has taken on jobs of his own accord... He is also interacting with other children and adults better. Note: As Daniel has settled into school he appears more settled within himself and his self-esteem seems to be on the rise so that he wants to do things like helping".
Mrs Purvis goes on to state in this document that:
"Daniel has had over fifteen different teachers. He knows their names and what subjects they teach... Daniel is coming home and accurately reporting what his day was like, how he coped and what he learned... He talks about his friends at school and especially at sport. When we go down the street kids come up and say hi to him. It is very rewarding when on two separate weekends his friends rang up and came around to play... We have been very pleased with the way Daniel has settled into school. All the teachers need to be commended with how he is becoming an accepted member of the class..."
In her statement Ms Thompson says as follows:
"It was my view that by the end of term 2 Daniel had settled well into his school life at South Grafton High School and was very much enjoying the interaction with his peers. He began to develop friendship with the group of boys with whom he sat at lunch times. In Music, Science and Library, Daniel completed the same tests that were being done by all students in the class and did answer some questions correctly. Daniel was learning and retaining things that interested him. Whilst Daniel was not always on task, and it could take some effort to get him to complete tasks, he was by no means the most disruptive member of the class. Most other students were louder than Daniel, which contributed to his poor concentration."
On 19 June 1997, Daniel told his aide to "fuck off", then kicked his aide, Ms McClennan, and ran off. In the Communication Book Ms McClennan records:
"Dan sat with Matt and friends at lunch and enjoyed his noodle. But when it was time to go to class Dan was going home. When I told him we had 2 bells to go before Dan goes home. So he told me to F off then kicked me then ran down to the back fence to go home. Some of the students tried to encourage Dan to go to class but he told them to F off and tried kicking again. He refused to go, one of the students got Mr Bartley. As soon as Dan saw Mr Bartley he knew he was in trouble and went with him quietly. I'm OK just a little bruise."
On 23 June 1997, Daniel kicked, punched and bit his aide. The Communication Book records:
"Horrid start to day. Dan wouldn't come to school got as far as tennis courts before he started yelling, swearing etc. Tried for 5 mins to talk him round, he was kicking, punching and biting me. I had to pull his hair to stop him biting. Ran off toward home threw himself on wet grass, swearing +++ Geoff came past in car, then walked back. Talked to him for about 5 mins then slowly started to get him back to school, we got as far as the gate then he started again, the bell had gone by this time. Daniel wasn't going to school. Ran across paddock and threw himself in grass. Barry came to get him, spent 1 ½ periods outside Barry's office".
On 24 June 1997, Daniel was swearing and tried to kick his aide. The teacher's aide that afternoon records:
"Not a very good start, swearing and tried to kick me (too quick). Wet clothes in bag."
On 25 June 1997, Mr and Mrs Purvis wrote to Mr Bartley to thank him and Daniel's case management team for their efforts in relation to Daniel.
On 17 July 1997, the Special Education Directorate approved funding totalling $10,296.30 in respect of Daniel's enrolment at the school. This was an amount equivalent to a teacher's aide (special) for 105 days (6 ¼ hours per day) and a casual teacher for 6 hours a day.
The following entry appears in the Communication Book with 25/6 written next to it, however it appears that this is an error as there is an earlier entry some pages previous for 25 June 1997. This entry should be for 25 July 1997. The entry records:
"Totally lost it after you left, kicked and punched me, kicking doors etc - Barry came and got him - took him to his office - kept him until recess".
On 28 July 1997, Mr and Mrs Purvis attended parent teacher interviews at the school.
On 30 July 1997, Daniel was suspended for 2 days following an incident in which he kicked his teachers' aide, Ms LaForest. On 1 August 1997 Mr Bartley wrote a letter to Mr and Mrs Purvis in relation to this incident. The suspension was recorded in the suspension and exclusion register. In her statement (Exhibit 49) Ms LaForest describes the incident as follows:
"I was having difficulty convincing Daniel to go to class and he kicked me with the back of his heel.
I said words to the effect "it's not nice to be kicked Dan" and, to my horror, I kicked him back.
I was horrified and very surprised by my response."
Mr Bartley completed a "Critical Incident Report" form the same day, which was faxed to Mr Phillips.
On 31 July 1997, Mr & Mrs Purvis met with Mr Phillips and Mr Bartley regarding the incident and the fact that Ms LaForest had kicked Daniel. Mr and Mrs Purvis advised Mr Bartley and Mr Phillips that they did not wish the matter to be taken any further and Ms LaForest was not suspended from her duties.
On 1 August 1997, Mr Bartley wrote to Ms LaForest to formally note his concern about the incident.
On 4 August 1997, Ms Fisher, Daniel's Distance Education teacher, again travelled to Grafton. She met with Ms Thompson and Ms LaForest and later met with Mr and Mrs Purvis and Daniel at the Purvis' home.
On 5 August 1997, Ms Fisher spent a day at the School. She met with Mr Bartley and then observed and worked with Daniel in the classroom.
On 8 August 1997, Mr Garrard and Mr Callan, both of whom were special education consultants with the Special Education Directorate of the Department, attended a case management meeting at the School. Prior to this meeting Mr Garrard and Mr Callan had spent the day at the school observing Daniel in his classes. Mr Bartley, Mr Purvis, Ms Thompson, Ms LaForest, Ms Donsworth, Ms Fitzmaurice, Ms Court, Kim Whitney, and Mr Field also attended the meeting. Many issues were discussed, such as the appropriate curriculum for Daniel.
On 13 August 1997, a student reported that Daniel came running towards her and another student near the library, with Ms Thompson in pursuit. The student said that they started talking to Daniel in order to stop him running, and they asked him where he was going and why he was running away from Ms Thompson. Daniel is reported to have responded, "I hate her and I'm going to kill her". Ms Thompson stated that she finds it difficult to believe that Daniel would have used those words.
On 21 August 1997, Daniel ran onto the street. The Communication Book records as follows:
"15 mins late to Art (1st period) ran away was on way home down past tennis courts out onto street. Finally to class - very easily distracted in Art - ran off with 5 minutes to go - refused to come back was going home - took 20 mins to get him to Barry's (Mr Bartley's) office..."
In August or September 1997, Ken Callan and Peter Garrard prepared a document entitled "Program Review" in relation to Daniel ("the Callan and Gerrard Report"). The Callan and Gerrard Report was set out under the headings of background, review procedure, the current situation, and recommendations. The Callan and Gerrard report's recommendations are as follows:
* "Daniel's current placement at SGHS should continue with appropriate ongoing support.
* An individual transition plan (ITP) be developed to clarify the goals for Daniel's program. The development of this plan can be supported by district or state transition personnel.
* Daniel's ITP form the basis of his individualised program including appropriate curriculum design, modifications to the support provided by the DESU, greater involvement of ST(LD) and support to individual class teachers who wish to take a more active role in the planning, preparation and delivery of Daniel's program.
* Administrative processes to support the management and coordination of Daniel's program be clarified to endure that the year adviser and other key staff can monitor progress towards the goals of Daniel's ITP.
* The involvement of additional support staff available from district and state should be considered...
* The main focus of the principal's responsibility should continue to be liaison with Mr and Mrs Purvis, school personnel and outside agencies. The support currently being provided daily to Daniel by the principal should be shared with one or two other members of staff who volunteer to develop a closer relationship with Daniel. This relationship may be developed into a mentoring and crisis management role...
* The Director, Special Education be requested to provide an additional allocation from the state integration program to provide five days of teacher release time to enable interested teachers to participate in IEP/ITP development for Daniel.
* There be a formal review of the acceptance and implementation of these recommendations in Term 4 involving the case management committee and district and state support personnel."
Mr Phillips then made contact with Ms Martin to discuss his concerns about the Callan and Gerrard Report and issues that he felt it failed to address. Mr Phillips stated that he said something to Ms Martin along the lines of:
"Well, clearly this is a complex issue. The Principal and the School need support. We need people on the ground. We don't need a piece of paper which has got generalisations and is limited. We need people to come up".
Mr Phillips stated that Ms Martin then agreed to organise for support staff to travel to Grafton. This arrangement was confirmed in Ms Martin's letter to Mr Phillips of 16 September 1997, which recommended that Mr Gerard and Ms Bruveris, "visit the school with appropriate personnel from district office to provide follow-up to the issues which were initially discussed".
Mr Bartley and Mr and Mrs Purvis were unaware of the existence of the Callan and Gerrard Report until Mr Purvis obtained a copy of it under Freedom of Information legislation in 1998. In cross-examination, when asked why he did not provide a copy of the Callan and Gerard Report to Mr Bartley, Mr Phillips stated that the Report was meant to be a working document for Ms Martin; that there was no need to provide the report to Mr Bartley or the case management group as he, Mr Phillips, immediately spoke to Ms Martin and organised for Mr Gerrand and Ms Bruveris to visit; and that while Mr Callan and Mr Gerrard were expected to provide feedback, this feedback need not be in the form of a report. Mr Phillips explains:
"...I had major concerns with the limitations of the recommendations and the way in which it had been written. And I asked the people to be sent - I asked Heather Martin for these people to revisit and come back to the school to talk to the people, and talk firsthand about these matters, which I believed was far better than faxing a piece of paper from Sydney in isolation, and people trying to make some sense of what was being offered through two or three pages of documentation that was clearly limited".
On 2 September 1997, Daniel was suspended from school for 13 school days for kicking a Year 10 student in the leg. This was later reduced to a 7-day suspension. Ms Thompson says in her statement (Exhibit 45):
"61. The suspension arose because Daniel was difficult to get to school that day and was very stressed. I took Alana Richards to the Office for an ice pack as a precaution and took Daniel to Mr Bartley. Alana was very confused about the fuss. I saw the impact of the kick, there was no broken skin or mark, and Alana was not limping and did not appear hurt".
On 6 September 1997, Daniel ran out onto the road and was narrowly missed by a car.
On 8 September 1997, Ms Donsworth prepared a report as school counsellor in relation to Daniel's suspension of 3 September 1997.
On 10 September 1997, Mr Field faxed a handwritten note (Exhibit 52, pages 656 to 657) to Mr Bartley with a list of "ideas you may consider" for dealing with Daniel's behaviour, which he had formulated following a meeting with Ms Thompson and Ms LaForest:
"1. Alter morning entry point to school from present to entry from football field.
2. Karen to pick Daniel up at steps and take him to library and retain there until commencement of period 1... Karen to debrief on any previous day issues and prepare Daniel for day ahead.
3. Certain alternative uses to be made of four particular periods during the week:
* Tuesday - period 5 for Dist. Ed work to catch up on much undone work
* Wednesday - period 6 - TAS to provide Daniel with O.T. type activities
* Thursday - period 7 (see Tuesday)
* Friday - Period 1 - debriefing of weeks activities and reading time in library.
4. Rewards & Punishment - Karen & Lorraine to shift `blackboard' punishment to symbolic level involving home in rewards & punishments (need to elaborate on this with you).
5. Jenny Pursey, IST (Integration) can be accessed through this office as an ideas & support person for K & L & gets on well with Daniel."
On 15 September 1997, Daniel returned to school following a decision to shorten the length of his suspension to allow him to attend a behavioural management course.
An entry in the Communication Book headed 17 September describes Daniel swearing at his teacher's aide, kicking over a garbage bin and refusing to pick up the garbage when asked to do so by the aide. The Communication Book records as follows:
"Not a great arvo. Wanted to go home at lunchtime had to keep changing his direction as he kept heading towards car park. Got change for P.E. with little hassle, went to P.E. threw ball around with Adam and Daniel for about 10 mins then threw ball over the fence. Adam went and got it and he threw it over again so I told Adam not to give it to him again and tried to talk to Dan positively about what fun we were having and how well he was throwing the ball to Adam and Daniel started swearing at me and said he was going to wet is pants which he did 3 times then ran over to the garbage bin kick rubbish everywhere, wouldn't go with me to get changed, wouldn't pick bin up. Just kept swearing and saying he was going home, went to get Bob Perl who then came over and spoke to Dan got him to pick up rubbish by this time there was about 5 mins to final bell".
The next dated entry in the Communication Book is headed 16 September, but appears to have been written in later. This entry records that Daniel pushed a student into a wall and pulled a chair out from under another student:
"Rotten start, swearing agro++, not happy to go to class, worked well in D & T. Bad day, not happy to be here.
Pushed Daniel Saye into a wall, pulled Katie's chair from under her".
On 18 September 1997, Daniel was suspended for 12 school days (until 17 October 1997) after punching Ms Thompson in the back. Daniel did not return to the school following this suspension thus 18 September 1997, was Daniel's final day at the school. The Communication Book records:
"Bad start, not happy to go to class from roll call, ran off across carpark. I sat and watched from a distance. Norm Trudgett came to intervene, walked with us to Art. Ran off from Art would not go to class stood at tennis courts then ran of to small oval - refused to go to class sat under table - after about 20 mins into 2nd period - went up to Dan and said "I'm going to get our bags" when I walked away, Daniel came up behind me and thumped me in the back. Brian Heath and Mr Bruce came and took Daniel to the office".
Also on 18 September 1997, Mr Bartley wrote to Mr and Mrs Purvis, advising of the suspension and that the incident with Ms Thompson "...has left all of us in a quandry as to where we should go from here". He also writes:
"You should be aware that at this stage, both teacher's Aids are feeling extremely stressed because they feel that as a result of all of their efforts, sensitivity and care, that Daniel is not responding it the manner that we had wished, indeed Daniel's violence, swearing and inappropriate behaviour in the last 8 weeks has increased by a considerable amount...
As the Principal of the School, I have averaged approximately 7 hours per week in providing the structure and strategies to support Daniel's education at this school...
I feel a sense of loss and have no joy in again suspending Daniel from school for violent behaviour and assault of his aid. We will again await the reports of another expert, Ms Carrie Brookes, to see if there is anything that we may do to help Daniel in the future, however, one thing that is clear, is that Daniel is not coping with the normal life of a High School. I think it is time for all of us to rethink our objectives in relation to meeting the needs of Daniel for as we have stated in the past, his needs, both educationally and social, are our greatest concern..."
Also on 18 September, Ms Fisher and Ms Thompson had a telephone conversation regarding Daniel's behaviour that day. Ms Thompson indicated that she was upset and that Daniel appeared very stressed. Ms Fisher's notes of the conversation are as follows:
"Karyn rang to say that Daniel had kicked her for no reason in the back. Hurt her quite badly - she was very upset. Clemency had picked Daniel up from school and taken him home. Karyn says she is not prepared to continue with Daniel - she feels as though she has `had it'.
She loves Dan and can see that he is stressed and unhappy. Barry in a meeting. Karyn is waiting to see him before she goes home. Will let me know what is happening".
On 18 September 1997, Mr Bartley faxed to Mr Phillips a draft recommendation in relation to Daniel's future education. This document recommended that his teachers' aides through Distance Education deliver Daniel's academic education at home, and that his aides have access to the full support and resources of the school. Mr Bartley recommended that Daniel joins sports lessons and school excursions, and that a social group or circle of friends be established to meet with Daniel on a regular basis.
On 19 September 1997, a Teachers Federation meeting was held to discuss Daniel's continued enrolment. A letter was drafted to Mr Phillips calling for Daniel to be placed in a more suitable environment, and seeking a response by 22 October 1997.
On 25 September 1997, Ms Thompson spoke to Ms Fisher regarding Daniel's suspension & other matters, Ms Fisher's notes record in part:
"Phoned Karyn. Daniel is suspended until Week 3 of Term 4. Karyn is still distressed. Her back is healing- she is having physio. Is working at school doing photocopying etc. Staff being very supportive. Barry also very supportive.
Daniel went to school on Tuesday so that DOCS counsellor - Carrie Brooks could do some assessments and behaviour assessment. Daniel was really acting out and was verbally abusive to Karyn".
On 26 September 1997, Mr Bartley wrote to Mr and Mrs Purvis outlining his concerns and strongly suggesting that they explore the option of enrolling Daniel in the Special Unit at Grafton High School.
2.5.6 Term 4 1997
On 15 October 1997, a case management meeting was held. Mr Bartley, Mr Phillips, Carol Baldwin, Mr and Mrs Purvis, Ms Thompson, Ms LaForest, Ms McLennan, Ms McMillan, Ms Donsworth, Ms Court, Mr Scahill, Ms Brooks, Mr Garrard and Ms Bruveris, and Kim Whitney attended. Various options were discussed for Daniel's return to school, however no consensus was reached about what should be done.
On 15 October 1997, Ms Brookes completed a report in relation to Daniel's behaviour after observing him in the classroom and in the playground over two mornings. This report identified the functions of Daniel's behaviour as avoidance of a particular situation and seeking attention. Ms Brookes' guidelines aimed to provide more predictability, responsibility and rewards for Daniel on a daily basis.
On 16 October 1997, Mr Scahill telephoned Mr Bartley and advised him that Daniel would not be returning to school until the situation was resolved.
On 25 October 1997, Ms Donsworth prepared a counsellor's report in relation to Daniel's suspension of 18 September 1997. Ms Donsworth recommended that Daniel be enrolled in the Special Education Unit 10 class at Grafton High School in Term 4.
On 28 October 1997, Mr Bartley prepared an application for state integration program funding support for the 1998 school year in respect of Daniel's enrolment at the school.
On 4 November 1997, a Teachers' Federation meeting was held to discuss Daniel's enrolment. A motion was passed by 41 (including two proxies) to zero, rejecting the inclusion of Daniel at the school based on safety issues and the needs of the student, and recommending that he enrol in the Special Unit at Grafton High School.
On 4 November 1997, Mr Bartley received a letter from Mr Perl informing him of the motion passed at the Teachers' Federation meeting held earlier that day rejecting the inclusion of Daniel at the school.
On 5 November 1997, a case management meeting was held. Mr Bartley, Ms Thompson, Carol Baldwin, Kim Whitney, Mr and Mrs Purvis, Ms McMillan and Ms Brookes attended the meeting.On 6 November 1997, Mr Purvis contacted Mr Clark to request his assistance in adjusting Daniel's curriculum and to find out if he would attend a meeting with Mr & Mrs Purvis, Ms Whitney, Ms Brookes and Ms Thompson. Mr Clarke advised that the Teachers' Federation had issued a directive opposing the inclusion of all children with disabilities, regardless of the nature of their disabilities, in general classrooms, and that he would think about it.
On 6 November 1997, Mr Clark advised Mrs Purvis that he was not able to assist because he was opposed to what the Purvis' were doing and because of the Teachers' Federation directive.
The minutes (Exhibit 52 pages 777 to 783) note that Mr Bartley opened the meeting by saying that "Ron (Phillips) is the Case Manager and that being the case, what is said at this particular meeting has no bearing on any outcomes decided. It all has to go through Ron..." Some of the matters discussed included the motion passed by the Teachers' Federation, and general issues regarding Daniel's placement. Mr Bartley had to leave the meeting early to attend a prior appointment. On 6 November 1997, a meeting was held between Mr and Mrs Purvis, Kim Whitney, Ms Brookes and Ms Thompson to discuss a proposed revised educational program for Daniel.
On 7 November 1997, Mr Bartley received a facsimile from the Department of Community Services attaching a submission prepared by Kim Whitney in conjunction with Ms Brooks, Mr and Mrs Purvis and Ms Thompson setting out a proposed educational program for Daniel.
On 17 November 1997, Mr Purvis wrote to Mr Phillips regarding the meeting on 18 November 1997. Mr Purvis requested to attend the meetings scheduled to take place the next day.
On 18 November 1997 at 1pm, a meeting was held to discuss Daniel's educational needs. Mr Bartley, Mr Phillips, Ms Brookes, Mr Scahill, Mr Clark, Mr Field, Ms Bruveris, Ms McMillan, Carol Baldwin and Kim Whitney attended the meeting. Mr and Mrs Purvis were not invited to attend. The decision was made at this meeting that it would be in Daniel's best interests for him to attend the Support Unit at Grafton High School.
Mr and Mrs Purvis were invited to attend at 3pm on 18 November 1997 to be advised of the outcomes of the meeting.
On 20 November 1997, Mr Purvis met with Mr Clark and Allen Simmons from Grafton High School.
On 27 November 1997, Mr Myers (DOCS) wrote to Mr and Mrs Purvis stating that Daniel should be enrolled in the Support Unit at Grafton High School. This letter states that:
"the current situation, where Daniel is out of school completely for lengthy periods, is however, not a situation we can continue to support, either in principle or in terms of funding... Daniel should be enrolled immediately in Grafton High Special class and the issues of integration pursued from there..."
On 2 December 1997, Mr Purvis sent a fax to Mr Phillips and Mr Bartley advising that he would be sending Daniel to the School the following day, 3 December 1997.
On 3 December 1997, Mr Bartley met with Mr and Mrs Purvis and Daniel. Mr Bartley states that he advised Mr and Mrs Purvis at this meeting that he would have to move on Daniel's exclusion. Mr and Mrs Purvis state that Mr Bartley was not prepared to allow Daniel to stay at school, however they claim that Mr Bartley gave no indication that Daniel was going to be excluded from the school.
On 3 December 1997, Mr and Mrs Purvis issued a press release in relation to Daniel, with the heading, "Department of School Education Chooses International Day of People with a Disability to Refuse Child With Disability Access to School".
Also on 3 December 1997, Barry Bartley wrote to Mr Scahill at DOCS advising of his decision to exclude Daniel from the School:
"Following the three meetings that have been held in relation to your ward, Daniel Hoggan, the situation that caused his last suspension for very violent behaviour has not been resolved... As well as Daniel's education, I am also responsible for over 1000 other students and 80 teaching or SASS staff. The health and safety of all these people are also of great concern...
Based on the above procedures and meetings which have been unresolved, I am moving an exclusion of Daniel from South Grafton High School. Action will be taken to find an alternative placement within ten days. I will discuss with Ron Phillips options within the 10 day timeframe".
On 3 December 1997, Mr Bartley prepared a report form for Distance Education re Daniel. The form is headed `1997 Review' and firstly seeks comments on the student's (Daniel's) program and progress in 1997, to which Mr Bartley responded:
"The programs sent have been well prepared and researched. However, they have not met Daniel's needs. It is most difficult to measure progress in any area. We linked the program to the curriculum that all students are doing. I think we need to start again in relation to what Daniel should be taught and how it should be taught".
On 5 December 1997, Mr Phillips made a statement to the press about Daniel's exclusion. In her first statement, Mrs Purvis says: "On 5 December 1997 Alex & I found out in the media that Daniel had been excluded from school. We were both at home and saw Rob Phillips being interviewed on the television about Daniel."
On 7 December 1997, Alex Purvis wrote to John Sutton, Assistant Director General, of the Department, to appeal the decision to exclude Daniel from the school.
Also on 7 December 1997, Mr Purvis replied to Mr Myers' letter of 27/11/97. Mr Purvis advised that he and Mrs Purvis had no intention of enrolling Daniel in segregated education.
On 8 December 1997, Ms Donsworth prepared another counsellor's report in which she reiterated her recommendation of 25 October 1997, that Daniel be enrolled in the Support Class of the Special Education Unit at Grafton High School.
On 9 December 1997, Mr Bartley was advised that Mr Purvis had appealed to the Assistant Director-General in relation to the decision to exclude Daniel.
In mid-December 1997, most of Daniel's teachers prepared a yearly report for him.
On 15 December 1997, the State Integration Funding Committee approved funding for Daniel for 1998 totalling $20,822.30.
On 18 December 1997, Mr Bartley wrote to Mr Sutton and provided background information regarding Daniel's case. Mr Bartley wrote of the meetings organised with various educational authorities, teachers and departmental officials throughout 1997. He attached a report prepared in early 1997 which was a summary of support and resources required for Daniel's successful integration. He noted that the Department advised that it would not be possible to supply a Special Education teacher, but that Daniel would be supplied with teaching resources and programs from Distance Education, and that Staff from this area had travelled to Grafton as part of formulating his material. Mr Bartley stated that Mr and Mrs Purvis declined any numeracy and literacy testing.
On 14 January 1998, Mr Myers replied to Mr Purvis' letter to him of 7 December 1997. Mr Myers responded to Mr Purvis' questions, and confirmed that the position of DOCS was that a placement in the Special Unit at Grafton High School would be less detrimental to Daniel's development than no school placement. Mr Myers also indicated that financial support for Daniel's care would be terminated while he was out of school from the commencement of Term 1 1998.
2.5.7 Relevant events of 1998 and 1999
On 8 February 1998, Mr Purvis sent an additional submission to Mr Sutton in relation to his appeal (Exhibit 6). This submission consisted of some 14 pages plus attachments, and responded to Mr Phillips' letter of 9 January 1998. Some of the points Mr Purvis raised are:
* the Department "has eliminated us (his parents) from the communication loop and communicates and continues to communicate with DOCS. This is particularly critical in relation to exclusion..."
* "It is false to claim that case management meetings in October and November 1997 discussed options for Daniel's education. They were about convincing Clemency and myself to enrol Daniel in a support unit."
* Daniel's last suspension was for 12 school days, until 17 October 1997, therefore the "issue of the suspension being unresolved is a fiction..."
* "Whilst I do not wish in any way to condone violence, for most students some of the incidents for which Daniel was suspended are regarded as part of the rough and tumble of the school playground and so go unreported even though they may be observed by teachers. One of the issues that is well documented in the literature is the over reporting of such incidents for students with disabilities. Unfortunately these incidents are seized upon by those who don't want students with disabilities at school, used to demonise them and exclude them from school."
* "The school was advised verbally and in writing soon after Daniel commenced of his difficulty in grasping the purpose of suspensions but failed to modify its actions. Daniel was effectively taught to see suspensions as a way out of stressful situations."
* "The teachers aides refused to work with Daniel because the DET wouldn't modify its practices. It wasn't so much Daniel they were concerned about but rather the lack of support and the hostile atmosphere at the school."
* "The school never implemented Ms Carrie Brooks' advice."
* "Overall the school has failed to take effective advantage of the expert resources that were made available at no cost to itself."
On 17 February 1998, Mr Sutton wrote to Mr Purvis advising him of his decision to reject Mr Purvis' appeal against the decision by Mr Bartley to exclude Daniel from the School. Mr Sutton stated that he had considered material provided by Mr Bartley and Mr Phillips, a copy of which he said was provided to Mr Purvis on 27 January 1998. He had also considered Mr Purvis' submissions dated 19 December 1997, information provided at their meeting on 27 January 1998, and further information provided on 8 February 1998. Mr Sutton said he was satisfied that:
"Mr Bartley was genuinely unable to resolve the issues which led to Daniel's long suspension of 26 September 1997.
