October 2006 page 42
Clarifying indirect disability discrimination
By NATASHA CASE
Natasha Case is a lawyer at the Human Rights and Equal Opportunity Commission
WHAT MUST AN AGGRIEVED person claiming indirect disablity discrimination prove to show that they are "not able to comply" with a requirement or condition imposed upon them? The full Federal Court recently considered this question in the appeal of Hurst v State of Queensland,1 clarifying the construction and application of s.6(c) of the Disability Discrimination Act 1992 (Cth) (the DDA).
Facts
Tiahna Hurst was born severely to profoundly deaf. Her first language is Auslan, a type of sign language distinct from signed English.2 On reaching school age, Ms Hurst's parents were anxious to enrol her in a school where she could receive her education in her first language. Ms Hurst's parents enrolled her in a school which did not teach in Auslan, on the understanding that an Auslan interpreter might be provided in the future. In the meantime, they provided external tutoring for their daughter. The school eventually refused to provide an Auslan interpreter.
Indirect discrimination
Section 6 of the DDA provides that indirect disability discrimination occurs when a person is required "to comply with a requirement or condition:
a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and
b) which is not reasonable having regard to the circumstances of the case; and
c) with which the aggrieved person does not or is not able to comply".
Decision
In Hurst and Devlin v Education Queensland3 Lander J found that:
the requirement or condition which the respondent had imposed on Ms Hurst was "that Tiahna accept an education and receive instruction in English without the assistance of an Auslan teacher or an Auslan interpreter";4
a substantially higher proportion of people who were not deaf were able to comply with this requirement,5 and
it was not reasonable for the respondent not to provide an Auslan teacher or interpreter."6
His Honour found that Ms Hurst could not prove that she was not able to comply with the requirement in accordance with s.6(c) of the DDA. According to Lander J, the evidence showed that Ms Hurst could "cope" with the requirement that she be taught in English (including signed English) without an Auslan teacher or interpreter, in the sense that she was able to "keep up with her hearing peers".7 On that basis, Ms Hurst's claim failed.8
Ms Hurst appealed to the full court.
Full court appeal
The central issue on appeal was how Lander J determined whether Ms Hurst was not able to comply with the school's requirement under s.6(c) of the DDA.
In the earlier case of Catholic Education Office v Clarke 9 , Madgwick J found that because the applicant could not "meaningfully participate" in his school classes, he had suffered a "serious disadvantage" and was accordingly "not able to comply",10 a requirement similar to that considered in Ms Hurst's case.
Ms Hurst argued that an ability to 'cope' could not be equated with an ability to 'comply'.
Being able to cope did not mean that she was not seriously disadvantaged by the requirement that she be educated without Auslan.11 Ms Hurst argued that she was not able to comply with the requirement because it prevented her from participating fully in educational activity.12 This constituted both "less favourable treatment" and "serious disadvantage".13
HREOC, intervening, submitted that, despite the use of the expression 'serious disadvantage' in Clarke, the expression did not amount to a test for compliance under s.6(c) of the DDA. 14 HREOC argued that where a person could prove that they had suffered a "nontrivial" disadvantage in complying with a requirement, that was sufficient to demonstrate that they were not able to comply with it.
The state of Queensland argued that evidence of "full compliance" was not required by s.6(c); rather, simply "compliance" was sufficient to prevent an applicant from satisfying that provision.15 It submitted that whether an applicant was not able to comply was a "practical matter"16 and did not raise any question of:
- the extent ofcompliance;17
- how an applicant may achieve compliance,18 or
- whether Ms Hurst was receiving an 'optimal education' as a result of compliance.19
The state of Queensland also argued that Ms Hurst was too young at the time that the alleged discrimination occurred to have suffered disadvantage serious enough to satisfy s.6(c).20
Decision of full court
The full court overturned lender J's decision at first instance and applied Clarke, finding that "it is sufficient to satisfy the component of s.6(c) that a disabled person suffer serious disadvantage in complying with a requirement or condition of the relevant kind, irrespective of whether that person can 'cope' with the requirement or condition. A disabled person's inability to achieve his or her full potential, in educational terms, can amount to serious disadvantage."21
Contrary to the state of Queensland's submissions about Ms Hurst's age, the full court found that "the early learning years are plainly vital to later educational development. Tiahna's long-term disadvantage, to which the experts alluded, was simply that she might ultimately be denied the opportunity to achieve her full potential. On the facts of Tiahna's case, the detriment that she sustained would plainly be regarded as 'serious'."22
Implications
The full court was at pains to point out that "a description of the situation of a particular child, based upon evidence peculiar to that child, does not of itself give rise to a test that is generally applicable to all cases".23
Notwithstanding this cautionary statement, the full court's decision does have implications for future cases. The notion of "serious disadvantage", a concept referred to repeatedly in the full court's reasoning, seems to apply a more strict interpretation of s.6(c) of the DDA than the "non-trivial disadvantage" interpretation proposed by HREOC.
However, the full court's consideration of what amounts to a serious disadvantage may be seen as an affirmation of the standard of treatment that people with disabilities are entitled to receive.
In Clarke, its full court appeal,24 and now in the Hurst appeal, the courts have considered the notions of "meaningful"25 and "full"26 participation in a classroom, and of "obtaining full benefit" and "realising full potential" in education, as factors relevant to the question of how serious an alleged disadvantage is. This approach foregrounds the consequences that attempting to comply with a requirement or condition may have on the quality of education obtained by a person with a disability.
The applicants in these cases achieved the most appropriate educational outcome that their individual circumstances warranted. An approach that considers compliance from the perspective of achieving full potential and meaningful participation in education may be welcomed as one suited to achieving the beneficial purposes of the DDA.
ENDNOTES
1. [2006] FCAFC 100 (Ryan, Finn and WeinbergJJ).
2. For a discussion of the significance of Auslan as a language, see Ben Fogarty, "Discrimination Law; The silence is deafening - Access to education for deaf children" June 2005 IM,W Society Journal 78; Hurst, below n 3, [728], [125]- [131]; Hurst FC, above nl, [26] -[39],
3. [2005] FCA405 (Lander J).
4. Ibid [86]. In Hurst FC, above nl [2], the Court states that the requirement is 'that she be taught in English (including signed English) without the assistance of an Auslan teacher, or an Auslan interpreter'.
5. Hurst, above n 1, [79]; Hurst FC, above n 3, [3],
6. Hurst, above n 1, [797]; Hurst FC,above n 3, [3],
7. Hurst, above n I, [819].
8. Ibid [809]-[821].
9. (2004) 138FCR121.
10. Ibid [49].
11. /fore* FC, above n 3, [45].
12. Ibid [51].
13. Ibid [55], [56].
14. Ibid [68]. HREOC's submissions may be accessed at wwinhumanrights.gov.au/legal/intervention/ kurst.html.
15. Ibid [96] [98] [99].
16. Ibid [93].
17. Ibid [100],
18. Ibid [102].
19. Ibid (98] [99].
20. Ibid [114H115], [129].
21. Ibid [134].
22. Ibid [130].
23. Ibid [126], [131].
24. Catholic Education Of/ice & Anor v Clarke [2004] 138 FCR 121.
25. Clarke, above n 9, [49].
26. Catholic Education Office & Anor v Clarke, above n 24, [11].
