DISABILITY DISCRIMINATION ACT 1992
WILLIAM CARTER QC
Number of pages - 71
SYDNEY, 15-18 June, 9-11, 30 August, 17 September 1999 (hearing), 27 March 2000 (decision)
Ms Eastman of counsel instructed by Ms Hannon of Gilbert and Tobin for the Complainants
Ms Ronalds of counsel instructed by Ms Rizzo of the NSW Crown Solicitors Office for the Respondents
See final paragraph.
WILLIAM CARTER QC
Sian Grahl was born on 10 March 1991. She suffers a severe disabling physical condition known as Spinal Muscular Atrophy, which is a neuro-muscular disease. The disease is a degenerative genetic disorder whereby her muscles have and will become progressively weaker and less able to support her body. When she first attended school on 1 February 1996 she was barely able to walk without support. By September 1997 she was required to use an electric wheelchair and could not walk at all. She has difficulty in grasping and holding a pen or pencil. She is easily fatigued and needs assistance with toileting. She needs to be lifted but cannot sit for long periods unaided. At the end of 1996 she could sit unassisted for a little while but had to be supervised because if she was bumped or leaned too far she would fall onto the floor. By 1997 she could sit for a maximum of 30 minutes only in an upright position before requiring assistance. She does not have an intellectual disability.
Her parents, Ms Marita Murphy and Mr Burkhard Grahl, have made complaints to the Human Rights and Equal Opportunity Commission ("the Commission") on her behalf and they themselves are complainants also. The details of the various complaints are set out in Section 2 of this determination.
Sian at the material time lived with her parents in Bellingen, a small town in Northern NSW. Her and her parents' complaints allege unlawful discrimination on the part of the NSW Education Department in breach of the Disability Discrimination Act 1992 (Cth) ("the Act") and relate to her enrolment and attendance at Bellingen Primary School ("the school"). Sian attended the school in the academic years 1996 and 1997. In November 1997 her parents sold their home in Bellingen and moved to Sydney. I am satisfied that this resulted from the parents' perception that Sian and they had been unfairly and improperly dealt with in the course of Sian's schooling at the school. It will be necessary to refer in more detail to the matters canvassed in the course of lengthy evidence and contained in the numerous documentary exhibits relating to Sian's attendance at the school, for the purpose of determining whether the complaints or any of them have been substantiated.
2. GENERAL FINDINGS AND COMMENTS
Before undertaking a detailed examination of the evidence which relates to each of the various complaints it is convenient at the outset to make some findings and comments of a more general kind.
The school principal during the relevant period was Mr Wayne Houston.
The enrolment process, which first brought the parents, particularly Sian's mother, Ms Murphy, into contact with Mr Houston during 1995, is itself the subject of complaint and requires close analysis. As will appear, most if not all of the various complaints relate to the conduct of Mr Houston, although the evidence puts in issue also the conduct of others at the School including some teaching staff and more senior Departmental officers in the District Office at Grafton.
It is common ground that from the time shortly after the enrolment of Sian at the School was first canvassed, the professional relationship between Mr Houston and Ms Murphy, in particular, progressively deteriorated. Sian commenced in the kindergarten class at the school on 1 February 1996. By early 1997 the relationship of parent and principal had totally fragmented or was at best turbulent. It had deteriorated to the point that communication between them had effectively ceased. In January 1997 Ms Murphy and Mr Grahl had resorted to the use of formal complaint procedures within the Education Department against Mr Houston. The situation continued to deteriorate even further to the extent that on 1 December 1997 the school principal, Mr Houston, summoned local police officers to have Ms Murphy escorted from the school. Mr Houston had earlier, in a telephone conversation with Mr Phillips, the District Supervisor, on 20 August 1997, threatened his future intention to have Ms Murphy removed from the school grounds in certain circumstances. The catalyst for the unfortunate incident on 1 December 1997 was the closure, effectively ordered by the principal, of the gate which provided the most convenient access to the school for Sian, by now in a wheelchair, and for her mother who was the parent mostly concerned with her care and who habitually accompanied the child on her way to school. The consequential confrontation between mother and school principal prompted the latter to take this draconian and in my view unnecessary option of having the police remove the mother from the school environs. Needless to say, there has been an obvious and continued acrimony between the relevant adults which has made it somewhat more difficult in the course of the lengthy inquiry to ensure an accurate assessment of the relevant events, the evidence of which is marked by a predictable conflict in testimony. Recourse to contemporaneous documents however has assisted and facilitated the resolution of most issues.