In my opinion Mr Bartley acted appropriately in his decision to exclude Daniel in accordance with the Department of Education and Training's Revised Procedures Concerning Suspension, Exclusion and Expulsion of Students from School and Declaration of Place Vacant. I have therefore declined your appeal.
Mr Phillips will contact you as a matter of urgency so that a suitable alternative school placement can be considered for Daniel".
On 5 March 1998, Mr Myers wrote to Mr and Mrs Purvis advising them of his decision to terminate financial assistance, which had been provided to support Daniel during the day while he was out of school.
On 22 March 1998, Mr Purvis lodged his complaint with the Human Rights and Equal Opportunity Commission in relation to the decision to exclude Daniel from the school.
On 23 March 1998, Mr Purvis wrote to Mr Myers in relation to the decision of DOCS to terminate financial assistance for Daniel's home schooling.
On 7 April 1998, Mr and Mrs Purvis appealed to the Community Services Commission in respect of DOCS' decision.
On 15 July 1998, the Community Services Commission completed an assessment of Mr and Mrs Purvis' complaint.
On 28 August 1998, Mr Myers wrote to Mr & Mrs Purvis advising them of DOCS' view re Daniel's education, that Daniel's best interests would be served by enrolling him in the Special Unit at Grafton High School with the maximum integration that his behaviour indicates he can tolerate.
On 20 October 1998, Ms Brookes completed a memorandum for Keith Pyke, Senior Practitioner, DOCS, supporting Daniel's placement in the Special Unit at Grafton High School. Some of the reasons Ms Brookes cited for this recommendation are that the Special Unit provides "an augmentative communication environment that would be very beneficial for Daniel to provide predictability for his daily activities"; more academically orientated classes at the School were difficult for Daniel and he had a higher probability of behavioural outbursts; "functional" teaching at the Special Unit is more suitable for Daniel; class sizes are smaller; and staff are trained in working with learners with specific needs similar to Daniel's.
On 15 January 1999, a meeting was held between DOCS, Mr and Mrs Purvis, Ms Hoggan and Mr Gallagher in relation to the complaint to the Community Services Commission. DOCS agreed that financial assistance would be restored.
On 8 March 1999, Mr Hamilton, Director Distance Education wrote to Mr Purvis advising him that the Distance Education Program was not appropriate and Daniel should be enrolled in the Support Unit at Grafton High School.
On 22 March 1999, a Case Management Meeting was held between DOCS, Mr and Mrs Purvis and Mr Phillips.
On 22 March 1999, the Community Services Commission provided its `Review of Assessment Decision' in relation to the complaint by Mr and Mrs Purvis and their subsequent request for a review of the Commission's complaint assessment decision. In this review, Mr Gary Dawson, Manager, Complaints Investigations and Reviews, states that Mr and Mrs Purvis complained that DOCS failed to provide adequate support and advocacy for them and Daniel in relation to Daniel's education. The review concludes that the Commission's initial assessment decision to refer the complaint to DOCS for action should stand.
2.6 Department and school policies, and policies specifically for Daniel
There were three general Department policies relevant to Daniel. The first of these is the Special Education Policy, the second is the Student Welfare Policy, and the third is the Procedures Concerning Suspension, Exclusion and Expulsion of Students from School and Declaration of Place Vacant.
There was one policy specific to the School, the School Discipline Policy 1995.
The document referred to in the chronology as the Draft Welfare and Discipline Policy for Daniel was a modified version of the Department's Student Welfare Policy.
All of these policies are summarised below.
2.6.1 Policies of the Department
188.8.131.52 Special Education Policy
The Special Education Policy (Exhibit 86) states that the Department "will ensure quality of educational opportunities and will continue to provide for groups with special teaching and learning requirements within available resources." It sets out a list of "Special Education Objectives", which seek to, for example, "provide an equitable and flexible continuum of Special Education services (regular classes, support classes in regular schools and special schools) to allow for appropriate education choices which cater for the needs of each student". The policy states that it is "based on the principle of Normalisation, that is, the creation of a lifestyle and set of living conditions for people with disabilities which are as close as possible to those enjoyed by the rest of the population." For example, the Department "acknowledges that every child with a disability, learning difficulty or behaviour disorder has the right to attend the regular neighbourhood school where this is possible and practicable and in the best interests of the child". The policy goes on to state that strategies for its implementation will be developed in schools and regions, with implementation responsibilities shared between the Director-General, the Special Education Directorate, Regions, and schools.
184.108.40.206 Student Welfare Policy
The Student Welfare Policy (Exhibit 52, pages 388 to 396) states that school communities develop their own student welfare policies and practices within the framework of the Department's policy. Under the heading, "Effective learning and teaching", the policy sets certain objectives, for example, "encouraging students to take responsibility for their own behaviour". Outcomes and results for students are also listed - for example, "Students will participate in decisions about their own learning".
Under the heading, "Positive climate and good discipline", a number of objectives are set, for example, "maximising student participation in decision making and ensuring that principles of equity and fairness are reflected in school practice". Some of the outcomes listed include, "The well-being, safety and health of students and other community members will be priorities in all school policies, programs and practices"; "The discipline code of the school will provide clear guidelines for behaviour which are known by staff, students and parents who have contributed to their development." Some of the results listed include: "Students will be safe in the school environment"; "Students will know what is expected of them and of others in the school community".
There is also a section in the policy headed "Community participation", which talks of, for example, "building learning communities in which staff, students and parents work together for planned results". The policy also talks of the responsibilities of schools (and within them, Principals, teaching and support staff, staff with a specific student support role, students, and parents), districts and state office, in relation to the policy.
220.127.116.11 Procedures concerning suspension, exclusion and expulsion of students from school and declaration of place vacant ("the Discipline Policy")
The Discipline Policy (Exhibit 1, page 112) states at point 3:
"It is essential that suspension, exclusion and expulsion are seen as strategies within the student welfare policy and discipline code of the school. These strategies are to be used only in serious cases of misbehaviour in accordance with these procedures."
The Discipline Policy also sets out other general principles, and procedure to be followed in relation to suspensions - for example, notifying the parents or care-giver in writing of the details of the suspension, convening a meeting to discuss appropriate action and recording action taken in the suspension register. There are also general principles regarding exclusion from school and "declaration of place vacant"
2.6.2 Policies of the School
18.104.22.168 School Discipline Policy 1995
The School Discipline Policy 1995 (Exhibit 52, pages 231 to 245) states:
"School discipline concerns the development of appropriate behaviour in students. It implies the acceptance of self discipline and the ability to distinguish right from wrong."
The policy sets out a list of rights and corresponding responsibilities. For example, "I have the right to be treated with understanding, respect and politeness", and "I have the responsibility to treat others politely and with understanding and respect, regardless of individual differences."
There are school rules, and `student behaviour requirements' for the classroom and playground. There is also a `student management chain', which begins with a warning, then possibly a second warning, followed by relocation within the class, relocation to head teacher, detention, head teacher interview, parent contact, isolation from class in one subject area, followed by an interview with the Principal and parents.
There is a "Level Scheme", from 0 to 5. All students begin on 0, with no documentation and teacher based discipline applying. The "reasons" for placing on "Level 1" (for two weeks) are a major report or several referral slips from a number of sources, and the consequences of being placed on Level 1 included a form letter to parents, interview by Year Adviser and possible after-school detention, for all of which the Year Adviser is responsible.
A student may be placed on Level 2 for two weeks if there is no improvement, or if they have committed a more serious breach of school rules, or engaged in unco-operative behaviour which infringes the rights of others. Placement on "Level 2" has certain consequences, for example, a parent interview is requested, some privileges may be withdrawn, and so on.
The "Level Scheme" continues to "Level 5", for students who have shown either no improvement at Level 4, or deterioration in behaviour. The consequences of a student being placed on "Level 5" are exclusion and expulsion may be considered. The personnel responsible at this level are the Principal, Director, Assistant Director-General, and Minister.
The "Level scheme" policy notes that the Head Teacher Girls and Head Teacher Welfare "monitor the Level Books of students placed on a level. A student is placed on a level, by the Deputy Principal, in consultation with the Level Committee." There is also a guide to the sort of consequences that stem from various forms of misbehaviour. For example, a student leaving the school grounds will be reported to and interviewed by the Deputy Principal and receive an after-school detention in the case of an isolated incident. For a "repeated or more blatant offence", the student's parents may be contacted and they may be placed "on level".
2.6.3 Policies specifically for Daniel
22.214.171.124 Draft Welfare and Discipline Policy for Daniel
As described in the chronology at 2.5.3, the document referred to as the Draft Welfare and Discipline Policy for Daniel (headed "Department of School Education Welfare Policy") (Exhibit 1, page 22) was formulated at a meeting of staff from the School on 19 March 1997. The document begins by stating that:
"The Student Welfare Policy of South Grafton High School has been modified (in keeping with the Department of School Education's guidelines 1996) to cater for the special needs of Daniel Hoggan.
Modification has been necessary in an effort to: -
1. Encompass everything the school community does to meet the personal, social and learning needs of Daniel.
2. Incorporate a revised discipline procedure.
3. Provide programs and support while acknowledge (sic) the differences required for Daniel's education, while maintaining as many social interaction experiences as is possible for Daniel."
The Draft Welfare and Discipline Policy for Daniel states that the "Effective Learning and Teaching Objective" is to enhance effective learning and teaching by, for example, "providing lesson material suitable for Daniel's level", providing support personnel and establishing a Case Management Team. The Outcomes of these strategies are stated as: "coordinated services will provide effective support to classroom programs", and "the learning experiences of Daniel will affirm his individuality and be positive and satisfying". As a result, "Daniel will pursue a program of learning relevant to his needs", and "Daniel will develop further skills for positive social participation."
Under the heading "Positive Climate and Good Discipline", the objective is "to enhance school climate and discipline" by, for example, "ensuring that principles of equity and fairness are reflected in school practice", and establishing clear rules specifically for Daniel by adopting the school rules already adopted by the school and its community".
The Draft Welfare and Discipline Policy for Daniel goes on to say:
"The Case Management Team has developed a set of codes and consequences relating to unacceptable behaviour. Understanding that all behaviour has a purpose it will be necessary for the Team to be aware of instances that may upset Daniel's normal course of behaviour".
A table sets out possible classroom or playground behaviours, and lists consequences. For example, disruptive classroom behaviour such as swearing at students or teachers, unauthorised movement, or unauthorised calling out, have as a consequence: "1. Initial warning; 2. Repeated offence: (a) Withdrawal with Aide to designated room where program is continued for rest of the period. (b) Referral slip detailing behaviour written and sent to Head Teacher for discussion at regular Case Management Team Meetings."
2.7 Expert evidence
2.7.1 Dr Robert Lincoln Jackson
Dr Jackson is the Director of the Centre for Disability Research and Development at Edith Cowan University in Western Australia. Dr Jackson is a registered Psychologist who appeared as a witness for the complainant. Dr Jackson stated that he had met Daniel and stayed overnight with Daniel at his parents' home in Grafton. He commented as follows:
"My experience with Daniel, which is in accord with the report tendered as part of this case, is that Daniel has a range of behaviours that appear to be designed to gain attention. As is normal in such cases verbal rebukes are not effective in controlling the behaviours as they just become part of the attention desired. However, I found that if one set clear boundaries, established an environment where there was ample opportunity for him to gain attention for behaving appropriately and did not respond to negative behaviour, then within a few hours of first meeting him he was responding appropriately and enthusiastically, even when significant intellectual challenges were put to him... Daniel is similar to large number of children that I have seen successfully included in mainstream High School in Australia and overseas."
Dr Jackson explained the concept of inclusion as being composed of eight elements: presence in the regular school activities; curricular inclusion; social inclusion; self-esteem; good social image; teaching relevant skills; potent teaching; and positive expectations. Dr Jackson stated that he did not believe that Daniel's needs could be best met in a segregated unit at another school. Dr Jackson stated that the research literature showed that children such as Daniel do significantly better academically in inclusive rather than segregated settings such as the units. Dr Jackson also stated that children who grow up with their peers are much more likely to gain and hold a job and that children who come from segregated schooling are much more likely to end up in sheltered employment.
2.7.2 Ms Deborah Knight
Ms Knight is a Clinical Psychologist and appeared as a witness for the respondent. In her first statement Ms Knight stated that she had been employed as a Clinical Psychologist and Director of the Dalwood Assessment Centre since 1992. She states that the centre in conjunction with Palm Avenue School provides an assessment and treatment service for children and adolescents who are experiencing severe learning, communication, and/or behavioural and emotional disorders. In her clinical role, Ms Knight states that she is responsible for conducting psychometric, educational and behavioural assessments of the students referred to the centre and, in liaison with the students' parents and teachers, for formulating appropriate home and school based treatment and management plans.
On 7 May 1999 Ms Knight conducted an assessment of Daniel at his family home. In her assessment findings, Ms Knight described Daniel as presenting as a well mannered and quick to engage boy. She noted the limitations in his conversational skills once topic content moves beyond welcoming formalities. Ms Knight stated that Daniel was cooperative during formal testing and displayed an interest in the testing materials. She noted that Daniel fatigued quickly and struggled to sustain focused attention after approximately 20 minutes, so testing was completed over two sessions.
Ms Knight administered the verbal scale of the Wechsler Intelligence Test for Children: Third Edition. She stated that estimates from a verbal scale have a high predictive validity for school based learning ability. Ms Knight stated that results on testing indicated that Daniel's verbal ability is in the moderately intellectually delayed range or, for peer comparison purposes, at the 0.1 percentile for his age. Ms Knight also states that Daniel could not accurately complete any items involving basic numeracy skills. Ms Knight states that Daniel demonstrated no functional literacy skills. She further stated:
"Daniel's communication, daily living/self help and socialisation skills were found to be significantly impaired with functioning placed at approximately 4-year old age level. His social and conversational skills are limited."
In her statement Ms Knight goes on to discuss the implications of the above finding. She states that it is widely documented that students with an intellectual disability in the moderate range rarely develop literacy and numeracy skills beyond a basic functional level:
"For Daniel, whose disability extends in the lower Moderately delayed range and who currently has no demonstrable academic skills, any implication that he can effectively learn to read and perform arithmetic function is both unsubstantiated and places unrealistic expectations on Daniel himself and those responsible for his instructional program... There are clear indications, on reading Mr Jackson's statement, that his arguments in support of a mainstream placement for Daniel, are based on an unclear knowledge of Daniel's intellectual and adaptive behaviour capabilities."
Ms Knight recommends Daniel's placement in a support unit. She states that:
"His presence in a stable classroom with a smaller peer cohort and with instruction provided by a single, skilled special education teacher should also help to minimise the evident distress he has experienced at school in the past with a schedule that requires regular movement between classes."
In relation to Ms Knight's report, Mrs Purvis states (Exhibit 34, para 5):
"I believe that Mrs Knight has not taken into account the fact that Daniel had a cold that day (she was aware of this), the fact that Daniel was anxious and later very tired, and that it was a stressful situation for him."
2.7.3 Mr Alan Andreasen
Alan Andreasen is a consulting Clinical Psychologist who prepared a report on Daniel in August 1994 at the request of Mr and Mrs Purvis.
Mr Andreason's report states that Daniel was seen at the request of Mr and Mrs Purvis first at their home and subsequently at Mr Andreasen's clinic for psychological assessment in relation to the Purvis' application for Daniel to be enrolled at Gillwinga. In his report Mr Andreasen states that the initial intention was to attempt to administer the Stanford-Binet Test of intellectual and cognitive functioning. However, Mr Andreasen states that he believed that Daniel was not capable of the sustained attention and response to directions that will be necessary for the validity requirements of this test to be satisfied therefore he assessed Daniel based on two hours of observations of Daniel's interactions with him and with Daniel's family, of his drawing, of his response to questions and inquiries, of his knowledge of books and tapes of which he was familiar, and of his general ability to continue complex interaction within the assessment session for a two hour period.
Mr Andreasen notes that he has read the 21 page typed written response by Mrs Purvis to his request that she write down some of the strategies that the Purvis' had developed for accessing Daniel and for managing his behaviour and for bringing out the best for him in terms of his intellectual and cognitive abilities:
"I would want to say at this point that Mr and Mrs Purvis have been outstandingly successful with Daniel as reflected both in strategies they have developed for living with him and providing optimal conditions for his development personally, socially and intellectually, as well as a real improvement in his neurological status."
In the section of his report headed observations and findings upon examination, Mr Andreasen states:
"Daniel's vocabulary was notably variable and of a good quality and more consistent with a normal child of his age than a severely intellectually handicapped child of his age. He was observed to initiate conversation including reasonably sophisticated words and concepts and conversations were generally interactive rather than autistic... the limitations in Daniel's conversations, verbal descriptions and verbal interactions were that they were rather short and Daniel's attention would change from a conversation or inquiry back to his drawing without any apparent relation to whether the conversation had finished, whether the inquiry was completed or whether the other person had finished or not."
In the section headed conclusions and recommendations Mr Andreasen states:
"It would seem that there might be some value in seeing Daniel as a brain damaged child rather than a severely intellectually handicapped one. His particular weaknesses appear to be in the area of sustained attention, a slow development of his sense of himself and of the ability to describe his own needs to others, his slowness of visual perception and visual concept formation and his general motor control integration. His high level intellectual function shown by his vocabulary and level of abstract thinking and conceptual understanding are considerably better than those of an intellectually handicapped child... Daniel's foster parents would be the best source of illustrative strategies for accessing Daniel and managing his behaviour and emotions. Daniel needs to be challenged to learn things and I would see the purpose and value in the mainstream educational process as providing some of this challenge albeit with extremely limited expectations in terms of any formal curriculum."
2.7.4 Mr Norman John Lord
In May 1997 Mr Lord was a Psychologist employed by the NSW Department of Community Services. In May 1997 he prepared a report (Exhibit 42) regarding Daniel which states that he was asked to see Daniel "to consider possible support that may be required for this family to sustain the care of Daniel."
Mr Lord states that:
"Daniel's intellectual ability is well below his peers. This is evident in the quality of his classroom efforts. The school counsellor administered the Peabody Picture vocabulary test to Daniel and concluded he is functioning around two years 9 months of age with his receptive language skills. However these results, on their own, should not be considered a comprehensive assessment of Daniel's level of disability as Daniel's score fell below the basal level measure by this test. Also Daniel's impaired vision would have reduced his performance on this particular test. Daniel's efforts with his mathematical skills were very basic. I gather from the school counsellor's report that Daniel is able to count to 12 but it is not clear that he perceives the relationship between numbers and items."
In his statement Mr Lord says that he does not agree with Ms Knight's conclusions that Daniel's best interests would be served in the support unit at Grafton High School. He states that:
"Daniel is a relationship focused child and also has a tendency to imitate behaviours. His contact with peers who are not diagnosed with disability is essential for Daniel to develop appropriate behavioural norms and social integration. This would be most effective with significant periods of inclusion into mainstream classes with programs adjusted to permit his inclusion in normal activities."
2.7.5 Ms Carrie Brooks
Ms Brooks was a Program Officer with the Department of Community Services, Far North Coast in 1997. She prepared a document headed "Interim Report Daniel Hogan 18 September 1997", which begins:
"Daniel is a twelve year old young boy who was referred to the programming team for management strategies for a number of identified behaviours of concern.."
Some of the identified behaviours which Ms Brooks lists include swearing, kicking walls and furniture, hitting people, refusal to attend school and deliberately wetting himself, refusal to attend class, physical aggression against school staff. The report states that Ms Brooks' assessment consisted of a functional analysis completed by Daniel's foster parents; a functional analysis completed by Daniel's aides at school; direct observation of Daniel in the classroom situation over two mornings; direct observation of Daniel in the playground; an anecdotal report from the District Officer case managing for Daniel; review of report from Mr Lord; review of report from Mr Andreasen; minutes of the case meeting held on 8 August 1997; and the school welfare and discipline policy. Ms Brooks identified certain behaviours and when they are most likely and least likely to occur. She then identifies functions of behaviour under the headings "behaviour achieves and avoids". She lists previous programs which have been tried with Daniel and makes various recommendations:
"Recommendations are designed to address the functions of the behaviours by making some environmental changes, increasing alternative communication skills and providing opportunities for stress relief."
For example, Ms Brooks recommends an alternative functional communication strategy for Daniel when he starts to exhibit any of his behaviours indicating anxiety or inability to concentrate. Ms Brooks suggests asking Daniel "Daniel do you need help? Yes or no?" She suggests continuing to prompt Daniel for a response waiting for approximately five seconds for him to respond. If Daniel doesn't respond, Ms Brooks suggests saying to him, "Okay, I will help you" and starting to provide support to him.
Ms Brooks states that Daniel's timetable at school needs to be made more accessible for him. She suggests that an enlarged written version of the timetable be produced using colours to indicate each lesson. Ms Brooks states that she would like the aides to trial packing up early before the end of class. Ms Brooks makes various other suggestions including the use of a good behaviour book where Daniel receives a sticker for being good, for example, for completing his work and for not displaying rocking, teeth clacking or disruptive behaviours and proceeding to class without incidents. She states that positive reinforcement needs to be provided verbally, intermittently, throughout each teaching session. She states that it should be reinforcement relating directly to behaviour, for example, "I like it when you sit quietly".
Ms Brooks summarises her recommendations by stating that:
"The identified function of Daniel's behaviour is avoidance and attention. These guidelines are designed to provide some environmental changes to provide more predicability, choice and intrinsic rewards to Daniel's day. Currently Daniel's ability to learn is being hampered by his behavioural outburst which in my opinion are the result a lack of predicability in his day and frustration with participation in a number of activities that are not intrinsically rewarding for him."
2.7.6 Professor Trevor Parmenter
Professor Parmenter is the Foundation Chair in development disability, Faculty of Medicine, University of Sydney and Director, Centre for Development Disability Studies, Royal Rehabilitation Centre, Sydney. Professor Parmenter states (Exhibit 60):
"My experiences as a teacher, principal, teacher trainer, researcher and a well travelled observer of special education programs in developed and developing countries lead me to make the following observation concerning the factors essential to the successful inclusion of students with disabilities into regular classes. These factors are not necessarily listed in order of importance, but should be included together.
* a supportive school climate towards diversity in the school population - this relies heavily upon the leadership qualities of the School Principal and the School Council.
* teachers who possess sound instructional and learning skills which can adapt to individual student's needs. For some students these skills may need to be quite sophisticated and one would not suspect all teachers to possess them. At many universities there are courses at Special Diploma and Masters level which include tuition in these skills. Teachers in regular training programs certainly do not acquire these skills which include topics such as: the functional analysis of behaviour, specific teaching and learning skills for students with cognitive impairment, curriculum development and modification, needs assessment, program planning, special curriculum evaluation strategies, collaborative teaching; and a knowledge of health needs of children with specific impairments such as epilepsy and those with this dual diagnosis of intellectual and emotional problems.
* a school with adequate physical access.
* the presence of at least one teacher with special education skills who can act as a support and mentor to the regular class teachers and who can support families as partners in the educational process.
* a school which can adopt an inclusive curriculum approach so that students with diverse educational needs can access the same broad key learning areas...
* the development of a sound educational plan which is based around the long-term goals for the disabled student and not simply on current skill deficits. This approach is known as "personal futures planning".
* a school which has a flexible organisational structure.
* a school which has a good school support program."
In his statement Professor Parmenter goes on to say:
"I can cite opposing research to that referred to you by Dr Jackson concerning the lifelong impact of `segregated education'. Longitudinal data from carefully designed studies collected by my team at Macquarie University indicated very strongly that students who had been provided with a comprehensive transition program, including work experience had a better subsequent employment program than students who had not had such a program. The results further indicated that it was students from special education units and special schools who have received the more comprehensive transition program. These results highlighted the nub of the issue on discussion. It is the type and quality of education program that a student receives rather than the educational setting alone. The USA public law 94-142 introduced the term `least restrictive alternatives' to indicate that the student should be placed in an environment that is as `normal' as possible."
Professor Parmenter states that the assertion by Dr Jackson that literature shows that children such as Daniel do significantly better academically in an inclusive life than segregated settings, is unsupported. Professor Parmenter also states that Dr Jackson's assertion that children who grow up with their peers are much more likely to gain and hold a job is in many respects an invalid statement. Professor Parmenter states the assertion that segregated education is counter to later societal inclusion is partly predicated on the philosophical rather than empirical.
Professor Parmenter states that he finds it difficult to envisage that Daniel could be successfully integrated into the School, even if further facilities were to be made available. Professor Parmenter goes on to comment on the current climate between the School and the parents; some of the changes that would be needed, for example, an intensive staff development program for all teachers associated with Daniel; a special education teacher within the school to support the planning and execution of Daniel's educational program and to support his individual teachers; a reassessment of his overall program; and a further analysis of the effects of Daniel's presence in the regular classes.
Professor Parmenter states:
"Decisions for integration are made on an individual basis after an assessment of educational needs has been made. The principle of `the most advantageous educational environment' is applied in the context of available resources."
2.7.7 Dr Graham Alan Wise
Dr Wise prepared two neurological reports of Daniel which were referred to in the discussion of Daniel's disabilities in 2.2. The first neurological report was prepared in July 1997 and the second in January 1998. Dr Wise is a child neurologist at Sydney Children's Hospital. In relation to Dr Wise's assessment of Daniel's future neurological status, in his cross-examination Dr Wise said as follows:
"I think most of his neurological problems will be very stable from this point. I think even when you have a significant degree of handicap, but it's from a past static injury, they will continue to be able to adjust for the problems that they have to a certain degree, but they are not going to make a great leap forward in intellectual ability. Their behaviour may become a little tractable and may become more knowing of the world and incorporate this into their functioning. But their not going to get a major increase in intellectual capacity from this time on."
2.8 Teacher assessments and observations
2.8.1 Evaluation sheets
In the minutes of the meeting of the staff development day held on 7 April 1997 for Daniel's Year 7 teachers, the development of a progress sheet was discussed. The minutes note that:
"The sheet below was developed at least as a temporary measure, to monitor Daniel's in class progress. Each teacher should have a supply of these sheets. They should be filled in each lesson without it becoming a chore. They should be placed in Anne Fitzmaurice's pigeon hole, as regularly as possible (weekly at the outside) Anne will be collating."
The form set up a table inviting teachers to grade Daniel on his participation, cooperation, understanding, and behaviour at 20-minute intervals during the class. Daniel was to be given a rating of -2 (very poor), -1 (poor), 0 (average), +1 (good), or +2 (very good). It appears that only Mr Trudgett, Daniel's science teacher, regularly completed these forms.
The forms completed by Mr Trudgett show a variety of ratings assigned to Daniel's behaviour ranging from a comment on 22 August 1997 that Daniel was "reluctant to come in, unsettled, wandering around, settled down by 10 to 40. A Fire drill - Dan extremely unsettled - kicked aid, elbowed student etc"; to a form completed on 6 June 1997, when Mr Trudgett comments that Dan was "doing class work" and rates his participation both at 20 minutes and at 40 minutes, as good, his cooperation at both intervals as good, his understanding at both intervals as average and his behaviour at both intervals as very good. On this day Mr Trudgett has written, "Very good for Dan".
2.8.2 Half-yearly reports
In May 1997, some of Daniel's teachers prepared half-yearly reports for him. In Science and Music his teachers commented that Daniel appeared to be working to the best of his ability. His teachers for Art, English, and Indonesian commented that he enjoyed participating. In Personal Development, Health and Physical Education, his teacher commented that he has been unable to assess Daniel "due to his lack of participation in assessable tasks".
2.8.3 Mid-term evaluations
In May 1997, most of Daniel's teachers completed a mid-term evaluation of him.
In the subject Personal Development, Health and Physical Education, Mr Perl said that Daniel did not settle into the class routine. The teacher said that he was withdrawn for remedial work, and has not been benefiting or learning in this class. Although he was "treated as another class member" he "receives no extra time and no less. As a result, Daniel doesn't receive the time he needs".
Daniel's teacher, Mr Jubb said that Daniel did settle into the class routine "In the sense that he is cooperative' and that he didn't, in the sense that "he usually did not take part in what the others are doing". The teacher said that Daniel had created a greater workload, although marginally so, because he "needed to continually keep an eye on him in class". The teacher noted that Daniel's effect on the class was a mixture of positive and negative and also as having no effect. The teacher noted also that Daniel was not benefiting from his class, although he had not changed the way in which he taught his class.
In the subject, Home group, Daniel's teacher Ms Court makes the comments that Daniel has not settled into the class routine, and is withdrawn for remedial work as "concepts for Home group are beyond his understanding". The teacher says that Daniel's effect on this class is disruptive and she feels that Daniel is not benefiting from the class.
His Science teacher, Mr Trudgett says that Daniel has not settled into the class routine and "needs continual guidance/direction". He states that Daniel's enrolment has created a greater workload for him as the teacher, although, to date, he says Daniel seems to have no effect on his class "both positives and negatives seem to be balanced".
The music teacher, Mr Miller says that Daniel has not settled into the class routine. Daniel has not participated in all of his music lessons, and he feels Daniel "isn't really learning at all". Mr Miller states that Daniel has created a greater workload for him because of the "extra monitoring of class".
In Maths, Daniel's teacher, Ian Zuill states that "Daniel is working well in class". Although he is withdrawn from remedial work, Daniel has not created a greater workload, or changed in any form the way in which Mr Zuill teaches his class. Mr Zuill feels that Daniel has had no effect on the class, but is unsure if he is actually learning or benefiting from his class.
In his LOTE (Languages other than English) class Daniel's teacher, Mark Avery, states that Daniel has settled into the class routine and attends all the lessons. Daniel has, however, created a greater workload for the teacher and has a disruptive effect on his class. Mr Avery says that this effect is "not so much his behaviour but the background noise created by the continued dialogue between he and aide" as the teacher claims "most work needs to be done by aide".
His Library teacher, Ms McBeath, agrees that Daniel has settled into class routine although he "rarely attends" because he is withdrawn for remedial work.
In the subject `SRE' Daniel's teacher, Mr Murray says that Daniel has settled in and has been able to attend all lessons of this class. The teacher notes that Daniel has created an extra workload for him as he spends "approximately ¾ of an hour preparing special sheets (each week)". Mr Murray is unsure if Daniel is benefiting from this class although Daniel has no effect on the class or the way in which Mr Murray teaches his class.
In the subjects Humanities and History, Ms Durant is unsure if Daniel is learning anything from her class. His presence in her class has made a difference to the way she teaches the class, in that she has second thoughts about doing oral work because of the noise that Daniel and his aide make. She says, " I can't really afford to direct much attention towards Daniel as there are a few in the class that require constant monitoring to ensure behaviour is acceptable and work is done".
Again in Humanities - History, Daniel's teacher Ms Ebeling feels that Daniel does arrive on time and settles into the class and commences his work but says "it could hardly be classified as our class routine". She feels that Daniel has a disruptive effect on the class as "the aide is constantly communicating with him while I am speaking to the class". Ms Ebeling states that she prefers "to teach a class which is sitting quietly without anyone speaking and I find Daniel's integration extremely distracting due to the constant communication needed".
Daniel's English teacher, Ms Beletich feels that Daniel has settled into the class routine. However, Daniel seems withdrawn for remedial work and is unsure what effect Daniel has on the class "At times discussions with the Aide can get noisy - which is distracting (mostly for me)". She is also unsure whether Daniel is benefiting from her class: "I do have concerns for Dan. I believe he often feels `lost'; he is sensitive enough to know he is different and his attitude reflects this".
Ms Fitzmaurice (the year 7 Adviser in 1997) reports that Daniel creates a huge amount of work for her in terms of "coordinating staff, aide and management concerns, monitoring Daniel, checking Distance-Education material" she feels that it is "presently impossible" to spend any more time on Daniel.
2.8.4 Distance Education Support Unit Reports
In June 1997, Ms Fisher from the Distance Education Support Unit (the DESU") prepared a report for Daniel. This report summarised the work Daniel had covered in English, Mathematics, Science, Human Society and its Environment, and Design and Technology and the skills and knowledge gained. In her additional comments, Ms Fisher noted that:
"Daniel has coped well with the DESU programs that have supported Year 7 topics covered in the above Key Learning Areas. He has tried hard and appears to have gained some understanding of most subjects. The excellent support that he has received in the classroom has enabled him to complete activities relating to topics at his level and to access class discussions with some comprehension".
The DESU also provided a Yearly Report for Daniel for 1997, in which his achievements in each Key Learning Area are reported as outcomes (Exhibit 52, pages 1327 to 1332). In relation to English, Ms Fisher reported that "Daniel has participated at his own level... In Term 3, he completed work around a film study of `The Princess Bride' and demonstrated some understanding of the main events occurring in this film." Ms Fisher commented on his mathematics program that Daniel continued to practice counting skills and to develop basic mathematical concepts and appears to enjoy the activities in this area. In her final comment, Ms Fisher states:
"During Daniel's attendance at school this semester, his DESU program has attempted to continue the development of his basic skills while assisting him to access, at his own level, topics being studied in his Year 7 classes. Returned work and comments from his tutors have indicated that this has sometimes been achieved and that Daniel's knowledge and understanding of some topics has increased. However, some concepts are very difficult for Daniel and inappropriate to his level of development, causing him considerable frustration. His basic skills continue to develop slowly but require a greater focus if any real progress is to be made."
2.8.5 Yearly Report from School - December 1997
As noted in the chronology at 2.5.6, in mid-December 1997, most of Daniel's teachers prepared a yearly report for him.
Ms Fitzmaurice, the Year 7 Adviser, wrote:
"Daniel's progress has been very difficult to monitor and assess, due to his inability to perform most of the mainstream curriculum delivery. Distance Education has assessed and reported on his progress in that area".
Daniel's teachers completed a form headed, "Daniel Hoggan's Individualised Outcomes Assessment Performance Indicators". They were asked to grade him on a scale of 1 to 5, one being excellent, two good, three satisfactory, four poor and five unsatisfactory, in the following eleven areas and sub-areas:
1. Is working well on the program provided by Distance Education
2. Daniel is able to join in:-
* class discussions
* class activities
Brief description of sample task:-
3. Daniel is able to socially interact with other class members
4. Daniel is able to work without his Aide on some class tasks
Brief description of sample task-
5. Daniel's work habits are:-
* works well with others responds to teacher's directions
* attends all classes
* behaves appropriately in class
* completes required work set by Distance Education
* completes required work set by class teacher
In English, Ms Beletich graded Daniel `satisfactory' in five of the above areas, `poor' in four areas and `unsatisfactory' in two areas. She noted, "Daniel has great difficulty relating to the environment and those in it", and "Daniel is unable to complete any task without his Aide".
In Science, his teacher graded Daniel `satisfactory' in two areas, `poor' in seven areas, and `unsatisfactory in two areas. Sample tasks described were "Colour the object that does not match (with vertical prompts)", and "Classify buttons, sorting into groups".
In Maths, Mr Lang reported that Daniel was performing at a `good' level in one area, was `satisfactory' in two areas, `poor' in two areas and `unsatisfactory' in six areas.
In Geography, Ms Ebeling graded Daniel as `poor' or `unsatisfactory' in all applicable areas.
Daniel's teachers in Design and Technology, Library, Japanese, Art and `Personal Development, Health and Physical Education' reported that they did not receive programs from Distance Education. In Design and Technology, Daniel was graded `satisfactory' in three areas, `poor' in four areas, and `unsatisfactory' in two areas. His teacher commented that he was unable to complete the majority of tasks set and is very dependent on aide for 99% of transfer.
In Library, Daniel was graded `poor' in six areas and `unsatisfactory' in four areas.
In Japanese, his teacher rated him `unsatisfactory' in all areas. In Art, Daniel was awarded a `satisfactory' in two areas, `satisfactory to poor' in one area, `poor' in four areas, and `unsatisfactory' in two areas. In `PD/H/PE', Daniel was graded as `poor' in five areas and `unsatisfactory' in four areas.
3. STATUTORY PROVISIONS
The provisions of the Act relevant to this decision are sections 4, 5, 10, and 22(2). They are set out below.
Section 4 provides in part that:
disability, in relation to a person, means:
(a) total or partial loss of the person's bodily or mental functions; or
(b) total or partial loss of a part of the body; or
(c) the presence in the body of organisms causing disease or illness; or
(d) the presence in the body of organisms capable of causing disease or illness; or
(e) the malfunction, malformation or disfigurement of a part of the person's body; or
(f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
(g) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;
and includes a disability that:
(h) presently exists; or
(i) previously existed but no longer exists; or
(j) may exist in the future; or
(k) is imputed to a person.
Section 5 provides:
" (1) For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
(2) For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability."
Section 22(2) provides:
"It is unlawful for an educational authority to discriminate against a student on the ground of the student's disability or a disability of any of the student's associates:
(a) by denying the student access, or limiting the student's access, to any benefit provided by the educational authority; or
(b) by expelling the student; or
(c) by subjecting the student to any other detriment."
4. SUBMISSIONS OF THE PARTIES
4.1 Complainant's submissions
The complainant's submissions state that the respondent has sought to highlight the fact that Daniel was not able to participate in the Year 7 curriculum at the level of other students. The complainant states that:
"There is no disagreement between the parties about Daniel's ability to participate in all of the year 7 curriculum. Considering all the evidence, there was never any expectation on the part of any person who was involved in the process of admitting Daniel to SGHS that he participate in the year 7 curriculum at the level of other year 7 students."
The complainant notes that Mr Bartley's plan for Daniel's integration was "a researched, thoughtful and comprehensive document." The complainant notes this document was prepared after consultation within the School and identified what resources would be needed for Daniel's placement at the School:
"However, Mr Bartley did not consult with Mr Bob Field the special education consultant. At that time, Mr Bartley was new to the school and unaware of all the available resources. It also appears that the plan did not take into account the existing Departments Special Education Policy: Exhibit 86. This plan was never implemented in full and key recommendations were not accepted."
The complainant alleges that there was little preparation for the teachers, prior to Daniel commencing in April 1997:
"The teachers evidence reveals that there was no clear understanding as to whether they were to modify the existing program, administer work provided by DESU or undertake some other methods for teaching Daniel. Some teachers assessed him on the same work and in the same way as other students. Some teachers modified their own programs and others did nothing different."
In relation to the assessment forms that were completed in the main only by Mr Trudgett (the complainant alleges that other teachers such as Ms Court completed them only when they reported poor conduct, or occasionally completed them):
"The forms themselves reveal that at times Daniel's behaviour was excellent. Yet, these forms were relied on by Mr Bartley in justifying his decision to exclude Daniel. The very tool designed to assist Daniel was used against him."
The complainant notes that there was no orientation transition program put in place to assist Daniel during the initial days of Daniel's attendance at School.
The complainant notes that neither Mr Garrard nor Mr Callan was called by the respondent as witnesses:
"In 1997, this was the only report prepared which attempted to identify all of the relevant personnel, consult with those persons and then identify problems and devise a way forward. It offered the principal a way out of the ad hoc meetings and discussions which had characterised the management of Daniel from mid-1997. This was the only time that specialised Department of Education personnel came to SGHS... Mr Phillip's criticisms of the report - a failure to consult and a failure to appreciate the complexities - are not valid criticisms and cannot be supported when one considers the experience of these men, the nature and extent of the consultations and the methods that they use, as recorded in their report."
In relation to the Draft Welfare and Discipline Policy for Daniel, the complainant firstly states that:
"At the outset, those who are best placed to participate in the process were not consulted. The policy was formulated without seeking an expert input and was based on how Ms Donsworth thought Daniel might behave. Many involved in the formulation of the policy had not met Daniel."
Secondly, the complainant alleges that the Draft Welfare and Discipline Policy for Daniel lacks flexibility in that there were no modifications to it during 1997 and that:
"To provide Daniel with something less than the whole deprive him of the benefits of a comprehensive and sensitive welfare policy. The parts that were removed were those parts which enabled flexibility...
Daniel was the only student not entitled to the benefits of the Department's general welfare policy - he received something less than everyone else. In doing so he was treated less favourably than the other children... Mr Lord observed that the special policy for Daniel was based on a model of action/consequence/tolerance levels. The meaning of the behaviours were not being addressed, only the outcomes the behaviour. It is not an appropriate model for Dan."
The complainant states that if amendments were required, they were required for the School Discipline Policy 1995, and that there were no amendments to this policy for Daniel:
"In fact the evidence supports that it was applied more harshly to him. When one compares the list of behaviours which was assumed that Daniel might exhibit and the consequences/tolerance levels, of the behaviours and tolerance levels in the SGHS discipline policy, then it is clear that consequences for Daniel were more severe. The level system in the SGHS policy was applied to Daniel in a more rigid manor compared to other students."
In relation to the alleged unlawful discrimination the complainant refers to several overseas authorities. The complainant alleges that Daniel has been treated less favourably within the terms of s.5(1) of the DDA. The complainant alleges that the respondent has breached s.22(2)(a) and or s.22(2)(b) of the DDA by excluding Daniel from the School on 3 December 1997. The complainant alleges that the respondent breached s.22(2)(a) of the DDA by suspending Daniel from the school on five separate occasions: 24 April, 7 May, 30/31 July, 3 September and 18 September 1997. The complainant also contends that the respondent has discriminated against Daniel in breach of s.22(2)(c) of the DDA by subjecting Daniel to a detriment in his education. It is alleged that those detriments are: failing to make a proper assessment of Daniel's needs on admission as a student at the School; failing to provide Daniel with an orientation on his commencement; failing to implement the principal's recommendations to accommodate Daniel; failing to adjust the welfare and discipline policy to address Daniel's needs and behavioural patterns when the need arose; failing to develop a set of guidelines in accordance with the welfare and discipline policy; failing to provide Daniel's teachers with training or an awareness program to assist them teach Daniel; failing to obtain the assistance of experts in special education or behaviour to assist the School develop a program to accommodate Daniel; failing to assess Daniel between 18 September 1997 and 3 December 1997 to address the reasons for the suspension and appropriate actions to be taken; failing to inform the complainant and Daniel that he had been excluded from the School on 3 December 1997; and failing to follow the School's policy for dealing with excluded children and facilitating Daniel's return to the School.
The complainant alleges that it became clear during the course of the hearing that the nature of the modification to the Department's Student Welfare Policy had the effect of denying or limiting Daniel's access to a benefit provided by the respondent, namely an entitlement to be treated in accordance with the relevant and applicable school policies. The complainant alleges that this was a further ground for unlawful discrimination within s.22 (2)(a) of the DDA. It is further alleged that the failure of the respondent to accord Daniel the benefits of the Departments Special Education Policy had the effect of denying or limiting to him a benefit provided by the School, in breach of section 22(2)(a) of the DDA.
The complainant alleges that Daniel was excluded from the School on 3 December 1997 because of his disability. The complainant states that no other child in year 7 was excluded from school in 1997, for any reason, and that Daniel was treated less favourably than other year 7 students were. The complainant also contends that suspending Daniel for disturbed behaviour constitutes less favourable treatment because of his disabilities. For the purposes of establishing a comparator the complainant points the Commission to Ms Fitzmaurice's 1997 diary which records behaviour issues of year 7 students. The complainant submits that Daniel was treated less favourably compared to those students in Ms Fitzmaurice's diary because he was suspended and they were not. It is alleged that this less favourable treatment was compounded by the fact that Daniel's conduct was more closely observed and analysed than that of any other child. It is alleged that the respondent's failure to have a proper program in place for Daniel subjected him to a detriment in his attendance at the School for the purposes of s.22(2)(c). It is alleged that failing to provide the guaranteed services and facilities, such as those set out in Mr Bartley's plan, subjected Daniel to a detriment in his education.
4.2 Respondent's submissions
In the first part of their submissions the respondent addresses 15 `misconceptions'. The respondent states that the complaint itself and the conduct of the proceedings, or at least parts of it, are based on some misunderstandings of the actual events or on incorrect or inaccurate assumptions. The respondent refers to these in combination as misconceptions.
The respondent alleges that the first misconception is that Daniel's educational progress benefited from his placement in an age appropriate class at the School. The respondent claims that during his time at the School Daniel made little, if any educational progress. As none of the teachers' aides were trained educators the respondent claims that their views about Daniel's progress while working on the distance education material has no appropriate professional basis. The respondent claims that Daniel had no or minimal participation in the class and so achieved no or minimal benefit from his participation in educational terms and that this conclusion is supported by his reports from his teachers. The respondent claims that it is irrelevant whether the distance education unit formed a view about his progress or otherwise, as it claimed that this progress could have been achieved in any setting. It is submitted by the respondent that the only conclusion open to the Commission on the evidence before it is that there was no educational benefit to Daniel from the period of his attendance through joining the year 7 classes.
The respondent states that the second misconception is that Daniel's social skills are more important than his educational progress and these will benefit from his placement at the School. The respondent states that the emphasis of Mr and Mrs Purvis on social skills demonstrates a misunderstanding of both Daniel's own needs and the supposed benefits to be obtained from his placement at the School. The respondent submits that the Purvis' objecting socialisation as a primary role for Daniel while at the School is a fundamental misunderstanding of the role and purpose of a School. It is claimed that there was considerable evidence that Daniel derived little social benefit from his attendance at the School and that there is evidence even from the complainants own witnesses that Daniel was, at least at times, socially isolated.
The respondent states that the third misconception is that the enrolment of Daniel at the support unit at Grafton High School will be detrimental to his academic and social progress. The respondent claims that the evidence about the benefits of mainstreaming is discussed comprehensively by Ms Knight and relates mainly to students with a mild intellectual disability. It is claimed that views held by Mr and Mrs Purvis about the Grafton High School support unit are not based on any proper assessment of the facts.
The respondent states that the fourth misconception was that there was a `blame the victim' approach and `it was somehow all Daniel's fault'. The respondent states:
"The approach of the school and the department has always been that if Daniel is to remain a placement at SGHS or any other mainstream school, then he must be able to be a full member of the school community. This means taking responsibility for his own actions and behaviour and the results of them. His disability does not exclude him from the boundaries which exist for all students."
It is submitted by the respondent that there was no attribution by the School or the department overall of Daniel as a "victim" who should be or was "blamed". The approach it is claimed was at all times positive but to acknowledge those apparent difficulties and endeavour to deal with them in order to resolve them.
The respondent states that the fifth misconception is that Daniel "has already shown he is able to survive and thrive in a mainstream environment, and that is not the problem". It is stated by the respondent that Daniel did not thrive when at the school, either socially or educationally and that he did not want to be there and manifested his rejection of the school environment in a number of ways.
The respondent states that the sixth misconception is a further misconception that it was the suspensions themselves, which were the causal link with the deterioration in Daniel's behaviour. The respondent claims that the suspensions were the direct result of the deterioration of Daniel's behaviour, rather than the cause of it. It is claimed that his acting out anti social behaviour in the classroom and the general school environment were indicators of his level of stress in being forced into a place where he increasingly felt isolated and his self-esteem was eroding. The respondent submits that the deterioration in Daniel's behaviour caused the suspension and ultimate exclusion and not the suspensions, which caused the deterioration of his behaviour. It is claimed that this is a demonstration of Daniel's lack of capacity to deal with the demands of high school life, if he is unable to process a relatively simple matter of action leading to outcome.
The respondent states that the seventh misconception is that there is some person or persons who can be blamed for the breakdown of Daniel's placement:
"The issues arising with Daniel's placement are complex and difficult. While requiring some level of resources for a continued, long term placement, that is not the most important issue. There is a shared responsibility between the school community, the home community and Daniel himself. These must be able to work cooperatively for any achievements to occur. It is submitted that Ms Fitzmaurice has been unfairly identified as the "culprit".
The respondent states that the team was headed by Mr Bartley and that this is where responsibility and accusations must be made.
The respondent states that the eighth misconception is that any comments about Daniel which were less than 100 per cent positive are construed as negativity. It is claimed that at all times the Purvis' have down played both the degree of Daniel's intellectual disability and his behavioural problems. The respondent states that the Purvis' immediate and sometimes emotional reaction to any adverse comment regarding Daniel means that there was closed dialogue only. It is claimed that one of the major on going barriers between the Purvis' and the School was the inability of the foster parent to engage in a realistic thick dialogue, which permitted an open discussion of the real problems which were arising.
The respondent states that the ninth misconception is that the curriculum at the support unit at Grafton High School teaches only social skills and that these can be taught at home.
The respondent states that the tenth misconception is that the Teachers' Federation at the School was making the decisions in relation to Daniel's enrolment and return to School. The respondent states that the eleventh misconception is that antagonism to Daniel's enrolment by a number of key people at the School and a negative mythology of disability and difference exists among some in the educational community at the School.
The respondent states that the twelfth misconception is that the complaint which is the basis of these proceedings is that the School has discriminated against Daniel in various different ways including inadequacies in programming support, yet there is no criticism of the principal. The respondent state that if the School was discriminatory as contended by the complainant, then the responsibility for those acts of discrimination which are denied by the respondent, rests with the principal. He is responsible for the performance of the School and for any actions within it.
The respondent states that the thirteenth misconception is that Daniel's attendance at Gillwinga Primary School was an overwhelming success.
The respondent states that the fourteenth misconception is that there is no limit to the amount of resources the department should make available to maintain Daniel's enrolment at the School.
The respondent states that the fifteenth misconception is that different behaviour strategies were implemented at the school:
"The criticism made of the principal and/or the school in not obtaining the use of experts in special education to assist the school to develop a program to accommodate Daniel is based on an assumption that is inherently invalid.
It assumes that there are no parental responsibilities for the way in which students conduct themselves when at school and in some unexplained way, the school operates in a vacuum and takes on all the issues relating to the student's behaviour...
If read in abstract, it could be assumed that the unacceptable behaviour which Daniel manifested on some occasions at school was only manifested there and at no other place, particularly at home."
The respondent discusses the evidence of Dr Jackson, Ms Knight and Professor Parmenter and also the other teachers. The respondent is critical of the evidence of Dr Jackson claiming that parts of the report were plagiarised and that the report contained no citations for all the references he included, as is usual in academic work. It is claimed that Dr Jackson's evidence was vague, general, lacking specificity and that Dr Jackson had published no peer reviewed articles on integration. The respondent submits that the evidence of Dr Jackson should be entirely discounted by the Commission and no reliance placed upon it.
In relation to the relevant statutory provisions the respondent submits that the various tests have not been established as a question of law and alternatively as a question of fact. The respondent contends that any other student who had behaved in the same or similar way to Daniel would have been excluded earlier than Daniel. The respondent states that a causal nexus must be established between the person with a disability and the decision or action as required by the comparison with a person without a disability. The respondent referred me to various cases and submits that as a question of law the complainant has not demonstrated the causal nexus necessary to establish a breach of s.5(1).
In relation to the issue of Daniel's exclusion from a school, the respondent states that "that Daniel has been excluded appropriately within the terms and the intent of the relevant policies. Further, the act of exclusion was not in breach of the Act even if policy was not followed (which is not conceded)."
The respondent states that Mr Bartley did advise Mr and Mrs Purvis that he was "moving to exclusion" on 3 December 1997 and later that day wrote to DOCS as Daniel's legal guardian. This was done on the advice of the legal section of the department. The respondent states that a suitable alternative school placement had already been identified for Daniel and Mr Bartley had ensured that there was a vacancy at the Grafton High School special unit prior to the exclusion being advised to DOCS in December 1997. The respondent states that the place was then available and remains available today. The respondent states that the issue arising from Daniel's behaviour was the safety of other students and staff. The respondent states that an application of the "but for" test shows that the reason or even part of the reason was not Daniel's disability. It is stated that no other student in year 7 or in the School overall had hit a member of staff in an unprovoked attack. Therefore it is submitted that the fact that no other year 7 student was excluded from the School, is irrelevant:
"The effect of the complainant's submissions is that it does not matter what Daniel does or how he behaves within the school community, he is not obliged to be part of the standards and practices of the school because of his disability and hence he is, in effect, allowed free range. If he injures another student or a member of staff that, apparently is cause for a moment of passing regret but because of his disability, the school can do nothing about the matter."
It is submitted that the Act was designed to eliminate as far as possible discrimination against persons on the ground of disability in the area of education. The respondent states that the explicit recognition that there are limits to the extent of the legislative coverage is further recognised in the definition of direct discrimination on which the complainant relies.