The main thrust of the case for the respondents which is apparent from, inter alia, matters put by counsel in cross-examination of Ms Murphy, is that the continuing deterioration in and the ultimate breakdown of the relationship between both parents and the School and its principal was effectively caused by the aggressive, hostile, demanding and unreasonable attitude of Ms Murphy of whom it was said that her claims of discrimination were in truth the consequence of her frustration at being unable to have her every unreasonable demand satisfied immediately and whose allegations, particularly against Mr Houston, were exaggerated and untrue.
On the other hand it was a recurring theme in the evidence of Ms Murphy that she, her husband and daughter were continually confronted by "attitudinal barriers" within the School, but more particularly by those set by the principal, Mr Houston, especially in those situations of controversy which he had the capacity and the authority to influence by reason of his role as principal. Furthermore, this official mindset in her view had also infected Mr Phillips, the District Supervisor, who according to Ms Murphy, "displayed an attitude which was supportive of the attitudinal barriers which we already faced."
An examination of the whole body of evidentiary material and a close assessment of the various personalities can leave one in little doubt that Ms Murphy, an obviously intelligent woman, was a powerful and articulate advocate within the school community and elsewhere for people with disabilities, especially her own daughter. Her interests in this regard extended well beyond the school and into the wider community in matters relating to the rights of people with disabilities. She presented as one who was deeply committed to the cause of her daughter's right to be educated in spite of her severe disability. She became deeply resentful of a regime which she perceived "found us to be problem people." As will appear, the enrolment process extended for her, her husband and Sian over many months, from 7 March 1995 to 24 January 1996. On the latter date, only days before the 1996 school year was to commence, Mr Houston belatedly notified her that her application for the enrolment of Sian was accepted by him. In her evidence she described this process as "an alienating experience."
One cannot sensibly avoid the conclusion that by the time Sian commenced in the kindergarten class at the school on 1 February 1996 the relationship between Mr Houston and Sian's parents was already problematic. As will appear, I am satisfied that the enrolment process was frankly discriminatory and Ms Murphy's description of it as "an alienating experience" was entirely justified. The attitude displayed by the principal during the enrolment process was unhelpful and pedantic. The education of a child with severe disabilities is no doubt a difficult and challenging experience for any teacher or principal but it is one which the Department of Education anticipates and it has in place the policies and procedures to deal with it. In this case, the attitude revealed by Mr Houston during the enrolment period (March 1995 - January 1996) continued during 1996 and 1997 and the frustration experienced by the parents during the early period continued subsequent to Sian's enrolment. Not suprisingly, the relationship between the concerned parents on the one hand and the authoritarian and bookish schoolmaster on the other deteriorated to the point where the latter requested police to remove Ms Murphy from the school grounds.
The evidence reveals several occasions on which strong statements were made by one side or the other. One such example will suffice for the present. Confusion had arisen in March 1997 concerning the purpose of a particular meeting. Ms Murphy and Mr Grahl were of the view that the meeting was designed to deal with the process of conciliation, which Ms Murphy understood would take place consequential upon the complaint which she and Mr Grahl had lodged in January 1997. On the other hand, Ms Osborn, who had replaced Mr Houston as Sian's Case Management Co-ordinator, was of the view that the meeting was to be a Case Management Meeting relating to Sian's schooling. This misunderstanding caused friction. Ms Murphy in her statement had written - "it was clearly a deceptive strategy which hindered the conciliatory process and fostered an environment of deceit." In the course of the hearing she was challenged by counsel for the respondent on the basis that such a statement was "a pretty strong statement" and "an overreaction." Ms Murphy's reply was as follows:
"It was very much what we were living through and not an overreaction. The stress that accumulated within myself and my family dealing with these very unproductive outcomes was paramount to extreme frustration and to lose hope in a process is very - it just robs you of hope."It is easy enough to recognise that a parent as caring for her daughter with a disability as Ms Murphy obviously is could become at times unduly concerned, perhaps unreasonably so, and that this will be reflected in an attitude that the School and, in particular, its principal and staff, had conducted themselves in a manner inconsistent with her and Mr Grahl's expectations concerning their daughter. Common experience dictates that frustration, which is sourced to a deeply caring, even passionate desire, to ensure that the human right to an education of one's child with a disability is honoured, will often lead to confrontation and conflict. That, however, should not obscure my firm view that Ms Murphy and Mr Grahl were concerned only to ensure the recognition by the School and its principal of her daughter's entitlement to an acceptable education in spite of her severe disability. Mr Grahl presents as a mild tempered man who seemingly enjoyed the respect of the local community. He was the Parents and Citizens Association representative on the School Board in 1996. Certainly, their expectations of the School in the education of Sian were high but not unreasonably so. The core problem was the apparent inability of Mr Houston to deal appropriately with the "special needs" of this child.