In relation to the suspensions the respondent submits that none of these constituted less favourable treatment within the context of the school and the outcome of equivalent behaviour for other students and the actual incidents for which Daniel was excluded. It is submitted that the suspensions were not an act of direct discrimination as there was no less favourable treatment on the ground of disability as a student who did the acts Daniel did would have been suspended and for repeated suspensions for the same general type of unaltered behaviour they would have been excluded also. In relation to the complainant's allegation that the respondent's failure to have a proper program in place for Daniel subjected him to a detriment in his attendance at the school for the purposes of s.22(2)(c), the respondent states that it accepted that Daniel needed some specific support and provided an substantial amount of resources to permit his enrolment to proceed. It claims that these resources went far beyond the requirement imposed by the Act. In response to the complainant's allegation that the respondent failed to make a proper assessment of Daniel's needs on admission as a student at the School, the respondent states that all students enrolling at the School are required to undertake an assessment to ascertain their levels and to establish a benchmark. It states that Daniel was not assessed because at all times it was the School's clear understanding that Mr Purvis would not permit any of the usual forms of assessment of Daniel.
In relation to the complainant's allegation that the respondent failed to provide Daniel with an orientation on his commencement at South Grafton High School, it is submitted that Daniel underwent an orientation period over two days with the other year 6 students from Gillwinga Primary School, and that Mr Purvis advised Mr Bartley that this was sufficient. It is further submitted that Mr Purvis rejected a later attempt for an extra day prior to Daniel's formal commencement when offered by Mr Bartley.
In relation to the allegation that the respondent failed to implement the principal's recommendations to accommodate Daniel at the School, the respondent states that Mr Phillips was the decision maker and Mr Field, the district special education consultant, explained the reasons for the rejections of some parts of Mr Bartley initial funding application.
In relation to the allegation that the respondent failed to adjust the Welfare and Discipline Policy to address Daniel's needs and behavioural patterns when they arose, the respondent states that because the discipline policy was invoked in relation to suspensions, it did not demonstrate that there was any apparent need for alterations or modifications of the policy. The respondent submits that a failure to incorporate any alterations or modifications could not be an act of unlawful discrimination. It is submitted that there is no basis in law or fact for any finding in relation to the complainant's allegation that the respondent failed to develop a set of guidelines, in accordance with the Welfare and Discipline Policy.
In relation to the complainant's allegation that the respondent failed to provide Daniel's teachers with training, or an awareness program to assist them teach Daniel, the respondent states that Daniel's enrolment at the School was subject to the understanding on the part of the principal and his staff that the educational material needed by Daniel would be provided by the distance education unit, and there would be no demands on the class teachers. The respondent states:
"Mr and Mrs Purvis insist that Daniel be enrolled at SGHS and invoke this Commission's assistance to achieve their objective. Once that occurs, then they complain about the lack of certain resources which are the very ones which they have eschewed at the support unit, particularly that of fully trained and aware teachers who are solely engaged in teaching students with a disability. This also raises the resources they anticipate being made available for Daniel to meet their objective."
It is stated that specially trained teachers are available at the support unit at South Grafton High School. It is submitted that even if there was no special training or information opportunities afforded to the teaching staff, there would not have been a breach of the Act. The respondent submits that the requirements, which the complainant seeks to impose on the School, go beyond the purview of the legislation.
In relation to the complainant's allegation that the respondent failed to obtain the assistance of experts in special education or behaviour, to assist the School develop a program to accommodate Daniel, the respondent states:
"This is another example of the extra steps and resources the complainant requires of the respondent in order to maintain Daniel at the school which he insists Daniel attends. The fundamental premise is that in order to enable Daniel to comply with the requirements imposed on him and the school by Mr Purvis, a special program for Daniel must be implemented which is only possible to achieve with the assistance of a range of outside expertise."
The respondent states that "reasonable accommodation" does not require the principal to extend efforts and resources.
In relation to the allegations that the respondent failed to assess Daniel between 18 November 1997 and 3 December 1997 to address the reasons for the suspension and appropriate action to be taken, the respondent points to a case management meeting on 15 October 1997. The respondent states that at the end of this meeting Mr Scahill from DOCS observed that what was happening was not successful. The respondent states that the reasons for the suspension was fully assessed and accurately analysed and the appropriate recommendation was made. The respondent states that failing to inform the complainant and Daniel that he had been excluded from school on 3 December 1997, relates to a factual dispute between Mr Bartley and Mr and Mrs Purvis about the contents of a conversation on that day. The respondent submits that Mr Bartley's version of the conversation will be preferred and even if it is not, there is no actual discrimination in breach of the Act.
In relation to the complainant's allegation that the respondent failed to follow the School's policy for dealing with excluded children and facilitating Daniel's return to the School, it is submitted that the policy was followed and that there was no actual discrimination.
The respondent claims that the complainant seeks to add to the alleged breaches of the Act after the evidence has closed and with no formal notice. The respondent submits that the Commission should have no regard to the matters raised in paragraphs 4.10, 4.11 and 4.12 of the complainant's submissions, which claim that the failure of the Department to follow its policies gave rise to further grounds of discrimination. The respondent seeks that the hearing be reopened if these matters are to be considered. The respondent submits that the complaint should be dismissed.
4.3 Complainant's submissions in reply
In relation to the respondent's discussion of what it refers to as "misconceptions", the complainant states that the respondent is seeking to divert the Commission from its proper inquiry function.
In relation to the respondent's "misconception number 1", the complainant states that the respondent's definition of "education" is narrow. The complainant refers the Commission to the international instruments when considering the meaning of "education". The complainant states that there is evidence of Daniel acquiring knowledge and skills; that there is evidence of Daniel's progress at his own level, and that his teachers acknowledge this.
The complainant states that only six half-yearly reports were provided to Mr and Mrs Purvis. Not all the teachers who had prepared mid-term evaluations completed half-yearly reports. It is stated that on the whole, the half-yearly reports recognise that Daniel was participating in the class activities and doing so to the best of his ability. The complainant submits that the reports prepared by the Distance Education Support Unit were essentially relevant to measuring Daniel's progress and any educational benefit. The complainant states that Daniel's achievements in the Distance Education Support Unit program delivered at the School could not have been achieved in any setting.
In relation to the respondent's "misconception number 2", the complainant states that there is no evidence that Mr and Mrs Purvis persistently refused to allow Mr Bartley to implement a social skills program.
In relation to the respondent's "misconception number 3", the complainant states that whether or not Daniel would benefit by being placed in the Support Unit at Grafton High School is not a relevant matter for this inquiry.
In relation to the respondent's "misconception number 4" the complainant states that the evidence supports a finding that Mr and Mrs Purvis are active and open in their involvement with the School.
In relation to the respondent's "misconception number 5". the complainant notes that matters relating to Gillwinga were specifically excluded from the inquiry.
In relation to the respondent's "misconception number 6", it is stated that the respondent's own records support Mr Purvis' view that the suspensions and their duration increased.
In relation to the respondent's "misconception number 7", it is stated that Ms Fitzmaurice performed a critical role and any suggestion that the complainant continues to hunt for a scapegoat misconceived.
In relation to the respondent's "misconception number 8", the complainant states that Mr and Mrs Purvis have not sought to down-play the degree of Daniel's intellectual disability or his behaviour problems and that they have been candid in their dealings with the school and provided information to the School to assist with the understanding of Daniel's disabilities and how they had developed strategies to manage his behaviour in the home.
In relation to the respondent's "misconception number 10", the complainant states that the influence of the Teachers' Federation in relation to Daniel's exclusion is apparent in Mr Phillips' recommendations to Mr Sutton, who made the final decision on the appeal.
In relation to the respondent's "misconception number 11", the complainant states that the negative and adverse stereotypical views of the teachers are clear on the face of the minutes of the Teachers' Federation meetings.
In relation to the respondent's "misconception number 12", the complainant states that there was no such claim made by the complainant with respect to this issue.
In relation to the respondent's "misconception number 13", the complainant states that these submissions address Daniel's placement at Gillwinga, evidence of which was not admissible.
In relation to the respondent's "misconception number 14", "there is no evidence that Mr and Mrs Purvis did not accept that there was a limit on the Department's resources. This matter was not specifically put to them in cross-examination and the contention should be dismissed." The complainant further continues that it is misleading to assert that Daniel was receiving the highest funding in the state. The complainant states that no evidence was led by the respondent about the funding on a statewide basis for all the students attending secondary and primary schools in NSW.
In relation to the respondent's "misconception number 15", the complainant states that there is no evidence to support the respondent's assertion. In relation to the evidence of Dr Jackson, the complainant states that Dr Jackson indicated that he agreed with much of Professor Parmenter's report. However, unlike Professor Parmenter, Dr Jackson had the opportunity to observe Daniel directly and consider the work Daniel was undertaking. The complainant submits that there is no basis for the respondent to contend that Dr Jackson's evidence should be entirely discounted.
In relation to the evidence of the teachers, the complainant states that this evidence is unreliable and does not assist the Commission:
"...the unreliability of the teachers' evidence starts with their limited understanding and appreciation of Daniel's disability. Their opinions are based on Daniel's ability and focus on negative aspects of his time at SGHS."
The complainant states that the only relevant evidence on the issue of behaviour is the form, which the teachers were asked to complete each lesson. The complainant states that the thrust of the teachers' evidence is that Daniel received limited educational benefits, and that Daniel was not suspended or excluded because of his perceived inability to benefit educationally. The complainant then comments on the "but for" test in relation to the relevant statutory provisions, and refers to several cases. The complainant states that the evidence supports the finding that Daniel has been treated less favourably because of his particular disabilities.
5. FINDINGS OF FACT
The complainant argued that the treatment of Daniel during his attendance at SGHS, his suspensions and his exclusion from SGHS, constituted less favourable treatment pursuant to ss 5 and 22 of the Act. The respondent disputed the factual basis put forward by the complainant. The respondent argued that, on its interpretation of the facts, the treatment constituted more rather than less favourable treatment.
As set out at the beginning of this decision the evidence before the Commission in this matter was vast. The chronology of events in 2.5, whilst very detailed, only briefly summarises that evidence. The other parts of section 2 fill in more details in certain specific important areas. In this section, I have briefly referred to the evidence on which my findings are based but not repeated what is in section 2. All of the evidence referred to in this section may not have been canvassed in section 2.
I have attempted to set out my findings of fact in a logical, chronological order, and where possible to follow section 2.5 of this decision. In its submissions the respondent set down 15 alleged misconceptions in the complainant's case. I have dealt with these where they appear to be relevant in my findings, but not necessarily returned to them in other sections where they may also be relevant.
5.1 Daniel Hoggan
Daniel Hoggan was born on 8 December 1984. He is a ward of the State and has been in the foster care of Mr Alex and Mrs Clemency Purvis part-time since 1988 and full-time since 1989. Daniel is totally accepted as part of the Purvis family, and views himself as a member of that family. Daniel's family situation is described in section 2.3, and that description, which is not in dispute, is adopted.
It is not in dispute that Daniel Hoggan has a disability for the purposes of the Act. It is described in section 2.2 of the evidence and that description is adopted in these findings.
For the purposes of the definition in s.4, Daniel has-
(a) an intellectual disability that manifests in unusual individual mannerisms and disturbed behaviour such as rocking, humming, swearing, and at times aggressive behaviour such as hitting or kicking.
(b) an intellectual disability that affects Daniel's thought processes, perception of reality, emotions, and results in disturbed behaviour;
(c) an intellectual disability which results in Daniel learning differently from a person without the intellectual disability;
(d) a visual disability;
(e) epilepsy; and
(f) a past disability, namely severe encephalopathic illness.
Mr Purvis acknowledged in his evidence that Daniel can be a difficult child, but asserted that over the years he has spent with the Purvis family he has progressed dramatically. He has matured, and his behaviour has improved. I accept this evidence. Mr Purvis also stated that when Daniel behaves in a manner which may be described as acting out, swearing or socially inappropriate behaviour, it is usually with some level of warning, and it cannot be said that his behaviour occurs in a vacuum. Whilst not experts in the field, Mr and Mrs Purvis have by far the most experience in developing strategies to deal with Daniel's behaviour, and I am happy to rely on Mr Purvis' assessment on this issue.
Mr Lord, in his evidence, stated that the nature of Daniel's disability means that he has no sense of the cause of his behaviour such that his behaviour can be described as planned or motivated by an ill intent. I also accept this evidence, which is important to later findings.
He also noted "It is essential for Daniel to develop appropriate behavioural norms and social integration. This would be most effective with significant periods of inclusion into mainstream classes with programs adjusted to permit his inclusion into normal activities."
He said further, "Daniel is a sensitive child, and he picks up on verbal and non-verbal cues. He senses whether he is accepted, and responds to these cues."
5.2 Identification of the complainant
On 22 March 1998 Alex Purvis, on behalf of his son Daniel Hoggan, lodged a complaint of disability discrimination with the Commission. The complainant is clearly the writer of the letter, Alex Purvis. He has lodged the complaint on behalf of his son, who is the aggrieved person, pursuant to s 69 (1) (c) of the Act.
5.3 Respondent is an educational authority
Again this is not in dispute between the parties.
The State of NSW, through the Department of Education and Training is an educational authority administering the South Grafton High School for the purposes of the definition of the definition of educational authority in s 4 (1) of the Act.
The South Grafton High School is an educational institution as also defined in s 4 (1).
The State of NSW employs the Principal and Staff of the SGHS. The State of NSW is vicariously liable for the acts of its employees and agents pursuant to ss 122 and 123 of the Act.
5.4 Daniel Hoggan being a student
It is not in dispute that, at the relevant time, Daniel Hoggan was a student at South Grafton High School. After admission the previous month, he commenced there in Year 7 on 8 April 1997, and attended there (subject to periods of suspension) until 18 September 1997. He was excluded from the school on 3 December 1997.
5.5 Daniel's previous education
The facts set out on this issue in section 2.4 are not in dispute and are adopted. However, this is only background, as the matter before me deals with Daniel's time at SGHS.
The respondent has suggested that there is a misconception (number 13) that Daniel's placement at Gillwinga was very successful. Because this inquiry deals with Daniel's attendance at SGHS I make no finding regarding this matter.
The respondent has suggested that there is a further misconception (number 5) drawn by the complainant that Daniel was able to survive and thrive in a mainstream environment. The complainant's comment in this regard, in the actual complaint, refers to Daniel's time at Gillwinga which I am not taking into account. This is not, therefore, a misconception in the complainant's case. The respondent has outlined much evidence supporting its contention that Daniel was not happy at SGHS and did not want to be there, which I will consider later in these findings.
Further details on Daniel's previous education, and his first unsuccessful application for enrolment at SGHS, are set out in section 2.5.1. These are adopted.
5.6 SGHS knowledge of Daniel's disabilities
The various medical reports relating to Daniel's disabilities, with some minor exceptions, were on Daniel's file at the school, and Mr Bartley in his evidence said that he was aware of Daniel's disabilities. However, when Daniel commenced at SGHS his teachers, from the evidence, had little understanding of the nature of his disabilities, and how they affected his learning and behaviour.
Teachers exhibited a wide disparity of views about Daniel's disabilities. Ms Fitzmaurice said she thought it related to his sight, learning, and having limited social skills. Mr Trudget could not explain what he understood Daniel's disabilities to be. Mr Lang thought it was visual. Mr Perle thought it was difficulty concentrating, sitting still, and not being able to follow simple directions. Ms Ebeling thought it was not being able to retain information for very long, and she did not appreciate that he had a vision disability. Mr Miller thought Daniel had a mental age of three. Ms Durant said eyesight was an issue and reading was at basic level. Mr Neill, considering them in relation to art tasks, said Daniel had no fine motor skills, limited vocabulary and writing. Ms Court said she was aware of vision disability but not the severity of his impairment and, according to Mrs Purvis' evidence, she did not have an understanding of the relationship between Daniel's disability and his behaviour. As his home room teacher, and the special teacher for learning difficulties, this is quite concerning. Ms Court was given relief time to assist Daniel, but appears to have spent little time with him.
Whilst the file in which this information was kept was available to staff, according to Mr Bartley, it appears that teachers were not aware of it or did not read it.
I find that, overall, staff at SGHS had a very poor knowledge of the nature of Daniel's disabilities, and the implications of those disabilities. This lack of understanding is a fundamental issue in this case.
5.7 Planning for Daniel's enrolment
Much information was gained during the first unsuccessful application for enrolment. This information, and the application process, was assessed by Mr Phillips prior to the commencement of the second enrolment process. This provided him with an opportunity to seek further information if he felt that it was required. That did not occur, and in fact on 24 December 1996 he wrote to Mr and Mrs Purvis indicating that the information on Daniel's needs gained as part of the first application process was sufficient.
The fact that the first process was flawed, which was recognised by the Department, could indicate that facts and impressions then collected may have impacted on the second enrolment process, and assumptions made by SGHS and Department staff during and after Daniel's enrolment.
Mr Bartley visited the Purvis family at their home early in 1997 and met Daniel. He set up a committee to assess the resources at SGHS, and prepared a carefully considered integration plan for Daniel. It recognised the special services and facilities Daniel would require. Consultation occurred within SGHS, but Mr Bartley did not consult with Mr Field (the special education consultant), and did not take into account the Departments Special Education Policy. This plan, which went to Mr Phillips for approval, included requirements for major resource allocation for Daniel by the Department. Whilst some of these allocations were made, not all were. Both Mr Phillips and Mr Field gave evidence as to the reasons for these decisions. Whilst the provision of even greater resources may have benefited Daniel and improved the likelihood of success of his placement (even though to hypothesise on this is of little value) Mr Phillips' decisions were valid in the context of overall resource allocation for his region.
The respondent asserts that, unlike other SGHS students, Daniel was not assessed prior to his commencement at the School because Mr and Mrs Purvis would not agree to it. However, I find that this misrepresents the Purvis' position. The respondent relies on a letter to the School from Mr Purvis dated 13 February 1997 referring to a proposal for a trial day which, in fact, did not take place. The letter consents to a trial provided that "Daniel is not being assessed". This condition on the trial is not preventing assessment, and in fact in his evidence Mr Purvis indicated that he was prepared to agree to assessment of Daniel if its educational benefit could be demonstrated to him. He did not want Daniel to be assessed, labelled from that assessment and then restricted as a result of that labelling. Such concerns have been acknowledged in debate about "special" education. It is unfortunate that teachers were not able to explain the benefits of assessment to Mr Purvis' satisfaction.
I accept that Mr Bartley formed the view, honestly but incorrectly, that Mr Purvis was refusing assessment altogether. This is supported by his report in February 1997 in which he notes the constraints that this places on the school. Mr Field also notes this as one of his concerns.
But I do not find that this was Mr Purvis' position. However, whilst understanding Mr Purvis' position the hard line to which he held was unfortunate. In my view, both Daniel and the staff at SGHS would have benefited if a valid means of assessment had been found, as it would have provided a benchmark from which progress could have been gauged. Responsibility for the fact that assessment did not occur, though, must lie as much with Mr Purvis as with the respondent. I note that Mr Phillips put special arrangements in place to ensure that, even though parts of the funding application could not be filled in because Daniel had not been assessed, the funding was still made available.
The complainant submitted that there was little preparation for teachers prior to Daniel's arrival. A staff seminar took place as one session of a staff training day, and not all of Daniel's teachers participated. The notes of the meeting confirm this.
At the seminar the teachers aides answered questions relating to their experience with Daniel, which was very useful, but little expertise in special education was involved.
Ms Thomson's evidence about the seminar, which I accept, was that most of the teachers' questions related to Daniel's behaviour. Whilst this was certainly a relevant area of discussion, this indicates a concerning focus in the teachers' minds prior to Daniel's enrolment.
The respondent rejects the complainant's assertion that all of Daniel's teachers should have attended a UWS two-day workshop on special education. Whilst this may have been beneficial for Daniel it is clearly an issue of resource allocation, and a matter for individual teacher choices.
The complainant submitted that this lack of preparation for teachers was reflected in their lack of understanding of Daniel's disabilities, how they were to teach Daniel, and the role of the teachers aides. The involvement of the DESU was not clear, and teachers did not know whether to modify the existing program, administer work provided by DESU, or undertake some other method of teaching. Their assessments indicate that all of these methods were tried by different teachers.
This problem was clearly demonstrated in the teachers' evidence about Daniel's placement. The respondent submits that Daniel's enrolment was accepted on the basis that the school would provide a place for Daniel, but that he would be "taught" through material provided by the DESU. However, this cannot have been the reality. Whilst the DESU material was provided it was done to support Daniel following the year 7 curriculum at his level of learning. It does not follow from the provision of this material that the teachers had no role in teaching Daniel. Clearly some of them did not think this was the case as they worked through this material with Daniel. Nor did the DESU, as it did not provide material for all of Daniel's classes. Other teachers prepared specific material for Daniel. I reject this submission of the respondent.
The respondent's submission in paragraph 399 seems to me to be a major concession. It says: "the evidence is overwhelming that it was the teacher's aide who had the principle responsibility for working through the material. The actual amount of teaching, in the commonly understood usage of the word, undertaken by any of the individual teachers was non-existent." If it is an admission that the teacher's aides, rather than the teachers, principally taught Daniel then it would seem to provide clear grounds for the complainant's assertion of a "detriment in education" under the Act. It was certainly recognised by all parties that Daniel would require the assistance of a teacher's aide. But I do not think it would have been assumed that such an aide would have the primary teaching role. I will consider the question of detriment in the next section.
The teachers aides were not given any training about the workings of SGHS.
The complainant alleged that, unlike other year 7 students, Daniel was not given an orientation day at SGHS. The respondent relies on the orientation given to all Gillwinga students in 1996 and that Mr Purvis said that this was sufficient and he did not need a trial day. However, the proposal for a trial day is very different from the concept of orientation, and I do not accept the respondent's rejection of the complainant's submission of detriment on that basis. Orientation is having the opportunity to learn about the School, its environment, etc. A trial carries the implication of being some sort of test for Daniel- hence Mr Purvis' comments in the letter referred to above about assessment not taking place. Further, the trial day was proposed prior to Daniel's enrolment whereas orientation would be expected to occur on the first day of attendance as a student of the school. For the respondent to assert that these are the same is a nonsense.
I accept, however, that on Daniel's first day of school he was taken around the School and shown all the things that he needed to know. Whilst that might not constitute the level of orientation provided to other year 7 students it is difficult to compare what one student commencing in term 2 received in this context with what the whole of year 7 received at the beginning of term 1.
5.8 Daniel's education and participation at SGHS
Clearly Daniel was not able to participate in the year 7 curriculum at the level of other students- there is no disagreement between the parties on this point. However, it is also clear that Daniel did participate in some aspects of the year 7 curriculum. This is supported by the evidence of the teachers aides who, although not educationally qualified, were involved in Daniel's day-to-day activities.
It is also supported by some teachers themselves, particularly in the half-yearly assessments provided for Daniel. A number of these are quite positive. It is true that the mid-term evaluations are not so positive, but it must be remembered that they occurred in May of 1997, after Daniel had been at the school for a relatively short period.
A number of the teachers held the view that Daniel did not benefit educationally, but this view was by no means unanimous. Others had some hesitation in expressing a view because they found it difficult to assess Daniel.
The DESU reports from visits and work which they marked also indicate educational benefit. The respondent suggests that they are not relevant because the same result could have been achieved in any setting. but they provide a proper measure - against clearly established criteria - of Daniel's progress. It is impossible to determine, and fairly irrelevant, whether the same result would have been achieved somewhere else. For a start such a program may well not have been available at the GHS support unit.
Daniel participated in some regular classroom activities, and followed the same timetable as other students in his class.
The respondent asserts that if school life is taken to principally mean the education offered by the school, as Daniel - in the main - was not participating in that because he was doing DESU work, he was not participating on an equal footing at any time. Endeavours were made to line the DESU work up with the work of the rest of the class, in some ways this can be seen as tokenistic and as a corruption of the curriculum. This assertion is hard to accept bearing in mind that the DESU prepared this work, and did so - it is assumed- in line with the Department's policies for this type of situation.
The respondent, in its submissions, seeks a finding that Daniel did not benefit educationally during his period at SGHS. It asserts that the fact that Daniel did so benefit is the first misconception in the complainant's case. In seeking such a finding it adopts a relatively narrow definition of education, rather than a more holistic approach. It relies on the Macquarie Dictionary definition of education. The complainant relies on the broader definition set out in the UNESCO Salamanca Statement and Framework For Action On Special Needs Education. Because of the fact that this statement was prepared specifically in the educational context, and that it is an international instrument setting out rights to which the Commission should have due regard (Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273), I am more inclined to accept this broader definition.
I am not persuaded that Daniel did not benefit educationally. I am also not persuaded that he did not participate in any curriculum activities. I am satisfied that he learned, and that the activities he carried out (although at a very different level) were following the thrust of the curriculum.
Further, this was not the only reason for his attendance at SGHS. Mr and Mrs Purvis were clear in their objectives for Daniel's participation in a mainstream setting, and they were not only concerned with educational benefit. Others, such as Mr Bartley in his evidence, recognised this.
In any event it is not the Commission's role to make such a finding. What I must determine is whether, during his time at SGHS, Daniel was discriminated against on the ground of his disability.
The respondent also sought a finding regarding Daniel's social integration at the school. The respondent asserted that the complainant had argued that Daniel's social skills were more important than educational progress, and these would benefit from his placement at SGHS. This, asserted the respondent, was the second misconception in the complainant's case. It relied on evidence from Mr and Mrs Purvis for this assertion.
The respondent argued that this was not the main function of SGHS. It asserted that, according to Professor Parmenter - Daniel would need support for this to occur anyway as it was not "an osmotic process". It further argued that, according to the teachers' observations - it largely did not occur.
Mr and Mrs Purvis argued that it was an important facet of Daniel's development, and the aides gave evidence of a number of instances where it was occurring. This is contrary to the evidence of teachers, but I prefer the evidence of the aides who were with Daniel most of the time. The teachers were only able to make observations of what they noticed as part of their normal playground duties, and as part of teaching whole classes of children.
I am satisfied that learning is a primary function of schools, but that social activities and interaction also play an important part in the overall learning process. Whilst Daniel's social integration may not have been as successful as hoped I am satisfied that, in term 2 of 1997 at least, social integration was beginning to occur. The evidence in section 2.5, mainly the quotations from the communications book, is relied on for this finding. Unfortunately, the positive trend did not appear to continue to the same extent in term 3.
The respondent further asserted that there was a misconception (number 3) that enrolment of Daniel at the support unit at Grafton High School would be detrimental to his academic and social progress. This was certainly the view of Mr and Mrs Purvis, and it is a view that they are entitled to hold. The respondent attempted to show that it was without valid foundation. But Mr Purvis had made inquiries of the unit, and both parents had clearly considered this question in great detail over the years of Daniel's education. It was a view shared by Dr Jackson and Mr Lord (in the sense that he felt strongly that Daniel would do better in an integrated setting), although not by Ms Knight and other of the respondent's witnesses. They asserted that attendance at the Support Unit would have been beneficial to Daniel's social and academic progress.
I must be particularly careful here to restrict my findings to those relevant to these proceedings. Dalla Costa v The ACT Department Of Health (1994) EOC 92-633, makes it very clear that provision of a segregated service - because of it being innately exclusionary - is discriminatory per se, and that even if inclusive education provides an inferior service, that service would have to be greatly inferior in order to counterbalance the loss by the person with the disability caused by the innate exclusion. I agree with and adopt the reasoning in that decision. That being the case I need only find that Daniel's social and academic progress at the Support Unit would not have been greatly superior to that at SGHS. Based on the complainant's evidence as outlined that is a clear finding. I do not need to take the further step of finding that attendance at the Support Unit would have been detrimental. I must focus on the issues which assist me to determine whether discrimination occurred in breach of the DDA.
The respondent asserted that the ninth misconception in the complainant's case was that the Support Unit at GHS taught only social skills which could be taught at home. I accept Mr Clarke's evidence about the wide range of skills taught at the Unit. However, I do not accept that the complainant was asserting this narrow view of the Unit. Whilst the complainant and Mrs Purvis hold strong views about the unacceptability of the Support Unit for Daniel, this alleged misconception takes their evidence out of context and misrepresents their views. Further, the issue is of marginal relevance to this inquiry for the reasons set out above.
5.9 Daniel's performance in Term 2
Prior to his commencement Daniel had been completing DESU work at home, co-ordinated by Ms Thomson. I find that, in the main, Ms Thomson continued this work when Daniel commenced at SGHS. This is her evidence, supported by the notes of the DESU. Whilst I accept that Ms Fitzmaurice spoke to the DESU on a number of occasions, I do not accept her evidence that she co-ordinated Daniel's program, even though it was her role to do so.
There was no orientation or transition program for Daniel when he started, although this was available to all other year 7 students according to Ms Fitzmaurice's diary. Again according to Ms Fitzmaurice's diary and her evidence year 7 is recognised as a year of change, and in first term students are given flexibility accordingly. This flexibility, again according to this diary, was given to other students who started that year later or missed periods of school. However, it was not afforded to Daniel when he started in second term. This was a particular problem for him considering his difficulty coping with change as a result of his disability.
By June 1997 Mrs Purvis observed that Daniel had settled down and was going to school happily. She believed that his self-esteem had improved substantially, and that he was maturing and making friends. This is reflected in the communications book, and in the evidence of Ms Thomson and Ms LaForrest. He was attending, and participating in, the same classes as other students. He was learning and attempting some tests- some modified and others not. This evidence is set out in more detail in section 2.5.
DESU notes on 26 June 1997 record a conversation with Mr Bartley in which he indicated that things were going well, and that Daniel had settled down. Happiness of teachers varies, and some are concerned about reporting processes. Mr Bartley sought some form of outcomes-based reporting, which the DESU advised it was moving to. Mr Bartley noted that on the whole most teachers are quite positive, and have come a long way towards changing their attitudes. I am satisfied that, at the end of June, Daniel was settling in well and beginning to progress. I also accept Mr Bartley's comments - as recorded in the DESU notes - that the attitudes of many teachers were becoming more positive.
Evidence from Ms Thompson and Ms LaForrest asserts that Daniel was no more of a distraction in the class than other students. They stated that Daniel was one of the quietest students in the class, particularly in the second term, although recognising that conversations between him and them may have caused some noise. The evidence of teachers on this issue is mixed, with some asserting that these conversations were a distraction, and others seeming not too concerned. Classrooms can be quite noisy environments, depending on the teacher and teaching methods, the particular activities taking place, and the approach of students. I am satisfied that, in this context, neither Daniel's behaviour nor the conversations between himself and his aides caused any greater problem than other students.
Clearly Daniel's behaviour deteriorated later in the year. This is supported in the chronology of evidence set out in 2.5 above. It is what led to this deterioration which is more difficult to determine. I will address this issue later.
5.10 Assessment of Daniel
The daily assessment forms, agreed upon at the teachers' seminar prior to Daniel's enrolment, demonstrated two problems in the process. Firstly, Daniel was the only child monitored in such a way. Secondly, only one of Daniel's many teachers completed them daily. Some others completed them for a while or less frequently. Others, such as Ms Court, only completed them when they reported poor conduct. Because of these inconsistencies, the forms were of little use in formulating behaviour management strategies.
Ms Fitzmaurice, who was responsible for collecting them and collating the information from them, did not follow up on their non-completion.
The forms demonstrate periods of excellent behaviour, and other periods where behaviour was poor.
Longer term assessments such as the mid-term evaluations and the half-yearly and yearly reports, generally indicate that teachers were of the view that Daniel did not receive much educational benefit from his time at SGHS. However, it is difficult to draw much from them because - as expressed by the teachers themselves - there were not clear criteria on which to assess Daniel. Therefore, he was assessed differently by different teachers.
Different approaches seemed to be adopted to teach Daniel. Some teachers relied totally on the DESU material. Some spent a great deal of time and effort setting Daniel particular work relating to the areas of the curriculum they were covering with other students. Some teachers made accommodations for Daniel, and others treated him as they did all other students. I found the teachers' evidence on assessments overall difficult to assess because of these variances, and of little assistance in making findings on the assessment processes.
The question of assessments and testing was raised at the case management meeting on 25 April 1997, and at other times. It is clear from the meeting notes, as well as Mr Purvis' evidence, that he was not opposed to these provided that it would benefit Daniel. The school saw Mr Purvis as being inflexible on this issue, perceiving his position as refusing testing and assessment altogether. They saw this as limiting their capacity to assess progress. However, as a parent of, and advocate for, his son with a disability (for whom assessment has been a commonplace activity for all of his life) his position is quite understandable. He did not wish to have Daniel participate in the activity without understanding what could be gained from it.
It was unfortunate that this issue was not explored further by all concerned. Whilst I understand the position which Mr Purvis took, had he been a little more open to negotiation, and had people at the School spent more time explaining the benefits, then further assessment may have occurred. Some real measures of Daniel's progress would, in my view, have assisted the teachers, been of benefit to Daniel, and perhaps meant that positions taken on other issues would have been less oppositional.
5.11 Role of the Teachers Federation
Prior to Daniel's enrolment several meetings of the Teachers Federation occurred to discuss it. Fear and uncertainty were evident at these meetings from the minutes and resolutions recorded. Strict adherence to the Federation guidelines for the enrolment of students with disabilities was sought, and appropriate resources demanded.
The respondent asserts that misconception eleven in the complainant's case is that there was antagonism to Daniel's enrolment by a small number of key people at the School, and a negative mythology of disability and difference amongst some in the School. The respondent states that only Ms Donsworth and Ms Court were named by Mr Purvis as being negative, and that the Teachers Federation was also named.
It is true that many teachers worked hard to assist Daniel and provide him with a profitable educational experience. However, it is also true that some were opposed to his integration at the School, and based their views on stereotypical assumptions about people with disabilities.
Of course the Department cannot be held responsible for views expressed at Teachers Federation meetings. However, the notes of these meetings, and decisions made, indicate strong opposition amongst teachers for Daniel's integration. They also demonstrate that teachers had, prior to Daniel's arrival, formed preconceived views about Daniel and his capacity to participate. This is supported by comments about teachers only being baby-sitters, even after the presentation by Mr Bartley of his integration plan. Most of the teachers had not met Daniel when these meetings took place.
The opposition of the Federation continued throughout Daniel's placement. Mr Perle, the convenor, provided material in opposition to inclusion to Mr Bartley, and wrote on 19 September 1997 threatening industrial action if Daniel was not moved. This was reaffirmed following a meeting in November.
The complainant in his submissions suggests that the role of the Teachers Federation was an influencing factor on Mr Bartley's enrolment decision, on Mr Bartley's decision to exclude, and on material provided by Mr Phillips for the consideration of the appeal of that second decision. Whilst I accept that Mr Bartley took his own decisions, and that the enrolment decision he took was contrary to that of the Federation, I accept the complainant's submissions in large measure. The continued opposition of the Teachers Federation had a major negative impact on Daniel's attendance at the school. This was unfortunate, because many of the views expressed at their meetings, particularly prior to the enrolment, were quite uninformed.
I am sure that Mr Bartley's decision to exclude was his own decision, but he would not have been able to completely eliminate from his mind the continued opposition of the Federation. This view also applies to the material which Mr Phillips submitted to Mr Sutton on the appeal from Mr Bartley's decision. This assertion by the complainant is not challenged by the respondent in its submissions.
The respondent asserts that misconception 10 in the complainant's case is that the Teachers Federation was making the decisions in relation to Daniel's enrolment and return to school. This somewhat overstates the complainant's position.
5.12 Case management and other meetings
The purpose of these were to discuss Daniel's progress and set ongoing direction. They were to involve all relevant members of the school community, including Daniel's parents.
Apart from the one parent-teacher night these meetings were the only opportunity for Daniel's parents to communicate their views and suggestions to teachers, and receive teachers feedback. The critical role of informing teachers about the outcomes of the meeting was to be performed by Ms Fitzmaurice. She also had to inform case management meetings of the teachers' views and information.
My assessment of the notes from and evidence of case management meetings, as against the evidence of Daniel's various teachers, brings me to the view that this conduit role was not performed successfully. Many suggested strategies for behaviour management and other issues seemed not to have percolated down to the teachers. Information about Daniel's disability and its impacts certainly did not. On the other hand, teachers' concerns about assessment, teaching methods and Daniel's learning were not voiced at, and acted upon by, the case management meetings.
Meetings took place involving some members of the Case Management Team on 3, 11 and 12 March 1997. Mr and-or Mrs Purvis were in attendance at all of them.
Mr and Mrs Purvis were not invited to the case management meeting on 19 March 1997 where Daniel's individualised welfare and discipline policy was formulated. Ms Thompson and Ms LaForrest were also not invited. It is hard to understand the reason for this, as all four would have been the best people to contribute strategies for managing Daniel's behaviour.
The negativity of these meetings alleged by the complainant is demonstrated in the minutes of the meeting of 25 March 1997. One of the potential problems with Daniel's placement was listed as expected complaints from other parents. Mr Bartley, in his evidence, indicated that no complaints were received. Ms Fitzmaurice stated that only one parent had complained, and that matter could as arguably have related to her own child as to Daniel. Whilst it is appropriate to try to anticipate problems and plan to avoid them there is a fine line between this process and putting up unnecessary barriers. I am satisfied that this line was crossed by the respondent on a number of occasions at case management meetings.
At the meeting on 30 April Mr Bartley reported two items of concern relating to Daniel's behaviour which he said he was not sure how to deal with. Mr Purvis suggested that there may need to be adjustments to the Discipline and Welfare Policy, but these never occurred. Mr Purvis set out his concerns about this policy in a letter which was not tabled for discussion at following case management meetings.
Following some concerns John Lord prepared a report on behaviour management strategies for Daniel in May, and spoke to the case management meeting on 18 June 1997. He offered to come and watch Daniel at School so that these strategies could be refined in consultation with the teachers, but this offer was never taken up by the School. This was a most unfortunate lapse, as it may have led to events being different later in the year.
5.13 Modification of policies for Daniel
Both the processes used for, and the modifications made in, policies prepared relating to Daniel were flawed. People who were very well placed to participate in the formulation process- Mr and Mrs Purvis, the aides, John Lord, Bob Field- were not consulted. It is true that Mr Bartley had had conversations with the Principal and the year 6 teacher at Gillwinga, and that he had spent much time researching the issue. However, Mr and Mrs Purvis, Mr Lord and the aides had a wealth of experience regarding behaviour management strategies for Daniel. Mr Field was a special education expert. Whilst Mr Bartley, as Principal, was always going to be the ultimate decision-maker, the process would have benefited from including these people.
Daniel's discipline and welfare policy was largely based on how Ms Donsworth thought Daniel might behave. Many involved in the policy formulation had not met Daniel, and he had not started at SGHS.
The discipline and welfare policy was not allowed to be flexible. It was not modified during 1997 based on the School's experience with Daniel. This was despite proposals by Mr Purvis, and offers by Mr Lord to work in this area. The respondent argued that events at the School did not necessitate the policy's modification. However, I cannot accept this view bearing in mind that the policy was a first attempt at addressing quite complex issues, and also considering the comments which Mr Lord made regarding the cause of Daniel's behaviour discussed elsewhere in this section.
The complainant asserts that the Department's Welfare Policy was amended to be more "appropriate" for Daniel but it was hard to find items deleted from the general Department policy which were not relevant. The complainant says that the removal of these deprived Daniel of the benefits of a comprehensive and sensitive welfare policy. Their removal decreased the flexibility of the policy. However, there are no specific examples in the complainant's submissions of how Daniel suffered a detriment as a result of these changes.
The complainant also mounts this argument with respect to the Department's Special Education Policy. However, again, no specific examples are provided.
Daniel was disadvantaged because the amended policy failed to understand the nature of Daniel's disabilities and the relationship to his behavioural reactions. Mr Lord noted this inappropriateness for Daniel when he said that the policy addressed the actions-consequences-tolerance levels of Daniel's behaviour rather than the meaning of the behaviours.
The complainant asserts that if amendments were required to policies the relevant one would have been the 1995 SGHS Discipline Policy. This policy was not amended. When the behaviours and tolerance levels assumed for Daniel are compared with those in the SGHS policy consequences for Daniel were more severe. The levels system in the SGHS policy was applied to Daniel in a more rigid manner than for other students.
The respondent asserts that the levels system never applied to Daniel, because the SGHS discipline policy of 1995 was replaced by the specially formulated discipline policy for Daniel. The respondent asserts that the amended policy was formulated to deal with the specific behavioural difficulties which it was foreseen could arise. I accept the respondent's submissions. I further accept that there were many events which occurred which, had they been initiated by another student, would have resulted in some form of disciplinary action being taken. The example of swearing is a clear demonstration of this.
Whilst Daniel's inappropriate behaviour cannot be condoned, I accept the submission of the complainant that it must be considered in its context. I agree that "the use of a pejorative term such as "violence" was and is not appropriate to describe the behaviour of a child whose behaviour stems from an illness which had caused an injury to his brain." A policy intended as a behaviour management strategy in the welfare sense became a vehicle for a form of punishment. By inflexibly following a behaviour-consequence approach, rather than attempting to manage the behaviour, Daniel's behaviour (which was a symptom of his disability) was being punished.
Whilst the evidence is not completely clear, I am satisfied that, at times during 1997, Daniel was receiving one of the highest amounts of Departmental funding for a child with a disability in the State. Whether or not this was the case, the funding was approved by the Department, and this fact is not in itself telling, as such figures can vary depending on how capital and recurrent resources are valued and allocated.
It is clear that the time spent on Daniel was very disproportionate to that spent on other children, although the process used to calculate Ms Fitzmaurice's time is questionable, the time spent by Mr Bartley alone was very large. Numerous other staff members were also involved. However, it has been the case for many years that the Department will commit more time and resources to students with disabilities, whether they go to school in support units or in regular classes.
The respondent asserted that the fourteenth misconception in the complainant's case was that there was no limit to the amount of resources the Department should make available to maintain Daniel's enrolment at SGHS. This assertion was supported by reference to evidence from Mr Purvis relating to further provisions which the Department could have made to support Daniel's enrolment at SGHS. However, these matters were also identified by Mr Bartley as being necessary. Further, the fact that there was a limit on the Department's resources was never put to Mr and Mrs Purvis in cross-examination.
Finally, many of the resources available to the School were not accessed either adequately or at all- Messrs Field and Lord are examples of this. Further, plans and recommendations developed over the year were not implemented or followed through. I have referred to a number of these above, but they include Mr Bartley's integration plan, Mr Lord's recommendations, and the Callan-Garrard report.
The question of lack of resources cannot be used as a defence by the respondent to the allegations made. However, I do not find that the resources in this placement were limited and so the complainant cannot argue that allocation of resources was a factor which led to a breach of the DDA.
5.15 Failure of Daniel's placement at SGHS
Most of the teachers who gave evidence felt that Daniel's inclusion had been unsuccessful because of his level and nature of disabilities and his inability to cope in a regular classroom.
The aide's assessment was that the system failed because of its inflexibility. Whilst they do not have the educational qualifications of the teachers they were with Daniel all of the time and thus more able to provide an overall assessment. Further, Messrs Callan and Garrard, experts in special education, recommended the continuation of the placement.
Professor Parmenter made some interesting observations in his evidence and publications about the perceptions of the behavioural problems of children with intellectual disabilities and the issue of competency of the service provider (transcript 1223).
The respondent asserts that a misconception in the complainant's case (number 7) is that there is a person or persons who can be blamed for the breakdown of Daniel's placement. It asserts that "There is a shared responsibility between the school community, the home community and Daniel himself. These must be able to work co-operatively for any achievements to occur." This statement is unarguably true.
The respondent goes on to assert that, in suggesting in cross-examination that Ms Fitzmaurice had a pivotal role in the success of Daniel's placement, the complainant is hunting for a scapegoat. The respondent states that such action demonstrates an inability to accept responsibility for the outcome of the placement, fails to accept that many members of the school community played an active role, and avoids recognition of the wider issues for other students and teachers which arise from his enrolment.
On the other hand, the complainant asserts that Ms Fitzmaurice, as year adviser, did play a critical or important role, but this in no way removes the responsibility of others, including the complainant. Further the respondent, against whom this complaint is made, only acts through its employees.
I accept the submissions of the complainant on this issue. I have commented elsewhere on Ms Fitzmaurice's important role as a conduit between the Case Management Team and teachers, and in regard to the collection of forms. However, these are only two of the numerous issues which led to the failure of Daniel's placement.
The respondent asserts that a further misconception (number 12) is that SGHS has discriminated against Daniel in various ways yet there is no criticism of the Principal. The respondent asserts that the Principal is responsible for events which occurred at the school. Whilst it is correct that Mr Purvis admired Mr Bartley's leadership, and recognised his difficult position, he was also critical of him in certain areas such as not obtaining the use of experts in special education, not always being consultative, and not always being sensitive. Further, it is not valid to assert that Mr Bartley is responsible for all of the events occurring at the School even though he is responsible for its administration. Finally, the complaint is made against the Department, which made numerous decisions beyond Mr Bartley's control. This misconception misrepresents the complainant's case.
5.16 Daniel's view of school in 1997
The evidence on this issue comes from many witnesses involved in this process. Mr and Mrs Purvis, and Daniel's aides, gave evidence that, following some apprehension at the beginning of his school year, Daniel enjoyed his attendance at SGHS. Mr Bartley agreed with this assessment in his discussions with the DESU on 26 June.
Some of Daniel's teachers gave evidence that Daniel, a sensitive boy, was conscious of the difference in learning ability between himself and other students, and did not enjoy participation in class because this difference was only reinforced. Whilst this assessment may be true, it does not mean that Daniel did not enjoy the environment and learning experience apart from this.
Later in the year it is clear that Daniel was not happy going to school. The amount of "acting out" by Daniel confirms this. This observation, made by many of the SGHS staff, is reinforced by his aides, the people closest to him during his time at the School.
What this evidence does not clarify, and what must be the subject of conjecture, is why. The respondent would submit that it related to Daniel's inability to cope in the high school environment, and that his behaviours indicated increased levels of stress and unhappiness. Ms Knight's evidence certainly supports this view. So does that of Professor Parmenter, who asserts that integration of children with high support needs is far more successful in primary school than high school because of the "differences in the school structures, teacher competencies, curriculum levels and the ages of students."
The complainant's view is that some of the strategies used to manage Daniel's behaviour sent him wrong messages, and actually caused the behaviour to worsen. As an example, it was argued that being suspended (and thus sent home) for hitting or kicking could be perceived by Daniel as a reward rather than a punishment. Also, such punishments isolated Daniel further and increased the chances of him "acting out". This view is supported by the evidence of John Lord referred to above, and by the recommendations in the Gerrard Callan report which recommended the continuation of the placement with some variation in strategies.
On balance, I am inclined to accept the complainant's view on this issue. I am satisfied that from all of the evidence set out in section 2 of this decision, (including the notes in the communications book which were contemporaneous reporting) that had Daniel received some different messages his "acting out" would not have increased. It is unfortunate that the advice of Messrs Lord, Callan and Gerrard were not acted upon, as it is my view that had this occurred Daniel's "acting out" would have diminished. Had this been the case Mr Bartley and the Department may not have formed the views that they did with regard to Daniel's exclusion.
5.17 Expert advice
Messrs Field, Garrard and Callan attended the 8 August Case Management Meeting. They were all experts in special education. Frustrations were expressed by the teachers about not knowing how to report on Daniel, and that there was uncertainty as to whether teachers were doing anything for Daniel academically, or whether it was all being done with the DESU material. The experts, having listened, agreed to come back with some recommendations.
A report was prepared by Messrs Callan and Garrard but it was never given to Mr Bartley or the case management team. It was withheld by Mr Phillips, who was not satisfied that its content and recommendations were going to assist the situation at SGHS.
The report detailed wide consultation which had taken place. It recommended that Daniel's placement continue. It recommended the development of an individual transition plan for Daniel, and some modification of work from the DESU. It proposed some release time for interested teachers to gain a better understanding of curriculum planning and development for Daniel. It suggested that Mr Bartley's input to supporting Daniel should be spread. Two other staff could share the mentoring and crisis management responsibilities with him after developing a relationship with Daniel. This report was the first occasion on which the advice of the Department's special education experts had been sought, apart from some minor interactions with Mr Field prior to the commencement of Daniel's placement and a visit from members of the DESU.
This report identified problems and advised a way forward. It offered a way out of the ad hoc meetings and discussions which had characterised the management of Daniel's placement from mid 1997. The recommendations are also of importance because Messrs Garrard and Callan were not tainted by views or pressures surrounding Daniel's placement.
Mr Phillips did not make this report available to SGHS because of his concerns regarding it. He felt that Messrs Callan and Garrard had failed to widely consult, and that the issues were complex. He felt that people with expertise on the ground were needed rather than a set of recommendations.
However, it seems to me that his assessment does not take into account the experience and expertise of Messrs Garrard and Callan, the nature of their consultations (recorded in the report) and the methods used. In light of Mr Phillips' criticisms it is unfortunate that the authors of the report were not called to give evidence. The implementation of some or all of the proposals in this report could have averted the deteriorating situation which developed as the year progressed.
In September the aides made an effort to find a way forward by consulting Mr Field. His recommendations were put to Mr Bartley, but the only one implemented was changing the way Daniel went to school.
Mr Bartley also prepared his own plan in September for Daniel's ongoing attendance at school. This was sent to Mr Phillips, but its recommendations were not acted upon.
At the same time Carrie Brooks from the Department of Community Services proposed some strategies, but none of them were acted upon.
5.18 Greater regional involvement
By the time of the 15 October case management meeting Daniel was no longer at school. Mr Phillips had become more involved by this time, and was aware of the Callan Garrard report and other efforts made to improve the situation. He said that, by this stage, Daniel's behaviour was the major consideration for him.
On 5 November a further meeting occurred about Daniel not attended by all members of the case management team. Although denied by Mr Phillips, I prefer the evidence of Mr Bartley, others in attendance, and the notes of the meeting, that Mr Phillips indicated that he had taken over as case manager. Even if his evidence is accepted, he had clearly become much more closely involved, and was not making all information which he had available to Mr Bartley and his staff.
At this 5 November meeting Mr Bartley informed people of the Teachers' Federation motion passed the day before opposing Daniel's inclusion at the School and recommending his attendance at the Support Unit at Grafton High School.
By November, bearing in mind the level to which the situation had deteriorated, Mr Purvis was prepared to have discussions with Glen Clarke, the head teacher at the Support Unit at Grafton High School. Mr Purvis approached Mr Clarke for some guidance on Daniel's placement at SGHS, but Mr Clarke was not keen to provide such advice because he was ideologically opposed to the placement. Mr Clarke's comment, at a meeting which Mr and Mrs Purvis did not attend, that leaving Daniel at SGHS was "bordering on criminal negligence" was insensitive and inappropriate coming from someone in his position, particularly when an alternative placement option was at his Unit. It also demonstrated an intention to restrict the choice of parents of children with disabilities to determine what they consider to be the most appropriate placement for their child.
Daniel's first suspension occurred on 24 April, when he had been at school for 13 days (in term 2). It occurred because he hit his aide Karen Thompson as a result, according to Mrs Purvis' evidence, of being reluctant to attend school. It was for one day. Mr Bartley gave evidence that Daniel's behaviour had been good up to that stage. Yet Daniel was immediately given a short-term suspension rather than a warning as set out in his specific discipline and welfare policy.
It is noteworthy that no other year 7 child that year was suspended during their first term of attending school. However, it is also noteworthy that there is no other recording of a year 7 student hitting a member of staff.
Mr Bartley's evidence on his approach to any physical activity of this nature was very clear. He stated that there was zero tolerance for such behaviour in the school.
I am satisfied that, based on the general Discipline and Welfare Policy for the School, and the policy prepared for Daniel, Mr Bartley's decision to suspend Daniel on this occasion was as a result of Daniel's behaviour being outside that accepted by either the School's or his specific discipline and welfare policy.
The second suspension was on 7 May 1997 (in term 2) for 2 days. On the previous day John Lord had been involved because of problems getting Daniel to school. He had made some suggestions which the communications book records as "working well". Further, Daniel's aide at the time was Del McLennan, who had been working with him for 3 days. Whilst getting changed for PE he began "acting out" and was suspended for kicking a year 10 girl and swearing at his aide.
Mr and Mrs Purvis explain this behaviour as relating to the inexperience of Ms McLennan and her attempt to force him to go to a PE class.
In Mr Bartley's letter to Daniel's parents he advised that the aide had described Daniel's actions as pre-meditated rather than just lashing out. Whilst I accept that Ms McLennan believed this, and that Mr Bartley correctly reported it, it does not accord with the medical and psychological evidence (particularly of Mr Lord) and I do not regard it as the truth.
Mr Bartley's decision here was consistent with his earlier one. Once again I am satisfied that Daniel was suspended because of his behaviour towards the year 10 student. Whilst the complainant's assessment of why the behaviour occurred is probably correct, I am satisfied that Mr Bartley followed both policies in acting as he did.
Following this suspension Mr and Mrs Purvis questioned the appropriateness of suspensions as a behaviour management strategy, asserting that Daniel did not understand that staying home from school was punishment. Mr Lord's assistance was again sought.