An educational authority such as the NSW Department of Education recognises the "special needs" in education of students such as Sian Grahl. Policies and the like are developed to guide those who are charged with the immediate responsibility of providing the educational services and facilities to a child with disabilities and his/her parents. In discharging this onerous responsibility, individuals will respond differently for a variety of reasons. The principal of the school, Mr Houston, was seemingly well regarded generally by his staff and the local community. One could not but conclude that the various school teachers and staff who gave evidence were supportive of Mr Houston and of the school and were generally negative in their assessments of Ms Murphy in particular, who was perceived as being unduly aggressive, even at times abusive. Whether this negativity was borne entirely of their own personal experience, was based on hearsay or whether they were subjectively infected by the perceived need to support their school and the principal is very difficult to assess. One thing is generally clear, however, and that is that school staff were generally united in their view that the school had done and was doing all that could reasonably be expected of it and that Ms Murphy was "a trouble maker." The justification for that view is unfounded. It was not long before Ms Murphy became a talking point among teaching staff at the school and the official view of her was essentially negative. The high water mark in this regard was the posting up of a drawing by a staff member in the staff room where regular meetings of the Parents and Citizens Association were held on which was a photograph of one of the school teachers with an injured leg sitting in a wheelchair with the caption "special needs? - everyone in this school is special." This was first observed by Mr Grahl at a Parents and Citizens meeting and it was placed on the wall of the room by a teacher at a time (in or about March 1997) when the relationship between Ms Murphy and Mr Grahl on the one hand and Mr Houston and some staff on the other was at best controversial and at worst marked by ill will and personal animosity. Mr Grahl's removal of the poster was met by a "staff" letter to him which, inter alia, accused him of theft. He returned the poster with an apology. However, this overreaction of the staff was really indicative of the level to which parent/staff relations at the school had sunk. But more importantly the composition and the original placement of the poster in the room, known to be used for parents and citizens meetings, with its subtle but clearly insensitive message was wholly inappropriate. The suggestions that it was intended only as a joke and was a private matter are simply fatuous. I refer to this incident in this context not because it is necessarily relevant in the context of an allegation of unlawful discrimination, but because it better assists one to appreciate the state of the relationship at that stage within the school between the relevant family and the school authority. This was the state of the affairs over which Mr Houston presided by March 1997. The child, it will be remembered, had commenced school only in January 1996.
Mr Houston presented at the hearing in the course of his lengthy evidence as somewhat authoritarian and inflexible but intent on obscuring an obvious impatience with those who challenged his position and/or his decisions which Ms Murphy clearly did and which is apparent on the face of some contemporaneous documents. One only such matter will suffice for the present.
In September 1996 a large industrial bin was shifted from its usual position and placed in the disabled car parking bay, which was used by Ms Murphy. It was said that this was done to accommodate the school dental van which was for a time located at the school. There was no suggestion that the only alternative was for the placement of the bin in the disabled car parking space. There was one only disabled car parking space in an area which provided sixteen car-parking spaces. On a particular morning in September 1996, Ms Murphy had difficulty parking and unloading Sian and her equipment from her vehicle and she encountered what she considered to be a dangerous situation because of at least one other large vehicle which was in the limited area at the time. When Ms Murphy complained about this it led to a verbal exchange between her and Mr Houston in which the latter said words to the effect "that garbage bin will stay where it is until I decide to shift it." This incident and the already developing tension between in particular Ms Murphy and Mr Houston, led Ms Murphy to make telephone contact with Mr Phillips, the District Superintendent, in the course of which she complained of inappropriate treatment by Mr Houston over a significant period. This had extended back to what might be conveniently called "the enrolment period." That matter will be dealt with in detail shortly. The "bin incident" was then merely the most recent example of this deteriorating relationship. Mr Phillips later informed Ms Murphy of the Department's formal complaint policy and procedures and thereupon on or about 26 January 1997 Ms Murphy lodged an official complaint concerning Mr Houston (Exhibit 38 pages 92-97). This had been preceeded by the complaint to Mr Phillips by Ms Murphy, which had related specifically to the "bin incident" and its placement in the disabled car parking space. Correspondence ensued between the school and the District Office about the matter. On 4 November 1996 Mr Houston wrote a memorandum to Mr Phillips and included a photograph of the area and a site plan. The memorandum included the following (page 201A - Exhibit 28 Volume 1):
"You can see from the shot showing another vehicle in "her place" that it would be possible for her to use the area if she wished.If by November 1996, that is, towards the end of Sian's first year at the school, the relationship between Ms Murphy and Mr Houston had become strained and contentious, the lodgement of the formal complaint on 26 January 1997 saw it seriously deteriorate. Mr Houston wrote his lengthy response to the complaint (page 337-344 Exhibit 28 Volume 2). His response, which is dated 7 February 1997, concluded in the following terms:
I know this is a waste of time for both of us but it gets up my nose! Have a nice day!!!!!"