The third suspension, on 31 July (in term 3), was for kicking his aide, and was for 2 days. This was the incident where Ms Laforrest kicked Daniel back. Ms Laforrest said that she had been having difficulty persuading Daniel to go to class when he kicked her with the back of his heel. Ms Thomson had been off sick that week and there had been many unexpected changes to his routine.
I accept the evidence that there had been many changes that week which were unsettling for Daniel.
I also accept Mr Bartley's evidence that any other student would have been expelled at this stage for repeated unprovoked violence against staff and students.
I am again satisfied that Mr Bartley's decision to suspend Daniel was on the ground of Daniel's behaviour and in accordance with both relevant policies.
The fourth suspension was on 2 September (in term 3) for 13 days, reduced to 8 days. This was for kicking a year 10 student.
It had been a stressful weekend for Daniel for family reasons and Mr Purvis, who witnessed the incident, whilst not condoning it, felt that it had been taken out of context.
Daniel, according to Ms Thomson's description, had been reluctant to go to school that day, and had already run out on to the road from where his father had brought him back. He was going to "time out" when the incident occurred.
Once again I am satisfied that Mr Bartley's decision related to Daniel's behaviour and was in accordance with the policies. Whilst I appreciate Mr Purvis's view of the incident, I must take account of Mr Bartley's clear position on such actions set out earlier in this section.
The fifth suspension was on 18 September (in term 3) for 12 days. It was for hitting Karen Thompson in the back.
It occurred after Daniel had, for some time and despite some encouragement by Ms Thomson and others, refused to go to class. Ms Thomson told Daniel that she was going to get their bags and, as she walked away, he hit her in the back. She stated that this had never occurred before.
Ms Thomson consulted a physiotherapist and a counsellor over the incident.
Again I accept that Mr Bartley's decision was on the ground of Daniel's behaviour and in accordance with the policies.
The reason recorded for all of Daniel's suspensions was violent or inappropriate behaviour. The respondent asserts that there were a number of other occasions, recorded in the communications book, where such behaviour occurred and where Daniel was not suspended. This is the case, and I accept that submission.
Mr Bartley explained in his evidence that the purpose of the discipline and welfare policy prepared for Daniel was to give him more flexibility, recognising Daniel's disabilities and not having him treated absolutely the same way as everyone else. He explained, having looked at the suspensions register for that year, that many of the students who he referred to as "repeat offenders" were now not at the School - either their places had been declared vacant, or they were put on to distance education programs. He stated that the School would not tolerate violence. The respondent submitted that the suspensions did not constitute less favourable treatment, and that this part of the complaint should be dismissed.
Mr Purvis felt that, although he would question the severity of the responses for two of the incidents, it was appropriate for the School to make some sort of a response on all of these occasions.
The respondent in its submissions asserted that a misconception in the complainant's case (number 6) was that it was the suspensions themselves which were the causal link with the deterioration in Daniel's behaviour in Term 3. The respondent argued, however, that "the suspensions were the direct result of the deterioration of Daniel's behaviour rather than the cause of it." It asserted that Daniel's "acting out" was an indicator of the level of stress placed on Daniel because of being forced into a place where he "increasingly felt isolated and his self-esteem was eroding."
The respondent stated that Daniel "did not belong naturally in the class. His participation was minimal. He was permanently accompanied by a teacher's aide, and he was doing separate work, .. Every day was a reinforcement of his difference and his disability. .. It is a reflection of the basic fact that the school environment in year 7 was not an educational environment which could provide him with many, if any, rewards. It was one that would demonstrate his lack of capacity, not only to him, and reinforce any negative sense he may have had."
The respondent asserted that, if the argument was that suspension was a reward rather than a punishment, then this supports the view that Daniel was not happy at school. If the argument was that Daniel could make no connection between his behaviour and suspension then he lacked the capacity to deal with the demands of high school life.
The complainant rejected these submissions. He asserted that the respondent's own records support the view that the suspensions and their durations increased. This fact is clearly correct. The complainant asserts that in other parts of the respondent's submissions teachers' observations of Daniel becoming increasingly isolated are referred to as insightful, but when Mr Purvis draws this conclusion it is misconceived. The complainant also states that no evidence was led by the respondent to counter Mr Purvis's assertion.
As the year continued there is little doubt that more difficulties occurred around Daniel's placement. The causes of these difficulties were complex. It is too simplistic to say - in isolation - that either the suspensions worsened the behaviour and increased the isolation, or the behaviour worsened because Daniel was not happy and could not cope and thus caused the suspensions.
The respondent asserted that the fifteenth misconception in the complainant's case was that different behaviour strategies implemented at the School would have led to a different outcome in terms of Daniel's behaviour when at the School. The respondent asserted that the criticism of the Principal and-or the School in not obtaining the use of experts in special education to assist the school to develop a program to accommodate Daniel is based on an inherently invalid assumption. The assumption is that there are no parental responsibilities for the way in which a student conducts themselves at school.
The respondent asserts that if read in abstract it could be assumed that Daniel's behaviour was only manifested at the School. Such an assumption would be flawed, as there was clear evidence that Daniel also "acted out" at home. The respondent asserts that this means that the complainant considers that the School should be able to deal with behaviour that cannot be stopped within the family environment. The family environment is innately less stressful for Daniel than the school environment as it does not include the level of change, continual reinforcement of difference, and loss of self-esteem.
The complainant states that there is no evidence to support this submission, and that it was not put to Mr and Mrs Purvis during their cross-examination. I agree with this view. I cannot find any evidence from Mr and Mrs Purvis where they assert that they do not have some responsibility for Daniel's behaviour, or where they assert that the school should be able to stop behaviour which cannot be stopped in the family environment. They recognised that this behaviour occurred, and were keen to find behaviour management strategies to deal with it.
The complainant provided a colation of evidence gathered from the 1997 suspension register for SGHS and from the diary of Ms Fitzmaurice, the year 7 co-ordinator for that year. This colation is presented as tables attached to submissions. The complainant asserts that these tables, and the diaries, demonstrate that other students in year 7 whose behaviour could be described as violent, aggressive, or inappropriate were not suspended. I accept these submissions as correctly assessing the evidence on this issue. This serves to provide a possible comparator relating to these allegations. However, the behaviours outlines were not as extreme or did not occur as often as did those of Daniel.As already indicated, I am satisfied that Mr Bartley imposed the suspensions in compliance with the policies and as a result of Daniel's behaviour. Whilst I understand Mr Bartley's approach on this point (zero tolerance to what he described as violence) it was the outcome that may have been different if that more flexibility had occurred. I accept the evidence of Mr Purvis and Mr Lord that Daniel could not make the association between his behaviour and the suspensions. This does not, in my view, indicate an incapacity to cope with the stresses of high school life. It indicates that other management strategies should have been tried before the placement was brought to an end. Mr Purvis requested this, Mr Lord offered to assist, and Messrs Garrard and Callan made recommendations. None of these options were taken up.
My decision on this and the next section of the complaint must turn on whether or not Daniel's behaviour is a consequence of his disability for the purposes of the Act. This is a question of law which I will address in section 6.
Daniel was excluded from SGHS on 3 December 1997. His parents assert that they were not informed until 5 December, although Mr Bartley asserts that they were told earlier. Both Mr Bartley's account of the conversation between Mr and Mrs Purvis and him in his office on 3 December, and Mrs Purvis' notes of that conversation, suggest that Mr Bartley advised of his decision on that day. It is also consistent with the fact that Mr Bartley declined to allow Daniel to remain at school on that day. Exclusion was certainly discussed, as rights of appeal were referred to.
The respondent further argued that Mr Purvis must have known of Daniel's exclusion when he put out a media release referring to the Department refusing a child with a disability access to school. However, refusing access is different, in my view, to exclusion.
I find on this point that there was miscommunication and that, when Mr Bartley discussed the issue on 3 December, he indicated his decision but Mr and Mrs Purvis thought the matter was only under consideration.
It is true that Mr Bartley wrote to the Department of Community Services (Daniel's legal guardian) on December 3 1997 advising of the exclusion. The evidence indicates that this was on the advice of the Legal Section of the Department. There is no evidence to support the assertion that DOCS had effectively taken over the liaison role with the School after 15 October 1997. They had become more involved, it is true, but in the context of the situation it would be unrealistic to think that Mr and Mrs Purvis - after all of their previous involvements and efforts - would allow this to occur or would be placed in this position.
It is not necessary for me to determine whether the Department's legal advice was correct for the purposes of my inquiry. However, given the extensive dealings which Mr and Mrs Purvis had had with the School during Daniel's placement, and the anguish which the Department knew exclusion would cause them, this advice was extremely insensitive. If the Department of Community Services were the correct recipient of the letter, the considerate and courteous course would have been to write to Mr and Mrs Purvis as well.
The exclusion did not flow from a further incident, but rather from the fifth suspension. Various strategies to better manage Daniel's behaviour were suggested but not tried.
Although the aides had expressed concerns about returning to work, they were willing to return if some viable strategies were implemented.
Mr Bartley's decision to exclude did not comply with the Department's policy and procedures concerning suspension, exclusion and expulsion of students from school. This policy provides as its principles in part-
"(9) Violent behaviour must be dealt with swiftly and will result in immediate suspension....
(12) When considering these strategies the Principal must ensure that no student is discriminated against on any of the following grounds .. disability .."
It also provides-
"(1) Exclusion is not a substitute for expulsion. Accordingly exclusion may take place only where a long suspension has not resolved the problem, and it is considered that the student might develop self-discipline and co-operative behaviour in a suitable alternative school.
(2) Where a student is excluded from the school district office staff, in conjunction with the Principal and parents or care-giver, will arrange a suitable alternative placement for the student within ten school days. If this cannot be arranged an application for expulsion or a return to the school are the only options.
(3) The Principal must immediately notify the parents or care-giver in writing of an intended exclusion from the school. .."
Although there had been discussions of Daniel's enrolment in the Support Unit at Grafton High School over a long period of time, Mr Bartley did not make arrangements for an alternative placement after 3 December 1997, although he did confirm that there was a vacancy at the GHS Support Unit prior to the exclusion. This accords with the evidence of Mr Simmons, the Principal at Grafton High School. The policy clearly implies that such arrangements will be made after the exclusion has occurred at the commencement of paragraph (2) set out above.
If no such arrangements were made the only alternatives were to seek expulsion, or for Daniel to return to SGHS, but neither of these occurred. Even if arrangements for placement at the Support Unit had been made, it was the clearly expressed view of Mr and Mrs Purvis that such a placement was not suitable. The policy is unclear as to the weight that the views of the parents would carry, but they are certainly to be involved in the process, although clearly they would not have a right of veto. Further, there was no clear evidence that such a placement would have a positive impact on Daniel's behaviour. Mr Lord, in fact, asserted that such a placement could have a detrimental effect on Daniel's behaviour. This view was supported by the evidence of Mr and Mrs Purvis when discussing Daniel's attendance at the Support Unit during his primary education. I therefore find that the Department was not in compliance with its policy on this issue.
It is not clear, in my view, that the Department of Community Services were in support of the exclusion. Paul Scahill's observations at the case management meeting on 15 October (two days before Daniel's proposed return from suspension on 17 October) were that what was happening was not successful, and that he could not come back on Monday unless things are put into place. This advice was confirmed by Mr Scahill to Mr Bartley on 16 October in a telephone conversation in which he said that Daniel would not be returning to school until the situation was resolved. Whilst the letter from the Department of Community Services dated 27 November supports enrolment in the Support Unit, Mrs Purvis's evidence is that Mr Myers never told her that Daniel must be enrolled in the Support Unit. DOCS representatives were looking for solutions, not supporting exclusion.
Ms Donsworth's report on the fifth suspension was prepared on 25 October 1997. It assessed the reasons behind the suspension and concluded that Daniel was becoming frustrated by being at SGHS. It said: "he is indicating that he has been unable to adjust to all of the different pressures, academic, social and behavioural in mainstream high school...he does not appear to want to come to school and is anxious and unhappy when he is here." The report proposed that he be enrolled at the Grafton High School Support Unit.
Mr Bartley asserted, in correspondence, that the reason for the exclusion was the welfare and safety of Daniel, other students and staff. He referred to Daniel's violent behaviour, and asserted that it had "arisen out of his frustration to cope with formal demands of high school life." However, in his re-examination at page 2297 of the transcript, whilst comparing Daniel's behaviour with another student (SH) in year 8, he suggested that "the behaviour of that student had been more gross in some of his behaviours than Daniel." That student had not been similarly excluded.
I find, based on the correspondence and evidence of Mr Bartley, that the reason for Daniel's exclusion was more broadly based than just the last suspension. It related to Daniel's behaviour leading to the five suspensions, and throughout the period of his enrolment at SGHS. It also related to Mr Bartley's judgement that Daniel could not operate in a regular high school environment as a result of his disability. Mr Bartley's underlying reasoning - unlike that for his decision on the suspensions - included issues broader than just behavioural. Certainly Daniel's behaviour (and its impact on himself and other students and staff) was a factor, but it was not the only factor. The decision also related to Mr Bartley's perceptions of Daniel's success socially and educationally.
Mr Bartley clearly thought that this may not be the end of the matter. After Daniel's exclusion the aides continued to work at SGHS, his teachers prepared final year reports for him on 12 December, and the School received a grant of funding for him for 1998. However, at the end of the year he was removed from the School register as a student.
5.21 Attitude of participants
Much evidence was adduced by both sides on the attitudes of participants to the process, and the negativity and hostility alleged to have been involved. The respondent asserted that the complainant's attempts to infer a "blame the victim" approach to the Department's case was a misconception (number 4). They asserted that their approach had always been that Daniel, to maintain a placement at a mainstream school, must be a full member of the school community. Therefore, along with all other students, he must be responsible for his own actions. The respondent asserted that the complainants failed to properly accord and dispassionately assess the difficulties arising with Daniel's enrolment. It argues that this description is demonstrated by Mrs Purvis' regular description of Case Management Meetings as "hostile" when none of its witnesses found them so.
On the other hand, the complainant alleged that he and Mrs Purvis throughout the process adopted an open approach, that they were proactive in making suggestions for behaviour management strategies, that they participated in meetings and were abreast of Daniel's daily activities through the communications book. They were prepared to co-operate and work with the Case Management team and tried at all times to operate on a positive basis.
The respondent's eighth alleged misconception is that any comments about Daniel which were less than 100% positive are construed as negativity, concentrating on and exaggerating deficits, a gross distortion, and ignoring Daniel's obvious abilities. To a large degree this mirrors the above misconception. It contains the assertion of the Purvis' as having a closed approach. It asserts that teachers were making professional judgements in Daniel's reports, and that Mr Purvis found the amount of derogatory comments extraordinary.
The respondent asserts that the level of Daniel's disabilities were downplayed, but I find this hard to accept when considering the numerous medical and other professional reports provided to the School, and the recognition by both Mr and Mrs Purvis in the witness box of some of Daniel's deficits. This is also confirmed in notes of Mrs Purvis made available to the inquiry.
The respondent asserts that evidence on instances of Daniel's behaviour seeks to place responsibility on teachers, aides and others. However, it could equally be interpreted as attempting to find causes for the behaviour so that appropriate strategies could be put in place. In fact, the complainant did propose calling on Mr Lord to assist with different behaviour management strategies.
It would have been impossible for any of the participants in this issue to come to it without some sort of history. The events took place in a regional NSW town, and Daniel's acceptance at the School followed a previous rejection and discrimination complaint. Mr and Mrs Purvis had formed the view that a fully integrated education would be the best course for Daniel. As parents quite appropriately absolutely committed to what they felt to be the best interests of their son they worked towards this aim. Mrs Purvis' assessment of the Case Management Meetings as hostile was, from her perspective, probably quite true. She was a parent trying to persuade SGHS and the Department to educate her son in the way she thought best for him.
The aides who worked with Daniel were also deeply committed to what they saw as his best interests.
On the other side Mr Bartley, and some teachers, adopted a positive approach to the process. Mr Bartley committed a huge amount of his time and energy to its success. Some of the teachers were also very supportive, and prepared to give Daniel's integration a go. However, other teachers had formed views against Daniel's integration (in most cases before even meeting him), and let them influence the way they acted as the year proceeded. Also, Mr Bartley (and others who shared his approach) found the process more difficult as the year proceeded, and started to reassess their views of its likely success.
Further, whilst substantial amounts of financial and staff resources had been committed to Daniel's inclusion at SGHS, advice of those with special education skills was not sought until later in the process, and then not always taken, and much of the information available at Case Management Meetings did not percolate down to the teachers in the classroom.
In this atmosphere (where Mr and Mrs Purvis were totally committed to their view and would not compromise on it; and where many at the School had a different view, and there was therefore neither will nor skills in some cases to succeed in the process) allegations of negativity by the Purvis', and closed mindedness by the School, were bound to arise.
I find that the criticism - if it is a criticism - that can be levelled at Mr and Mrs Purvis is that they were absolutely determined to achieve what they thought was best for Daniel. This at times caused a degree of inflexibility and led to some unfortunate miscommunications - the confusion about their preparedness for Daniel to be assessed being one. Because they did not simply adopt the perceived "accepted wisdom" in parts of the school community about where Daniel should go to school, they were seen as different and difficult.
I find, as indicated above, that Mr Bartley and some of the teachers were committed and positive about the success of Daniel's integration. However, they were disadvantaged by the lack of expertise early in the process from experts in special education, the break down in communications between the case management process and teachers on the ground, the negativity of some of the teachers in the process, and the unwillingness or inability to seek and then implement alternative strategies when some processes were not successful.
Given all of the above, and the complexities of the task to be undertaken, it is not surprising that both sides assessed the other as at fault.
6. THE LAW
6.1 Underlying objectives of the DDA
I accept the fundamental proposition by the complainant that "the objectives of the Act are to promote equality of opportunity for people with disabilities" Garity v Commonwealth Bank (1999) EOC 92-966. In s.3 of the Act, its objects are stated as-
"(a) To eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of- education".
"(c) to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community."
I also accept the complainant's further proposition that, "in the context of education, avoiding discrimination on the grounds of disability means that children with disabilities should have access to mainstream regular schools. It is accepted that segregation is discriminatory: Penn. Assn. For Mentally Retarded Children v Penn 334 F Supp. 1257 (1971) at 1266 and Dalla Costa v The ACT Department Of Health (1994) EOC 92-633 ("Dalla Costa").
The decision by Professor Alston in Dalla Costa states the situation extremely clearly, and I extensively quote from it and adopt it in this decision. In so doing I reject the submission of the respondent that this decision is distinguishable because it deals with services provided by a "special" school as it seems to me that, in making the comparison between services provided as part of segregated and inclusive education, it is exactly on point.
Professor Alston states:
"This brings me to an issue which was addressed to only a limited extent in the arguments put by counsel but which is of fundamental importance. In the area of disability the principle of "mainstreaming" is generally accepted. Its premise is that persons with disabilities should, to the greatest extent possible, be enabled to integrate themselves into the mainstream of society, especially in relation to activities such as education and employment. The principle represents a clear rejection of the practice of exclusion which has historically characterised policy approaches towards disability. (See generally G. Quinn, M. McDonagh & C. Kimber, Disability Discrimination Law In the United States, Australia and Canada (Dublin, Oak Tree Press for the National Rehabilitation Board. 1993)). The principle has been expressed in the following terms in the Introduction to "The Standard Rules on the Equalization of Opportunities for Persons with Disabilities", adopted by the United Nations General Assembly in 1993 (Resolution 48/96 of 20 December 1993):
24. Equalization of opportunities means the process through which the various systems of society and the environment, such as services, activities, information and documentation, are made available to all, particularly to persons with disabilities.
26. Persons with disabilities are members of society and have the right to remain within their local communities. They should receive the support they need within the ordinary structures of education. health, employment and social services.
Evidence was given during the hearing that the ACT Department of Health shares this general philosophy, which is also the cornerstone of the relevant Federal legislation. ...
... This raises the question as to whether the effective inability of a child who has attended Malkara to choose subsequently to go to a mainstream school and to seek access to CHADS services amounts to an exclusionary policy which is, per se, discriminatory within the terms of the Act. It is clear from the evidence provided by the witnesses for the respondent that such an option would not merely be discouraged but would be prevented from being exercised. The Department's response, as expressed by counsel, was that if the parents of a child rejected the advice of Departmental officers to the effect that attendance at a special school was the best, and indeed the only, way in which that child could obtain speech pathology services from the relevant ACT officials, and instead insisted on seeking to educate their child in a mainstream school, then the only way in which the child could access mainstream speech pathology services would be through parental payment for private services. This was justified on the grounds that the Department could not afford to permit parents to choose an option which it believed to be clearly inferior for that child under the circumstances.
But this goes to the heart both of the philosophy of mainstreaming and, of more direct relevance for the determination of this complaint, the requirements of the Discrimination Act and the concepts of equal opportunity and equal citizenship which underlie this Act and other Australian discrimination legislation. This issue can be illustrated by reference to the situation of girls in secondary schooling. There is now an increasing body of opinion that girls do better in a single sex school than in a mixed environment. But while it is entirely acceptable for parents to choose to send their child to an all girls' school, it would be equally unacceptable for the government to prevent girls from attending mainstream (i.e. mixed) schools. The emphasis must be on the maintenance of an appropriate degree of choice on the part of parents and, where appropriate, the child, and the rejection of policies that are per se exclusionary. It may be argued for the respondent in this case that the situation differs from that analogy insofar as there is an overwhelming expert opinion that the mainstream option is inferior. But leaving aside the issue of whether the respondent has effectively demonstrated the existence of such a consensus of expert opinion, the question is whether the mainstreaming option is so unthinkable as to justify an exclusionary policy which simply does not countenance the option. Unless absolute discretion is to be vested in the relevant Departmental officials, it would seem essential that some room be left for parents, and, where appropriate, the child to choose, even at the risk that they will choose an option that the experts consider to be inferior.
The conclusion that exclusion from the mainstream service is discriminatory unless justified by reference to an exception provided by the Act does not depend on an assessment of the service provided in the separate facility as inferior (although the relative quality of the services is relevant to the issue of damage, to which I return below). Unless the respondent can demonstrate that an exception provided by the Act applies, the concept of "separate but equal" - where separation is not a matter of choice - is no more tenable in relation to the concept of discrimination under the Discrimination Act than the United States Supreme Court found it to be under the U.S. Constitution in Brown v. Board of Education (347 U.S. Rep. 483 (1954)) in relation to racially segregated education."
The question of exclusion from mainstream education is not directly relevant overall, as Daniel was enrolled in a mainstream school. However, this decision provides valuable background, and may be relevant to the issue of Daniel's exclusion from SGHS.
The complainant also referred me in submissions to Eaton v Brant County Board Of Education, (1997) 1 SCR 241 at para 67-69, in which the Canadian Supreme Court addressed the objectives of achieving equality of treatment in the context of mainstream education for a child with a disability. I also include this quote which is of assistance in establishing the background on which this decision is made.
" The principal object of certain of the prohibited grounds is the elimination of discrimination by the attribution of untrue characteristics based on stereotypical attitudes relating to immutable conditions such as race or sex. In the case of disability, this is one of the objectives. The other equally important objective seeks to take into account the true characteristics of this group which act as headwinds to the enjoyment of society's benefits and to accommodate them. Exclusion from the mainstream of society results from the construction of a society based solely on "mainstream" attributes to which disabled persons will never be able to gain access. Whether it is the impossibility of success at a written test for a blind person, or the need for ramp access to a library, the discrimination does not lie in the attribution of untrue characteristics to the disabled individual. The blind person cannot see and the person in a wheelchair needs a ramp. Rather, it is the failure to make reasonable accommodation, to fine-tune society so that its structures and assumptions do not result in the relegation and banishment of disabled persons from participation, which results in discrimination against them. The discrimination inquiry which uses "the attribution of stereotypical characteristics" reasoning as commonly understood is simply inappropriate here. It may be seen rather as a case of reverse stereotyping which, by not allowing for the condition of a disabled individual, ignores his or her disability and forces the individual to sink or swim within the mainstream environment. It is recognition of the actual characteristics, and reasonable accommodation of these characteristics which is the central purpose of s. 15(1) in relation to disability.
 The interplay of these objectives relating to disability is illustrated by the evolution of special education in Ontario. The earlier policy of exclusion to which I referred was influenced in large part by a stereotypical attitude to disabled persons that they could not function in a system designed for the general population. No account was taken of the true characteristics of individual members of the disabled population, nor was any attempt made to accommodate these characteristics. With the change in attitude influenced by the Williston Report and other developments, the policy shifted to one which assessed the true characteristics of disabled persons with a view to accommodating them. Integration was the preferred accommodation but if the pupil could not benefit from integration a special program was designed to enable disabled pupils to receive the benefits of education which were available to others.
 It follows that disability, as a prohibited ground, differs from other enumerated grounds such as race or sex because there is no individual variation with respect to these grounds. However, with respect to disability, this ground means vastly different things depending upon the individual and the context. This produces, among other things, the "difference dilemma" referred to by the interveners whereby segregation can be both protective of equality and violative of equality depending upon the person and the state of disability. In some cases, special education is a necessary adaptation of the mainstream world which enables some disabled pupils access to the learning environment they need in order to have an equal opportunity in education. While integration should be recognized as the norm of general application because of the benefits it generally provides, a presumption in favour of integrated schooling would work to the disadvantage of pupils who require special education in order to achieve equality. Schools focussed on the needs of the blind or deaf and special education for students with learning disabilities indicate the positive aspects of segregated education placement. Integration can be either a benefit or a burden depending on whether the individual can profit from the advantages that integration provides"
In a speech titled "The Right To Belong" given by former Disability Discrimination Commissioner Elizabeth Hastings in Sydney in July 1997 she said -
"The Disability Discrimination Act requires schools, teachers, planners, policy-makers, funders to develop non-discriminatory mainstream educational environments. It means that parents, students and their associates can begin to demand them. The offering of parallel or segregated systems will not be seen as sufficient. This is not to say there may not be choice: some parents will prefer to send their children to schools which would be described under the DDA as `special measures', just as some now prefer to send their children (who may or may not have disabilities) to private, religious, community, experimental, Steiner or home-based schools. Now, however, all those schools must, unless they can demonstrate unjustifiable hardship, provide a discrimination free education to girls and boys who have disabilities.
It would be quite difficult, I imagine, for the multimillion dollar state system to demonstrate that it would be an unjustifiable hardship to provide an education to students who have disabilities if they were obliged to respond to a complaint under the DDA."
6.2 Daniel's disabilities
Daniel's disability is described in detail in earlier parts of this decision, and my findings on it are set out in section 5.1 of this decision. That Daniel has a disability for the purposes of the Act is not in dispute.
I note the evidence that some of the teachers at SGHS were not aware of the nature of Daniel's disability, or of some of the disabilities which he has. However, it is not necessary for them to have been aware, or fully aware, of the disabilities in order to have participated in alleged discriminatory acts for which the respondent may be liable, X v McHugh (1994) EOC 92-623.
I also made findings in the previous section based on evidence of Mr Lord with regard to Daniel's behaviour. I am satisfied, from all of the evidence before me, that Daniel's behaviour occurs as a result of his disability. Mr Purvis gave evidence that Daniel's intellectual disability "may manifest itself in his behaviour". The evidence of Dr Wise was very clear that Daniel's behaviour and his intellectual disability "all result from severe brain injury". Dr Wise said "the major part of his difficult behaviour would be disinhibited and uninhibited behaviour." Mr Lord said "his behaviour quite often is a way of expressing himself, particularly when he's finding it very difficult and very emotional".
I am satisfied that, in this case, Daniel's behaviour is so closely connected to his disability that if I find that less favourable treatment has occurred on the ground of Daniel's behaviour then this will amount to discrimination on the ground of his disability. In making this finding I have followed the decisions in X v McHugh (supra), L v Minister for Education (1996) EOC 92-787, and Y v Australia Post (1997) EOC 92-865. In Y's case, the Commission said at 77-068:
"...To discriminate against a person suffering a mental disorder because of the behaviour of that person which directly results from that mental disorder, is to discriminate against that person because of the mental disorder."
I note, in this context, the matter of White v Crown Casino (unreported decision of HREOC, 24 July 1997) where Mr White was refused access to the Casino as a result of his disability. The Commissioner in that case was satisfied that a person without acquired brain injury manifesting the same behaviour and appearance would have been refused access to the Casino. However, White v Crown Casino can be distinguished from the cases mentioned in the previous paragraph and the matter currently under consideration; the former involved a security guard determining which patrons should be admitted to a Casino based on a quite strict set of criteria while the latter cases are regarding situations of employment and education, where the relationship between the parties is ongoing.
It has been argued in some quarters that the more appropriate approach in cases where behaviour is the issue is to consider whether the act of the respondent is indirectly discriminatory, pursuant to s.6 of the Act, as in the matter of H v S R9715697 (unreported decision of HREOC 23 July 1997) This would make unlawful the imposing or application or maintenance of a rule, requirement, condition, practice or other treatment which
* a person with a disability did not or could not comply with;
* had the effect of disadvantaging a person with a disability compared to the effect which it had or would have on persons who do not have that disability; and
* was not reasonable.
In such situations, what is unlawful and what is reasonable have to be considered in the circumstances of each case. Automatic application of a standard penalty, such as suspension for fighting or other disruptive behaviour, may not always be reasonable where a disability has caused the behaviour. Equally, however, the fact that a student has, or is regarded as having, a disability does not necessarily excuse the student from complying with reasonable application of reasonable rules. In such situations, all relevant circumstances would be considered in making such a determination.
In Secretary Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251, Bowen CJ and Gummow J in the Federal Court, (in a passage adopted on a number of occasions by the High Court) speaking of the equivalent provision in the Sex Discrimination Act 1984 (Cth) said at page 263 that the test of reasonableness
"is less demanding than one of necessity, but more demanding than one of convenience... The criterion is an objective one which requires the court to weigh the nature and extent of the discriminatory effect on the one hand against the reasons advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account."
The importance of the purpose of the rule or requirement - protection of the safety or rights of students or staff and the effectiveness of the learning environment- are clearly important and legitimate purposes for an educational authority. A particular way of achieving a purpose, even a compelling purpose, is not reasonable to adopt or to maintain if, in the circumstances, other means of achieving the purpose are reasonably able to be identified and implemented which would not have the same disadvantaging or excluding effect on students with a disability. The nature and extent of the disadvantage resulting from the rule may impact on the level of justification - a severe sanction such as suspension or exclusion may require stronger justification.
The complainant in this matter did not argue s.6. This was because, as set out in submissions,
"there must be a condition or requirement which was imposed on Daniel. He must demonstrate that he has been unable to comply with the condition, while a substantially higher proportion of students without his disability were able to comply. In this case the condition or requirement with which Daniel has not been able to comply has not been imposed on other students. In 1997, Daniel was not required to comply with the standards and practices of the school insofar as those standards and practices related to discipline and welfare. Daniel had a personalised welfare and discipline policy which he was required to comply with. On each occasion that he was suspended, Mr Bartley said that he was suspended in accordance with Daniel's policy. So, because the standards applicable to Daniel were not imposed on any other student the indirect discrimination model is inapplicable."
The complainant alleges that a number of actions of the respondent during Daniel's attendance at SGHS constitute less favourable treatment in breach of s.5 (1) of the Act. The section has been set out in section 3 of this decision, and defines discrimination as less favourable treatment on the ground of the person's disability in circumstances that are the same or not materially different. Subsection (2) of the section provides that circumstances are not materially different because of the fact that different accommodation or services may be required by a person with a disability. This allows a person with a disability to receive services (including education services) which are not exactly the same as those received by a person without the disability (needing to be different or having a different range or intensity as a result of their disability) and not be excluded from coverage by the Act.
When determining whether less favourable treatment has occurred I must be satisfied that there is a connection or causal nexus between the treatment suffered by the aggrieved person and the disability of that person. Without the causal nexus the statutory requirement of "on the ground of" is not met. The phrase implies a relationship of cause and effect between the disability and the less favourable treatment: Human Rights And Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 118 ALR 80 at page 99, cited with approval in Commonwealth v Human Rights And Equal Opportunity Commission (Dopking No. 1) (1993) 46 FCR 191 at page 223. There must be some factor which distinguishes the operation of the decision or action between people without the disability and the person with the disability: Dopking No. 1 at page 208.
The accepted test is the "but for test" as described by Kirby J in IW v City Of Perth, (1996-7) CLR 1 at page 62
"The object of the Act is to exclude the unlawful and discriminatory reasons from the relevant conduct. This is because such reasons can infect that conduct with prejudice and irrelevant or irrational considerations which the Act is designed to prevent. Because persons faced with allegations of discrimination, genuinely or otherwise, assert multiple and complex reasons, and because affirmative proof of an unlawful reason is often difficult, the Act has simplified the task for the decision-maker. It is enough that it be shown that the doing of the Act was by reason of or on the ground of the particular matter in the sense that the unlawful consideration was included in the alleged discriminators reasons or grounds. It must be a real reason or ground. It is not enough to show that it was a trivial or insubstantial one. But once it is shown that the unlawful consideration truly played a causative part in the decision of the alleged discriminator that is sufficient to attract a remedy under the Act."
I accept the submissions of the complainant that what I have to determine in applying s 5 (1) of the Act is:
(i) Is there an act or incident which involved SGHS treating Daniel in a certain way;
(ii) Does Daniel have a disability as defined in s 4 of the Act;
(iii) Has Daniel's disability or disabilities truly played a causative part in SGHS'S reasons for treating Daniel the way it did;
(iv) Has SGHS' treatment of Daniel resulted in Daniel being treated less favourably than SGHS treats or would treat a student without the disability in circumstances that are the same or not materially different.
I have already determined the second question in the affirmative. Clearly there are incidents which fall into the category described by the first question. I must address questions (iii) and (iv) in considering each particular incident.
In A School v Human Rights And Equal Opportunity Commission (1998) 1455 FCA Mansfield J observed:
"Section 5 defining direct discrimination requires a comparison to be made between the way in which the school treats or would treat a student without a disability and the way in which it treated AJ, in the circumstances. In that sense, it does not impose an obligation upon the school to treat AJ more favourably than it would treat a student without a disability. If there is discriminatory treatment it must be on the ground of the disability. If one of the reasons for such treatment is the disability of that person then the conduct constituting the discriminatory treatment is taken to be done because of that reason. .. Such discrimination, if it is found by the Commission to have been made out, is unlawful if it encompasses any one or more of the three matters addressed by s 22 (2) (a) (b) or (c)."
He goes on to say-
"... it is in my view desirable that I make some further observations about s 5 of the DD Act.
I do not wish to be taken as accepting that the obligation not to discriminate against a person with a disability under the DD Act does not involve some obligation to take positive action with respect to a disabled person. Section 7, 8 and 9 recognise circumstances will exist that involve a person with a disability needing to be treated differently. They provide that the treating of a person with a disability less favourably because of such a need will itself constitute discrimination. The accommodation of that need may well require some positive action to be taken. The particular provisions indicating the relationships or events which attract the operation of the DD Act in Pt 2 of the Act then variously contain within them provisions which, in effect despite the definitional provisions of discrimination in ss 5-9, seek to make allowance for particular problems which might arise in the circumstances by the inflexible application of those provisions. For example, in the case of discrimination in employment, s 15(4) in broad terms removes the direct operation of those provisions if the person because of the disability is unable to carry out the inherent requirements of the particular employment, or the action necessary on the part of the employer to accommodate the disability would impose an "unjustifiable hardship" on the employer (the term "unjustifiable hardship" is defined in s 10 (sic)): see Commonwealth v Human Rights and Equal Opportunity Commission (1997) 76 FCR 513. Similar provision is made in ss 16(3), 17(2) and 18(4). There are provisions with a like purpose, but in different terms in ss 19(2), 21(2), 22(3) and (4), 23(2), 24(2), 25(3), 27(3) and 28(3). I observed above that the "exempting provisions" in s 22, in particular that the provision of services and facilities required to accommodate a particular student's disability would impose an unjustifiable hardship on the educational authority, apply only with respect to the obligation to accept a person with a disability into the educational institution, or the terms of that acceptance, under s 22(1), and not to the way in which that person, once admitted to the educational institution, must be treated under s 22(2).
Section 5, including subs(2), is a provision which applies across the spectrum of relationships and circumstances expressed in Pt 2 of the DD Act. The determination of what is less favourable treatment for the purposes of s 5(1) must be measured in circumstances that are not "materially different", and s 5(2) provides that the fact that a person with a disability may require different accommodation or services does not provide a basis for making out that material difference. Thus, it is not necessarily the case that, where the DD Act applies to a particular relationship or circumstance, there is no positive obligation to provide for the need of a person with a disability for different or additional accommodation or services. To the extent that to do so would produce hardship, the particular provisions seek to make allowance for that, including s 22(4).
The absence of any "exempting" provision, such as s 22(4), in respect of the positive obligation which s 22(2) imposes itself gives rise to difficult questions.
There may be circumstances where the educational authority may have been entitled to decline to admit a person with a disability under s 22(4), but did not exercise that opportunity through a common misunderstanding as to the extent of the disability. There may be circumstances where the disability comes on only after admission. It may be that the procedure envisaged by s 55 is then to be brought into play."
The issue of less favourable treatment is dealt with by Commissioner Nettlefold in Garity v Commonwealth Bank of Australia (supra). He concluded that the principle of reasonable accommodation "...should be regarded as a central principle of disability discrimination law. The proper construction of the Act shows that the principle of reasonable accommodation is contained in it." Commissioner Nettlefold's view here was that the use of the word "favourably" in s 5 (1) adverts to the notion of giving aid or help. He said that a mere mechanical measure of the aid or help given, which ignores disparate capacities, needs and circumstances is not sufficient. The accepted approach by the courts is that the respondent has an obligation to make a reasonably proportionate response to the person's disability: Southern Community College v Davis 442 US 397 (1979), and comments by Kirby P as he then was in Jamal v Secretary Department Of Health (1988) 14 NSWLR 452. This is the course that I have adopted in this decision. The respondent, in its submissions, argued that it acts in accordance with a broad range of responsibilities, and that some actions are taken not in compliance with the discrimination laws, but to meet broader obligations to students with a disability and the general community. It asserts that the application of the general laws is being confused with that of discrimination law when the complainant seeks to rely on the reasonable accommodation test when there is in fact no statutory basis for such an exhortation apart from the limited terms of s 5 (2). It asserts that special treatment given to Daniel is given not because of the obligation in s 5 (2) but for other statutory and policy reasons. Therefore to continue with that special treatment, or to introduce further special treatment, is not an act of unlawful discrimination. The complainant on this issue referred me to Haines v Leves (1987) 8 NSWLR 442 at page 456, where Street CJ quoted from the Tribunal's decision:
"... (the Minister's) duty is to provide the services and benefits incidental to a public school education to all students of an appropriate age who require it. Moreover, he must do so within the framework of the relevant regulatory legislation of the day, including anti-discrimination legislation. He cannot evade responsibility under that legislation by saying he has delegated his functions to another person in the educational hierarchy. The duty is his, and he must remain responsible for the manner of its implementation."
I accept this response, and agree with the complainant that a similar view is expressed in Kinsela v Queensland University Of Technology (unreported decision of HREOC, H97/47).
Commissioner McEvoy, in her decision in AJ v A School, remitted to the Commission following Mansfield J's decision in the Federal Court referred to above, said on page 26-7
"However, what obligation is placed on a respondent is raised by the expression in section 5(1) "to treat...less favourably": the concepts of equality and discrimination applied in Australian law (and indeed by common sense) make it clear that people can be treated in exactly the same way but this can nevertheless amount to less favourable treatment for one of those persons because that person has a disability. In the context of constitutional law, which includes discrimination as a constitutional concept, the High Court, in cases such as Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436, has considered this issue. At 478, Justices Gaudron and McHugh considered in what circustances a law could be discriminatory within the meaning of the Constitution:
"A law is discriminatory if it operates by reference to a distinction which some overriding law decrees to be irrelevant or by reference to a distinction which is in fact irrelevant to the object to be attained; a law is discriminatory if, although it operates by reference to a relevant distinction, the different treatment thereby assigned is not appropriate and adapted to the difference or differences which support the distinction. A law is also discriminatory if, although there is a relevant difference, it proceeds as though there is no such difference or, in other words if it treats equally things that are unequal - unless, perhaps, there is no practical basis for differentiation."
Although this analysis of the concept of discrimination was there applied in the context of constitutional law, it is relevant to apply generally in developing a theory of discrimination to apply to the relevant Commonwealth legislation, which includes this Act.
Section 5(2) can provide some assistance in determining what obligation is imposed on a supplier of (as in this case) educational services, in relation to a person with a disability in establishing the appropriate level of behaviour which will truly not amount to less favourable treatment."
She later says (at p.31):
"So how does section 5(2) operate to assist in the interpretation of section 5(1), and in particular the "less favourable" means? The discussions to which I have referred above indicate a general view that section 5(2) does not provide just a description of what amounts to material differences: rather, it assists in determining how to make circumstances of disability not materially different. That is, in some circumstances there may be some positive obligation on a respondent to take steps in order to ensure there is no material difference between the treatment accorded to a person with a disability and the treatment accorded to a person in similar circumstances but without a disability. Mansfield J alludes to this in his judgment in this matter. It is my view that without this interpretation of section 5(2), it would be difficult to establish direct discrimination under the Act, except in the most blatant circumstances, and a person subjected to discriminatory treatment within the intention of the Act would most often have to rely on section 6 and establish indirect discrimination."
The following useful passage is at page 31:
"It is my view the substantial effect of section 5(2) is to impose a duty on a respondent to make a reasonably proportionate response to the disability of the person with which it is dealing in the provision of appropriate accommodation or other support as may be required as a consequence of the disability, so that in truth the person with the disability is not subjected to less favourable treatment than would a person without a disability in similar circumstances."
The respondent has submitted that its actions in providing services to Daniel were motivated by other policy considerations, but I agree with the complainant that the rationale for the provision of those benefits is irrelevant. As the complainant has submitted, once the Department undertakes or agrees to provide such services and facilities, those services and facilities are benefits. Having recognised that Daniel has disabilities which require special services and facilities to function at school, the respondent agreed to provide those services and facilities. They are benefits for the purposes of s 22 (2) of the Act which the School provides to Daniel.
Before considering each individual incident I will deal with some other issues raised regarding discrimination generally. The first of these is s 10 of the Act. This section provides that if an act is done for more than one reason, provided that one of the reasons for the doing of the Act is the disability of the person, then the act is taken to be done for that reason. This is the case even if the reason is not the dominant or substantial reason. As long as part of the reason for the doing of the act is the disability of the person then the law applies.
Further, the motives or intentions of the respondent in doing any act are not relevant to the question of whether that act is discriminatory. Therefore, even where the respondent is motivated by what it considers to be in the interests of the aggrieved person these motives are not relevant, Haines v Leves (supra) at 471.
It is also important to bear in mind that the less favourable element of "less favourable treatment" is subjective. Wilcox J in Commonwealth v Human Rights And Equal Opportunity Commission (1993) 119 ALR 133 at 152 said:
"I do not think it is legitimate to deny that a person is treated less favourably simply because someone else might prefer the treatment offered by the alleged discriminator than that provided to persons of a different marital status. Where there are both advantages and disadvantages of each course of treatment, whether one alternative is more or less favourable than the other will usually be a matter of personal preference. Where there is a mixture of advantages and disadvantages it is not for the employer or the Commission to impose a preference."
The relevance of this issue is clear. Where the respondent, for instance, may see attendance by Daniel at the Support Unit as more beneficial for him this is not a relevant consideration when assessing his exclusion from SGHS as this view was not held by Mr Purvis. Irrespective of whether the respondent is of the view that it would be more beneficial for Daniel, it could still constitute less favourable treatment for the purposes of the Act.
My findings of fact on this issue are set out in section 5.20 of this decision. Noting my findings in section 6.2 above regarding Daniel's behaviour, it is clear that Daniel's exclusion from SGHS was on the ground of his disability.
Mr Bartley's decision was taken as a result of Daniel's behaviour, which Mr Bartley believed impacted on the safety and welfare of Daniel, other students and staff. It was also taken, in Mr Bartley's view, as a result of Daniel's inability to cope with the stresses of high school life as a result of his disability. Whilst I am sure that Mr Bartley took this decision for what he saw as Daniel's best interests, nonetheless it was in breach of ss 5 and 22 (2) of the Act.
Exclusion is clearly less favourable treatment, as Daniel is prevented from attending the School, and denied access to the benefits provided by the School. This would fulfil the requirements of s 22 (2) (a) of the Act. I also accept the submissions of the complainant that if "expel" is given its ordinary meaning, rather than the meaning prescribed to it in the Department's policy, then Daniel has also been expelled from SGHS in breach of s 22 (2) (b).
For the purpose of establishing a comparator under the Act the complainant must establish that Daniel was treated less favourably than another year 7 student at SGHS without his disability. No other student in that year was excluded from school in 1997. The respondent's submissions, which take the comparator as another student who may have hit a member of staff, confuse the comparator (being a person who does not have Daniel's disabilities) with the circumstances in which the comparison is made. As the complainant says in submissions:
"The only purpose of making a comparison is to determine whether the treatment is less favourable. This does not require a finding that the person without the disability has been treated more favourably. Rather that when compared to the student without a disability Daniel has been deprived of a choice he values."
Commissioner McEvoy in her decision in AJ v A School (supra) says at page 32-33 that:
"I am quite satisfied a proper reading of section 5 does not establish any positive obligation on the respondent to take affirmative action towards Fleur, but the respondent certainly could not necessarily treat Fleur the same as another student without a disability who was away from school for a long period, as that comparator would never be sufficiently precise to take into account the consequence of Fleur's disability. Fleur's disability meant not only that she was away from school for long periods and therefore fell behind in her school work, it also meant when she was at school she often worked downstairs, she lost touch with her peers and she, as well as having the other consequences of her illness and disability such as loss of energy and pain, had also lost confidence. A student who is away from school for long periods, for example because he or she is engaged in elite sports training, is a comparator in one sense (the absence from school), but is unlikely to be a sufficiently precise comparator in relation to Fleur's particular circumstances consequential upon her actual disability."
In my view it can also be argued by analogy that Daniel can be compared to another student who did not have a disability and who was excluded from school because he hit or kicked teachers aides or other students. The treatment of two such children would not necessarily be the same and, indeed, would need to be different given that Daniel's behaviour was a manifestation of his disability. Even in such a case the comparator would be imprecise.
I note that Commissioner McEvoy says in AJ v A School on page 37:
"The issue of the comparator student is to some extent a red herring in the light of the view I have taken in relation to the obligation on the School to make a reasonably proportionate response to Fleur's disability. However, there is in any event, little evidence of any differential treatment of Fleur compared with the way a student without a disability but in similar circumstances may have been treated. It is clear Fleur's circumstances were different by virtue of the fact that she was often not at school. When she was at school she was severely inhibited in going upstairs and as a consequence was behind in her work, and when she was at school was isolated in the library to some extent. However, there is no evidence as to how the comparator student without a disability but in similar circumstances was treated by the School. The primary evidence that is before me, which I accept, is that the School made an individual assessment of the needs of each student, including Fleur, and engaged in its educational relationship with each student on that basis.
However, I have concluded above that mere lack of differentiation between the way in which Fleur was treated, and the treatment accorded to a non-disabled student, might not be enough. The School's response must be such that, while not requiring positive discrimination in favour of Fleur, it must behave proportionately and appropriately to ensure Fleur was not subjected to less favourable treatment than the hypothetical comparator would have received."
I must next examine whether the treatment occurred in circumstances which are the same, or not materially different. I cannot do this by reference to the actual incident or conduct itself, because this would defeat the operation of the section. It must be the setting in which the less favourable treatment has occurred. For the purposes of this case, it seems to me that the setting is the circumstances in which a person would be excluded from a high school. Such circumstances may not be the same for a year 7 student as for one in year 12, because of the difference in age and maturity. Also, the time would be relevant as different staff may implement policies differently from year to year. Therefore, the circumstances would be those of being a year 7 student at SGHS in 1997.
It is important to ensure that the disability itself does not become the basis for determining that there are no same or similar circumstances. This was illustrated by Toohey J in IW v City Of Perth (supra) at page 33
"The illustration given in the course of argument before the Court is apt. On the construction for which the respondents contended if dangerousness was a characteristic imputed to a paranoid or schizoid personality, there could be no discrimination against persons with those personalities." This was reiterated in Commonwealth v Human Rights Commission (supra) and Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (supra).
To accept the formulation proposed by the respondent (separating Daniel's behaviour somehow from his disability) would mean that no student with behaviours caused by or integrally linked to their disability could be discriminated against because manifestation of the disability is disturbed behaviour which could pose a risk of injuring others. Any action then taken by a school to suspend or exclude such a child because they posed a safety risk would be permissible. This would circumvent the clear legislative intent to make unlawful discrimination against a person because of a disorder, illness or disease that results in disturbed behaviour: X v McHugh (supra).
It is important to be clear that, in making this finding, I do not propose that the alternative extreme should prevail - that is, that no action can be taken in these circumstances. One must look to the legislation for solutions. In Y v Australia Post (supra), where a finding was made in favour of the respondent, the Act provided an exemption in the area of employment because of an inability to perform the inherent requirements of the job. This reasoning was confirmed in Commonwealth v Human Rights Commission and X (1999) HCA 63 where the ability to perform a job safely was found to be an inherent requirement of the job. Mansfield J discussed this question relevantly to these circumstances in A School (supra) quoted above. The option of seeking an exemption under s 55 of the Act was open to the respondent, but this was not pursued.
Margaret Thornton in "The Liberal Promise" in 1990, refers to an illustrative article by Erica Bell in the Fordham Law Review [51 Fordham Law Review 168] which considers the way in which discipline, behaviour and disability has been addressed by the American courts. Thornton concludes that, where behaviour is an issue, what must be assessed is the cause of misconduct. She states that a distinction is drawn between misconduct which is a manifestation of the behaviour caused by the disability, and misconduct which is not. In this case, my findings of fact clearly indicate that this case clearly involves the former.
Mansfield J. and Commissioner McEvoy's decisions in A School referred to above both indicate that the actions of the respondent must be reasonably proportionate to the disability, and that the respondent is not required to positively discriminate in favour of the complainant. Their are three actions which, in my view, the respondent could have taken to make its actions reasonably proportionate.
Firstly, it should have more broadly consulted in the development of Daniel's discipline and welfare policy. Rather than being developed only by Messrs Donsworth, Bartley and by members of staff, input should have been allowed from Mr and Mrs Purvis, but more importantly from experts in special education such as Mr Field, and in behaviour management such as Mr Lord.
Secondly, once the policy was in place and being followed, the respondent should have been more prepared to be flexible in allowing changes. Behaviour management in such circumstances can best be conducted based on experience, and Mr Field and Mr Lord (not to mention Mr and Mrs Purvis) were willing and very well able to suggest changes which may well have avoided later suspensions and the exclusion.
Thirdly, the advice of special education experts should have been taken more generally. The Callan and Gerard report is probably the clearest example. The withholding of these recommendations by Mr Phillips meant that, at the most difficult time of the placement, Mr Bartley was left to make complex decisions with no advice from the experts in the area who had visited the school and assessed the situation. Another example is the non-provision of training in special education issues for teachers at SGHS. This is dealt with in 6.6.6 below.
Had the respondent acted differently in these three areas suspensions and exclusions may not have occurred. Whilst it is impossible to know this with certainty, I am satisfied that, had they done so, and had the same events occurred, their actions would have been reasonably proportionate in the circumstances, and discrimination would not have taken place.
The decision to exclude was Mr Bartley's. However, it was not in dispute that Mr Bartley, as Principal of SGHS, was acting on behalf of the Department, and so the Department is vicariously liable pursuant to s 122.
I find that, in excluding Daniel from SGHS, the respondent was in breach of ss 5 and 22 (2) of the Act.
My findings of fact on this issue are set out in section 5.19 of this decision. It is clear from that section, and section 6.4 on exclusion, that I am satisfied that the five suspensions of Daniel whilst a student at SGHS in 1997 constituted discrimination in breach of ss 5 and 22 (2) of the Act.
The suspensions constituted the less favourable treatment, as Daniel was deprived of the benefit of attending school. The same or similar circumstances were as set out in 6.4 above. The treatment, as a result of Daniel's behaviour, was on the ground of his disability. Evidence of a comparator is set out in section 5.19. Once again, the Department is liable for Mr Bartley's decisions.
6.6 Other Detriments
6.6.1 Failure to properly assess Daniel's needs on admission
This issue is dealt with in sections 5.7 and 5.10 above. Based on my findings of fact there is no basis for an allegation of discrimination to be made out. The fact that Daniel was not assessed was caused by miscommunication, and was as much the responsibility of Mr and Mrs Purvis as that of the respondent.