"Whilst I acknowledge that my dealings with Ms Murphy have been less then convivial and that my skills of negotiating with this particular bombastic person are lacking, I will not accept any of the other criticisms levelled against my staff, my school, or myself.Consequently Mr Houston was replaced and Ms Deborah Osborn was recruited by Mr Phillips as the Case Management Co-ordinator in respect of Sian after he had suggested to Mr Houston that he, Mr Houston, should relinquish the role. That strategy however did not relieve the position. Further into the 1997 school year it became progressively worse. In spite of the best efforts of Mr Phillips to relieve the tension even he was unable to successfully resolve the matter of the relationship between the family and the school which continued to deteriorate. The depth of the problem can be best illustrated by a particular document (page 319A Exhibit 28 Volume 2). This is a lengthy diary note made by Mr Phillips after a telephone conversation with Mr Houston. The latter had made contact with Mr Phillips to inform him of another incident which involved Ms Murphy, Ms Julie Daly (the teacher's aide who had special responsibility for Sian) and Mr Walsh, the school counsellor. After referring to the content of the conversation Mr Phillips then noted:
Ms Murphy's treatment of Sian's new class teacher on the first Tuesday of school was abhorrent and lacked any common decency.
It is my intention at this point in time to only communicate with Ms Murphy or Mr Grahl in the written form. I will not accept any appointment to discuss issues with them in any verbal form."
"Mr Houston stated that he felt I had not supported him. I asked what he expected me to do over and above the efforts and support already provided and he stated that I should tell her to "piss off." I advised him that this would be inappropriate, inflame the issue and not resolve the problem."As will appear below, the gate closure incident which occurred on 26 November 1997 led to Mr Houston requesting police to remove Ms Murphy from the school on 1 December 1997. That incident effectively terminated dealings between the parents, Sian and Bellingen Primary School. It will be necessary to canvas the gate closure issue in much greater detail because it is a final but important element in the complaints of discrimination. Shortly prior to this incident and the events surrounding it which occurred on 24 November, 26 November and 1 December 1997, Ms Murphy and Mr Grahl had decided to sell their home and to leave Bellingen and to take Sian to live in Sydney. I am satisfied that this occurred only because of what had happened at the school in 1995-1997.
In 1998 Sian commenced to attend the Department of Education school at Forestville, Sydney where her schooling has since continued. The evidence is that Sian is happy at that school and her parents apparently enjoy a satisfying relationship with the principal and teachers there. The acrimony and contention between parents and principal which marked Sian's relatively short lived attendance at Bellingen Primary School has now, fortunately for the child, abated.
The above is not to be understood as a comprehensive attempt to canvas all of the many incidents of marked hostility which are alleged and which were so frequently attended by robust dialogue, particularly between Mr Houston and Ms Murphy. Rather it is a summary attempt to emphasise one important matter of background and to recite a few instances to illustrate it. That background presents a clear and unmistakable picture of a serious breakdown in the critical and important social relationship between those representing the educational authority in NSW at Bellingen Primary School on the one hand and the parents of a child with a serious disability who attended that public school on the other. The breakdown in that relationship was complete within a relatively short period and in the end was so decisive that the parents with their child elected to leave the place where they had established their home and to move elsewhere. The focal point for all of this was the proposed education of the Sian, a child with severe disabilities, in respect of whom both parents and school had serious obligations.
3. THE COMPLAINTS
3.1 The first complaint - Sian Grahl
On 30 May 1997 the first complaint was made to the Commission on behalf of Sian. At that time Sian was still a student at Bellingen Primary School. The context within which this first complaint was made should be noted. In the months immediately proceeding the lodgement of the first complaint there had been at least the bin incident (September/November 1996), the formal complaint to the Department by the parents concerning Mr Houston and the consequential investigation (January 1997/February 1997), the turmoil involving the holding of the Case Management Meeting in March 1997 and the poster incident and its aftermath (March/May 1997). These were some of the more recent contentious events. The complaint attached a chronology of all events from 7 March 1995, the date of the first contact between parents and principal concerning the enrolment of Sian, to the May 1997 parents and citizens meeting by which time "the poster incident" had continued to increase tension between principal, staff and parents. The details are set out in the Referral Report (Exhibit 1 pages 222-251).
3.2 The second complaint - Sian Grahl
Under cover of a letter dated 26 March 1998 (shortly after the parents had settled in Sydney) written by the complainant's solicitor, there were attached a series of further complaints. Firstly, Ms Murphy and Mr Grahl made "an updated complaint" on behalf of Sian outlining further incidents which had occurred since the lodgement of the first complaint on 30 May 1997. This complaint covered the period to 1 December 1997 on which day the police had removed Ms Murphy from the school consequential upon her complaint to Mr Houston relating to his decision to lock the gate which Sian and her mother had been using for sometime to gain access to the school.
3.3 The third complaint - Ms Murphy and Mr Grahl
This was a complaint by the parents Ms Murphy and Mr Grahl on their own behalf "as persons aggrieved by discrimination against their daughter Sian" in breach of sections 22(1) and (2) and section 23(1) of the Act. In this complaint they allege that they themselves had suffered distress, anxiety and financial loss as a result of unlawful discrimination by the first respondent.
3.4 The fourth complaint - Ms Murphy and Mr Grahl
Ms Murphy and Mr Grahl complained that in breach of section 24(1) of the Act, the respondents discriminated against them as associates of a person with a disability, their daughter Sian, in relation to the services provided by the first respondent.
3.5 The fifth complaint - alleged victimisation - Ms Murphy and Sian Grahl
This complaint was lodged on behalf of Ms Murphy and Sian and alleged unlawful victimisation of them by Mr Houston and the first respondent in breach of section 42 of the Act. The core of this complaint is the events which occurred on 24 November, 26 November and 1 December 1997. These events relate to the gate closure referred to above. The allegation is that the decision to close the gate and Ms Murphy's later removal from the school by police were a consequence of their having lodged a complaint to the Commission. It is a complaint of victimisation in breach of the relevant section.
4. THE ENROLMENT OF SIAN AT BELLINGEN PRIMARY SCHOOL
On 7 March 1995 - Sian was then four years of age - her mother contacted Mr Houston whom she did not know and sought a meeting with him to discuss the proposed enrolment of Sian at Bellingen Primary School for the commencement of the 1996 school year when it was proposed that Sian would enter the school kindergarten. Because of her disability the enrolment of Sian was subject to the Education Management requirements of the Department which deal with the enrolment of children with disabilities (Exhibit 9).
On 10 March 1995 Ms Murphy and Sian went to the school and met Mr Houston. There is a contest between the evidence of Ms Murphy and that of Mr Houston as to what was said during the meeting. In particular it is in dispute as to whether on that occasion Ms Murphy had "presented for enrolment" her daughter Sian within the meaning of paragraph 4 of Chapter 12 of the School Manual: Education Management. According to Ms Murphy, she informed Mr Houston at their first meeting that she wished to enrol Sian at Bellingen Primary School because she and her husband wished to have their daughter educated at the local school with her friends in a mainstream rather than a segregated class. Her version is that Mr Houston replied that "Balydon Primary School is built to cope with students with disabilities. Sian would be better off going to school there." Balydon Primary School was twenty kilometres distant from Bellingen and involved a bus journey of forty-five minutes each way. Ms Murphy replied that it was too far for Sian to travel to Balydon and reiterated that they preferred to have their daughter educated at the local school in Bellingen where she would be with friends. A discussion ensued about the provision of facilities in the course of which Ms Murphy informed Mr Houston that the appointment with him had been sought at that time (10 March 1995) so that there would be enough time before the commencement of the 1996 school year (1 February 1996) for any necessary structural work to be done at the school. She asked to be kept informed concerning progress. Mr Houston denies that he had said to Ms Murphy that Sian would be better off enrolled at Balydon Primary School, the school in the area which had existing facilities for students with disabilities. At the same time, he referred to what he called his "usual practice" of informing parents of other options for enrolments in other schools in the area and that in this context he may have referred to Balydon as a suitable alternative or option for Sian and her parents. As he said in cross-examination, "I certainly made Ms Murphy aware that there were other schools in the area, which had specialist facilities to ensure she actually understood that they existed." It is conceded by Mr Houston, however, that Ms Murphy made it clear that Bellingen Primary School was the parents' choice as to where Sian should be educated with friends in a mainstream rather than a segregated class. I am satisfied that this had been made clear by Ms Murphy from the outset. The parents had discussed the future education of Sian before approaching the school and held the firm view from the outset that Bellingen Primary School was their preferred choice of school. They were familiar with the area; Ms Murphy was active in community affairs there relating to persons with disabilities not only in relation to education but to other matters as well. Her association with SNIBS (Special Needs in Bellingen Shire) is cogent evidence of this.