6.6.2 Failure to provide Daniel with orientation on commencement
This issue is also dealt with in 5.7. Once again, on my findings of fact, I am not satisfied that the actions of the respondent constituted a detriment for the purposes of the Act.
6.6.3 Failure to implement Principal's recommendations to accommodate Daniel at SGHS
Again, this issue is dealt with in 5.7. For the reasons set out in my findings of fact I am not satisfied that this constituted a detriment.
6.6.4 Failure to adjust Welfare and Discipline Policy to address Daniel's needs and behavioural patterns
This issue is dealt with in 5.13 and 6.4 above. As indicated in those sections, I am satisfied that the Department failed to be flexible in the modification of Daniel's Discipline and Welfare Policy. This is a serious issue, as it was this policy on which suspension and exclusion decisions were eventually made, as indicated above.
The complainant, in his submissions, argued that this constituted a detriment for the purposes of s 22 (2) (c) of the Act:
"Having accepted Daniel's enrolment at SGHS and admitting him as a student, the respondent recognised that he would require special services and facilities...
"Those services were benefits provided by the school and it was obliged to continue to provide those special services and facilities to the extent that it enabled him to participate in regular school life on an equal footing with other students. Failing to provide the guaranteed services and facilities, such as those set out in Mr Bartley's plan, subjected Daniel to a detriment .. by failing to make such reasonable accommodations."
This argument was supported by reliance on Dalla Costa (supra).
The complainant continued:
"This failure resulted in Daniel being denied the ability to enjoy the same standard of care enjoyed by other students. It is accepted that the respondent owes a duty of care to its students and also to its staff members. Daniel was also entitled to the benefits of a duty of care. This duty requires the school to devise and institute a reasonable system of sufficient supervision of young children: Grey by his Tutor v State of NSW (unreported) SC NSW Grove J, 27 February 1998. To achieve this duty it may require a school to be proactive, and implement new systems of procedures. A duty of care will not be satisfied by inaction or passivity."
The complainant also relied on the acceptance in harassment jurisprudence that failure to implement policies and take a proactive role in preventing discrimination, or avoiding a detriment, will result in a finding of less favourable treatment: Sekhon v Ballarat College (1993) EOC 92-552.
The respondent, on the other hand, argued that
"the degree of adjustment and special treatment required by Mr Purvis for Daniel to remain at the school goes far beyond of the terms of section 5. The concept of less favourable treatment was not intended to be extended in the way argued by the complainant."
The respondent argued that the substantial resources it provided went far beyond the requirements of the statutory scheme of the DDA. Once it was clear that the path chosen for him was not suitable, either educationally or socially, then the respondent was bound to provide another path which it did.
I accept the complainant's arguments on this issue. I am satisfied that the inflexibility of the Discipline And Welfare Policy, and the impact which that had in later decisions made to suspend and exclude Daniel, constituted a detriment in terms of the Act. I rely for this finding on the findings in the previous sections on suspensions and exclusion. The question of whether the result of this detriment, being the breaches of the Act described above, is a cause for separate relief will be considered later. However, it is not relevant for this finding.
6.6.5 Failure to develop guidelines in accordance with the Welfare and Discipline Policy
It is not clear to me what the complainant is referring to in this part of his claim. The complainant's submissions do not provide further details. I have therefore made no finding on this head of the claim.
6.6.6 Failure to provide teachers with training or awareness program
This issue is dealt with in 5.7 above. I have noted what in my view is a major concession by the respondent in its submissions on this issue.
I do not accept that in all of Daniel's classes the vast majority of the teaching was done by the teachers' aides. However, this is true of some, and in others they certainly played a major role. The uncertainty of the teachers about how to teach Daniel as a member of their class reinforces my finding of fact that teachers were not provided with adequate training prior to Daniel's arrival.
It should also be noted that, based on the respondent's admissions, Daniel was taught, in the main, by teachers' aides, whereas other children at SGHS were taught by teachers. This, too, would constitute a detriment. The clear comparator here is other students in year 7, and the lessons are the same or similar circumstances. Even though Daniel had DESU material it did follow the standard curriculum, and I do not accept the arguments of the respondent that it was so different and at such a lower level as not to constitute following the same curriculum.
The respondent argued that this complaint was made against the Department, not SGHS, and that the services of teachers trained in "special education" were available at the Support Unit at Grafton High School. However, to accept this submission in isolation would be to reject the findings in Dalla Costa (supra) and others set out in section 6.1 above. Weighed against the undoubted merits of teachers trained in "special education" must be the discrimination by exclusion entailed in attending at the Support Unit.
The complainant made a choice to send Daniel to his local school. In so doing he knew that the services of teachers trained and experienced in "special education" would not be available. However, I am satisfied that the limited attempts by SGHS to make training available to Daniel's teachers constitutes a further detriment in terms of s 22 (2) (c) of the Act. This is a matter which does not flow to suspensions and exclusion, and thus clearly constitutes a ground for separate relief.
6.6.7 Failure to obtain assistance of experts in special education or behaviour
This issue is dealt with in 5.17 and 6.4 above. My findings are clear that this did not occur until late in Daniel's placement, and that when it did most of the recommendations were not acted upon.
Once again I am satisfied that this constitutes a detriment for the purposes of s 22 (2) (c). Apart from the continued input of the DESU, such input was sadly lacking in the placement. For a placement with such complexities I would have thought that the advice of such experts would be a major component. I am satisfied that this failure, in part, led to the eventual ending of the placement. In finding that the complainant has suffered a detriment here I have again accepted the complainant's arguments as set out in section 6.6.4.
6.6.8 Failure to assess Daniel between 18 September and 3 December 1997
This issue is dealt with in 5.20 above. The only assessment of Daniel which was carried out in this period was by Ms Donsworth. She prepared a report as described above.
Whether or not the complainant accepts the result of that assessment, on the facts it was carried out. Therefore, based on my findings of fact this head cannot constitute a detriment for the purposes of the Act.
6.6.9 Failure to inform Daniel and the complainant that Daniel had been excluded from school
This issue is dealt with in 5.20 above. Based on my findings of fact there is no basis for a finding of detriment on this issue.
6.6.10 Failure to follow school policy for dealing with excluded students
This issue is dealt with in 5.20 above. I am satisfied that, as a finding of fact, the School failed to follow the Departmental policy with regard to exclusion of students.
The complainant argued that the result of this failure is that Daniel has not attended school since his exclusion on December 3, 1997. However, the respondent asserts that a place has always been available at the Support Unit of Grafton High School.
The respondent's failure here does constitute a detriment as an alternative placement was not made available. However, in reality it adds little to the finding in 6.4 above, as the only placement which the respondent would have notified, had they done so, is the placement at the Support Unit of Grafton High School. This was not acceptable to the complainant. Therefore, the results of this detriment, and the exclusion, are the same. The question of whether this failure allows me to make a direction that Daniel be returned to SGHS as a student is more relevantly dealt with in the section on relief.
6.6.11 Modifying Discipline and Welfare Policies thus denying opportunity for Daniel to be dealt with according to applicable school policies
This issue was not raised in the original Statement of Issues by the complainant, but was claimed as a detriment at the end of the hearing after the giving of evidence had been completed. The respondent asserted that this was a breach of procedural fairness because the respondent came to meet the claim put against it, and that the complainant's Statement of Issues should have set out that claim. This is particularly so, the respondent said, when the complainant had been represented by competent counsel throughout the proceedings.
The complainant argued that these submissions respond to the matters raised in the course of the inquiry, and also to the respondent's Statement of Issues. He argued that, given the nature of the inquiry process, the extensive evidence led by the respondent, and the length of the hearing, it could not be said that the respondent suffered any disadvantage by these submissions.
Whilst it is true that Commission inquiries are more informal, and that the Commission may inform itself of any matter that it considers appropriate, this particular inquiry was conducted very much in the nature of an adversarial proceeding. Whilst I do not totally reject the right of a complainant to raise new issues I do in these circumstances. Detailed Statements of Issues were prepared by both parties, and both parties were represented by counsel well versed in the operations of this jurisdiction. In such a large case, where most points were energetically contested, I am not prepared to depart from more formal legal procedure on this issue. I have therefore not considered the complainant's arguments on this head of his claim.
Following my findings of law above it only remains for me to determine the relief to be awarded.
7.1 Introductory Comments
I accept the submissions of the complainant that "Daniel has suffered loss and damage as a consequence of the respondent's conduct, and by reason for (sic) the conduct of the respondent Daniel has lost the enjoyment of attending a mainstream school and accessing mainstream education. He has lost friends, he has lost the ability to maintain the opportunity to interact with his peers. He has lost the companionship of peers and he has lost the opportunity to attend a school of choice."
The complainant seeks the following orders-
(i) A declaration that the State of NSW has engaged in unlawful disability discrimination within the terms of s 22 (2) of the Act.
(ii) A declaration that the State of NSW revoke the decision dated 3 December 1997 to exclude Daniel Hoggan from South Grafton High School and follow the terms of the relevant Department policy with respect to the resolution of a decision to exclude a student.
(iii) A declaration that the State of NSW makes arrangements to facilitate Daniel Hoggan's return to SGHS.
(iv) A declaration that the respondent undertake a proper assessment and evaluation of Daniel's needs to identify the special services and facilities he requires to attend South Grafton High School as a student.
(v) A declaration that the respondent provide the facilities and services required by Daniel to participate as a student at South Grafton High School.
(vi) A declaration that the State of NSW appologise to Daniel Hoggan and his foster family for the humiliation and distress caused to them by the respondent's unlawful conduct.
(vii) Damages for the injury to feelings and humiliation experienced by Daniel Hoggan from being excluded from South Grafton High School.
(viii) Damages for the additional expenses incurred by Mr and Mrs Purvis in maintaining Daniel's education at home.
The first order sought relates to a declaration of unlawful conduct in breach of s 22 (2) of the Act which I will make based on my findings in section 6 above.
The rest of the orders deal with three issues:
* Daniel's return to SGHS (orders ii to v);
* an apology (order vi); and
* the awarding of damages (orders vii and viii).
I will deal with the issues in that order.
7.2 Daniel's return to SGHS
Following the making of a declaration pursuant to s 103 (1) (b) (i) I am provided with six alternatives for further declarations. The relevant declaration in these circumstances for consideration is subparagraph (ii),
"a declaration that the respondent should perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant;"
The complainant argues that "what is a reasonable act must have regard to the Objects and purposes of the Act. Further, the Commission construing remedial legislation to promote the Objects of the Act may take into account the international instruments which underpin the Act." I agree with this submission. The complainant goes on to draw my attention to Article 26 (3) of the Universal Declaration of Human Rights. This provision states
"Parents have a prior right to choose the kind of education that shall be given to their children."
This provision, along with the Objects of the Act themselves, taken in conjunction with the comments of Professor Alston referred to in Dalla Costa above, provide clear support for the return of Daniel to SGHS.
I further accept the submissions of the complainant that "it is not the Commission's role to determine what is the best education for the particular child, whether there are alternative placements, and what may be a better placement." L v Minister For Education (QLD ADT No. 39 of 1995, unreported, 18 January 1997) is authority for this. In fact, inquiring into the merits of the educational programs on offer would not be a proper inquiry for the Commission, and would exceed my functions under s.103 which was contained in the Act at the time of this Inquiry and prior to the enactment of the Human Rights Legislation Amendment Act 1999 (Cth).
The respondent argued that I should take into account a document which was originally produced during the proceedings as terms of a proposed settlement, and which set out a basis for Daniel's continued education at the Support Unit of Grafton High School with possible later return to SGHS. However, for the reasons clearly stated in Dalla Costa I am not prepared to consider what amounts to "separate but equal" or segregated education. I am satisfied that such education is, by its nature, discriminatory. Whilst I am aware of the Department's obligations under the Education Act my comments above, supported by the findings in Leves' and Gray's cases (supra), indicate that this must be within the context of not breaching discrimination legislation.
I am satisfied that I do have the jurisdiction to make orders which would mean that Daniel would return to South Grafton High School. Both Mr Jackson for the complainant, and Professor Parmenter for the respondent, gave extensive evidence of the benefits of mainstream education for children with disabilities. Also in that context David Mcrae's report on this issue titled "The Integration/Inclusion Feasibility Study (Exhibit 26) was referred to. It clearly sets out the benefits of educating children with an intellectual disability in a mainstream setting. The respondent asserts that no evidence was before me to support the assertion that children classified as IS (indicating severe intellectual disability) benefit from such education. This does not accord with Mr Jackson's evidence. Further, as Professor Parmenter explained, that view was once held with regard to IM children (those with moderate intellectual disability) and that view has now changed. It seems clear from Professor Parmenter's evidence that there are no studies which allow a finding to be made that mainstream education does not benefit IS children.
Professor Parmenter, in his evidence, outlined the elements necessary for successful integration. When these were put to Mr Bartley he agreed with them. Mr Bartley indicated that employment of a teacher with Special Education expertise would have been the main thing he would do differently if the opportunity occurred. He also acknowledged that if changes to the timetable were required this would be possible.
It appears to me that the Department has the resources to support Daniel's return to SGHS, and the question of costs - while clearly relevant - must be considered in the context of the budget allocation for the whole of the State.
Finally, I am not persuaded that Daniel would have to re-enrol at SGHS. My findings are clear that he was excluded in breach of the Department's policy, and it is clear from the evidence that he was not expelled. Therefore, re-enrolment is not necessary. The Department's policy is clear that, where a suitable placement is not found (in conjunction with the parents) within a specified period of time, as is the case here, then the student returns to the school.
However, I am not minded to make the orders sought by the complainant which would facilitate Daniel's return to SGHS. My decision is based on one factor, and that is the length of time which has elapsed since Daniel's exclusion at the end of 1997. Had Daniel continued at SGHS he would now (in November 2000) be at the end of year 10. Decisions would be being made as to whether he was going to complete schooling at this time or go on to years 11 and 12. Whilst this is a most unfortunate and very regrettable situation, where Daniel was in his development and education at the end of year 7 in December 1997, as where in contrast with he may be now (and where his age-appropriate peers are now) are so disparate that it would be totally inappropriate to return him to that situation. The point at which he left the School and the point at which he would return are also very different for the School. It would be equally inappropriate for me to propose that he commence year 8 in 2001 when he was in year 7 in 1997. This would be unreal and unfair for Daniel.
This part of my decision has been a very difficult part, because, having found that Daniel was discriminated against by being suspended and then excluded from SGHS, I am again going to be the instrument of his exclusion. The reason for this further exclusion is nothing more than the effluxion of time. Delays of many years have been, sadly in my experience, the bane of discrimination complainants. None could be more evocative of dismay and distress than the loss of three years of high school education, with all of its related social development and interaction. Life time friendships are made in this time, and status - particularly in a rural city - is established. It is something that none of us can return to Daniel.
However, the circumstances between those times have changed so much that I cannot direct Daniel's return to the school. I cannot form the view that doing so could constitute a "reasonable act or course of conduct" by the respondent. Because of the effluxion of time I am not satisfied that such a return now would "redress any loss or damage suffered by the complainant."
The complainant submits that this is an appropriate case for an apology to be made, and relies on Gibbs v Australian Wool Corporation (1990) EOC 92-327. This case suggests that apologies are more suited to cases where the discrimination has occurred in the public arena. This case would certainly fall into that category. Daniel's suspensions and exclusion would have been common knowledge in the school community, and no doubt generally discussed in a community such as Grafton. Although some of the broader publicity around the exclusion was sought by the complainant and Mrs Purvis when they put out their press release, the knowledge was general well before that time.
The respondent submits that an apology is not necessary because "the complexities of the case and the issues surrounding the attempt at integration involved considerable stress and work on all sides. There was no endeavour to do anything other than the right thing by Daniel."
I accept the submissions of the respondent with regard to the good intentions of Departmental staff. It is also true that much work was put into Daniel's placement, and that the issues surrounding it were complex. Both Mr Bartley and Mr Phillips have expressed their regret at what they regard as the failure of the placement. I am not persuaded that a public apology will, in reality, add anything to these genuine expressions of concern and disappointment.
I turn now to the final possible remedy provided for in s 103(1)(b).
Daniel Hoggan was the only child excluded from SGHS in 1997. The exclusion, as a result of Daniel's behaviour and "in his best interests" categorised him in a way that no other child in the school was characterised. I accept the complainant's submissions that "if this is the sanction a disabled child faces because of his disability, it is an extremely humiliating and degrading position to place him in."
Whilst Daniel was not the only student suspended from SGHS in 1997 I would reiterate the comments above with respect to the treatment of Daniel. To continue to be removed from the school community in which inclusion was sought must have had a major impact on his level of comfort in that community, and on his self-esteem.
On the subject of other detriments I firstly turn to SGHS's inflexibility with regard to the amendment of Daniel's discipline and welfare policy. I indicated in section 6.6.4 of this decision that I would consider later the question of whether this detriment should be the subject of separate relief. I am satisfied that it should be. Whilst the impact of this inflexibility led to the suspensions and the exclusion, it also had other results. The failure itself has been described above, but it was cause for concern by Mr and Mrs Purvis as neither their input, nor the input of experts in special education in general, and John Lord in particular, were able to be made. It placed Daniel in a generally more restrictive and negative regime made worse by the fact that it did not change after suspensions occurred.
With respect to the failure to provide teachers with training or awareness programs considered in 6.6.6 above, again this impacted on the treatment which Daniel received at the School. The different approaches taken by various teachers clearly reflect this. Whilst this was not in the same category of seriousness as exclusion or suspension, it must be taken into account that its effect spanned the whole of the time that Daniel was at SGHS. Its unavailability also meant that negative views about teaching children with disabilities held by some teachers were not challenged in a positive way which could have assisted those teachers concerned to reassess such views.
The detriment discussed in 6.6.7 relates to the failure to consult with experts in special education. My comments here are similar to those in the above paragraph. This failure impacted throughout Daniel's time at SGHS, and had some bearing on the suspensions and exclusion. However, its separate impact, in terms of the benefits that could have been gained through more positive and informed strategies, affected Daniel throughout his time at SGHS.
The detriment found in 6.6.10 relates to a failure to find Daniel an alternative placement. However, as indicated, that is very bound up with the consequences of exclusion. Whilst it is, in fact, a separate detriment, for the purposes of relief I have considered damages as flowing on from the exclusion, and dealt with this as a consequence.
There is a general principle clearly accepted in human rights law that damages awards should not be so low as to diminish respect for the public policy implicit in remedial and human rights legislation. This is confirmed in cases such as Horne and anor v Press Clough Joint Venture (1994) EOC 92-591 and Elliot v Nanda (1999) EOC 92-988.
Loss of opportunity has also been long recognised in anti-discrimination law as a head of damages: Squires v Qantas Airways Ltd (1985) EOC 92-135; Najdovska and ors v AIS Pty Ltd (1988) EOC 92-223. Whilst there are no cases directly relating to loss of opportunity in school education, it is clearly a basis for such an award to be made.
In a further analogous situation cases have also recognised loss of enjoyment of working environment: Nowland v TNT Skypak and anor (1993) EOC 92-509; Bovill v RZ Mines (Newcastle) Pty Ltd (1995) EOC 92-708. Following this theme, cases have also recognised loss of employment prospects and capacity V v Australian Red Cross (WA) (1999) EOC 92-972. Whilst, again these are not directly on point, the analogies are valid ones.
Daniel's suspensions and then exclusion meant that he lost opportunities to attend school, both during the time he was at SGHS and after the exclusion. For the reasons set out previously in this decision - and very clearly in Dalla Costa (supra) - I am not prepared to consider the offer of a place at the Grafton High School Support Unit as a basis for minimising such damages. Daniel has been required, since the time of the exclusion, to do DESU work at home, thus losing the enjoyment of the school environment. The fact that he has been out of that environment for such a long period of time has caused me to form the view that I should not make directions that he be returned to it. Therefore, his prospects of continued education have also been affected.
I am satisfied that damages should be awarded under the following heads:
* the suspensions and exclusion fall under the head of the loss of the environment of attending school with consequent benefits such as access to library, classroom, recreational and other school facilities; access to normal peer interaction which is analogous to loss of enjoyment of normal working environment;
* loss of the opportunity to complete secondary education at school and the affect of exclusion on life chances including future employment chances and earning opportunities;
* loss of the expectation of receiving a secondary education in a regular and local school environment; and-or
* loss of the right to obtain the benefit of such an education.
The Australian Law Reform Commission report 84 "seen and not heard" in chapter 10 "Children In Education" deals saliently with the effects of exclusion from school. It states:
"10.61 Excluding children from school, on a short or long-term basis can have a serious effect on their education and life chances. A child disrupted from school suffers a number of detriments including disruption to education and a blow to that child's self-esteem. Expulsion is also likely to be felt as rejection. The language used by students - "kicked out of school" or "thrown out" is an indication that exclusion is seen and felt as a hostile and oppressive act, and many children give up on the education system after being excluded from school.
"10.62 There is strong anecdotal evidence to suggest that a substantial proportion of youth offending starts with exclusion from school. While no hard statistical data is available regarding the long-term effects of alienation and exclusion on the lives of young people who leave school before the legal leaving age, there is little doubt that there is a strong correlation between early leaving and criminal activity, poverty, unemployment and homelessness."
Such heads of damage would need to be countered by the possibility that Daniel may not have continued at school for some other reason. However, given normal practices for children in NSW Daniel would most likely have stayed at school until the legal leaving age, if not to the completion of year 10. It is unlikely, given the strength of view and purpose of Daniel's parents, that he would have been withdrawn from school and continued to study at home had not the decisions at the heart of this case been made. I therefore do not regard these as minimising a damages award to any great extent.
I have also taken into account the fact that Daniel has continued to receive education through the DESU. He has therefore not been totally deprived of his opportunities for education. However, he has been deprived of the opportunity to enjoy that education in his local school with his peers.
I have also considered the question of burden of proof in the awarding of damages. Some commercial cases involving the assessment of damages for lost opportunity raise the interesting issue of whether the complainant must prove, on the balance of probabilities, that a benefit would have been derived from the opportunity had it not been lost, and the extent of that benefit. Alternatively, does the complainant simply have to show that there was a possibility that he would take the opportunity had it not been lost. In my view, bearing in mind the remedial and beneficial nature of the relevant legislation, the latter test is the appropriate one for this matter and this jurisdiction.
The level of quantum in analogous employment cases for loss of opportunity seems to range between $3500 and $10000. However, in my view this analogy must be taken as the lower end of the scale, because in such cases the recipients have already commenced, and in some cases been well into, their careers. In this case the loss of opportunity relates to education, which is the foundation not only for possible employment but for many other facets of life.
The only cases relating to the awarding of damages equal to or similar to this situation are my decision on relief in Finney v The Hills Grammar School (unreported decision of HREOC, No. H98/60 dated 13 June 2000) and the decision of Commissioner Carter in Murphy and Grahl on behalf of themselves and Sian Grahl v The State of New South Wales (Department of Education) (unreported decision of HREOC No. H98/73 dated 27 March 2000). In Finney I declared that the school should pay the sum of $42628; $37628 of which was for the difference between a primary private and public school education, and $5000 of which was for general damages. I based the first of these findings on the private school fees for the years in question, which is not directly relevant, but which does give a general value to cases such as this in the education area.
In Murphy v Grahl Commissioner Carter awarded $25,000 damages. However, in this decision, Sian Grahl was able to continue her education at a different primary school.
I have made the following awards of damages for the various incidents of discrimination based on my appreciation both of the facts and of the appropriate awards of damages in this area.
* For the first two suspensions, which were short suspensions, I have awarded $2000 each.
* For the next three suspensions, which were long suspensions, I have awarded $5000 each.
* For the exclusion, and the consequential loss of opportunity and enjoyment of school environment described above I have awarded $20000.
* For the inflexibility regarding the amendment of Daniel's discipline and welfare policy I award $2000.
* For the diminished opportunity provided to Daniel by the respondent's failure to provide teachers with training or awareness programs I award $4000.
* For the diminished opportunity provided to Daniel by the respondent's failure to consult with experts in special education I award $4000.
* This is a total damages award of $49000 to be paid within 28 days of the date of this decision.
In the Finney decision (supra) I also said
"As indicated earlier although Mr and Mrs Finney lodged this complaint it is Scarlet who was aggrieved. I can award damages for the impact of the discrimination on the aggrieved person, but I can only award the damages to the complainants.
"However, I make the award to Mr and Mrs Finney as trustees for their daughter Scarlet, as it was Scarlet who was aggrieved by the discrimination of the school."
I am of the same view in this matter, and my award of damages will be to Mr Purvis as trustee for his son Daniel.
This case has been another example of the long and arduous route which people must travel to obtain redress for discrimination against them. It reinforces the need, particularly in the area of disability discrimination complaints, to find broader solutions to policy and systemic issues than the individual private inquiry process.
The case is also unfortunate in that, whilst many people at SGHS and in the Department (most notably Mr Bartley, the Principal of the school) made genuine and unstinting efforts to make Daniel's placement at SGHS a success, it was unsuccessful. In the main this lack of success was due not to lack of commitment, but to misguided decisions based on inflexibility and a lack of specialist information. Whatever the cause, the consequence for Daniel Hoggan has been that he has not had the benefit of a secondary education with his peers and neighbours. In fact, as with many other people with disabilities before him, he has been excluded from that opportunity. This exclusion has been a great loss to Daniel, and will affect him for the rest of his life.
The education system throughout Australia is currently attempting to come to grips with this issue. Many more children with disabilities are being included in regular schools, and the sector is considering Education Standards under the DDA which will address the issues raised in Daniel's case as well as many others. Success in this venture will provide benefits not only for people with disabilities seeking to participate or already participating at all levels of education. Finally it will be beneficial to teachers attempting to provide the best possible assistance to students. It will also provide benefits to all Australians so participating, who will gain from the enriched environment that the participation of all Australians will provide. As this case has demonstrated, such inclusion will not always be easy. But the reward of including everyone in our education system cannot be gained without hard work, innovative and flexible planning and implementation, and a continued positive attitude to what can be achieved by people with disabilities.
I make the following declarations -
1. That the respondent has discriminated against the complainant on the grounds of the disability of the aggrieved person in breach of s 5 and 22 (2) of the Act.
2. That, pursuant to s 103 (1) (b) (iv) of the Act the respondent pay to the complainant the sum of $49000 as compensation.
Dated this day of November 2000
Graeme Innes AM