Ms Murphy's statement which she attributed to Mr Houston - "Sian would be better off enrolling at Balydon Primary School" - carries with it the implication that that was Mr Houston's preference for Sian whereby he would be relieved of any problems associated with the child's enrolment at Bellingen. On the other hand, the statement in question, if it were made, is equivocal and no adverse inference should be properly drawn against Mr Houston by reference to it. The evidence concerning the enrolment of Sian is extensive and covers a variety of subject matter. It is an important element of the complaint, which alleges a breach of section 22(1)(a) of the Act.
I am satisfied that on 10 March 1995 by the time the discussion between Mr Houston and Ms Murphy had concluded, Mr Houston clearly understood the firm unwavering intention of Sian's parents to have the child enrolled and educated at Bellingen. Both Ms Murphy and Mr Houston recognised the need for modifications to the existing facilities and that this was a matter to be pursued within the Department. Such a course of action was well recognised by the enrolment requirements set down by the Department (paragraph 4 of Exhibit 9). It was an issue to be pursued in the normal course. Ms Murphy, as one might expect, asked to be kept informed. A period of ten months was the lead-time before Sian would commence school. The events of 10 March 1995 really permit of no conclusion other than that the parents, recognising the special needs of their child with a disability and given their expressed intentions concerning her education, had "presented" the child for enrolment in terms of the Departmental procedures so that such appropriate modifications and such resources as may have been necessary could be actioned and committed to enable the child to commence school at the commencement of the 1996 school year.
One has to consider whether in the events which had happened both on that day and subsequently, Mr Houston in whom was vested the responsibility for "making the offer of enrolment" (paragraph 3 of Exhibit 9), refused or failed to accept the parents' application on behalf of Sian for admission as a student, for the purposes of section 22(1)(a) of the Act. As will appear, a "formal" application for enrolment was completed by the parents on or about 11 September 1995 but that event has to be seen in a wider context. I am left in no doubt and I so find that on 10 March 1995 Ms Murphy as the parent of the child "presented" that child for enrolment at Bellingen Primary School within the terms of the policy and applied to have the child admitted as a student at Bellingen Primary School for the purposes of section 22(1)(a) of the Act. The events which occurred immediately subsequent to the meeting of 10 March 1995 and later are in my view consistent only with the conclusion that Sian had been "presented for enrolment" at Bellingen Primary School on 10 March 1995.
On 14 March 1995 Ms Murphy received a letter from Mr Houston (page 1 Volume 1 Exhibit 28) requesting that she meet with Mr Houston and Mr Russell "on site to discuss access issues for Sian's possible enrolment." Clearly the "application" had been made. The acceptance or refusal of it remained to be seen. On 23 March 1995 Ms Murphy met at the school with Messrs Houston and Russell. The latter was then the Acting Student Support Services Co-ordinator for the District.
Mr Russell seems to have been in no doubt about the status of the matter because in his memorandum dated 4 April 1995 to Mr O'Connor, Manager, Student Services, (page 1A Volume 1 Exhibit 28) as a result of the meeting of 23 March 1995 he wrote:
"The principal at Bellingen PS has received an application for enrolment of a student with a muscular disorder which seriously affects mobility. It is anticipated that this student would be enrolling in kindergarten in 1996."A preliminary assessment has been made of the school site to identify areas which might require special modification to permit access.
The modifications are then identified. The memorandum concludes:
"It is recognised that a more detailed and expert assessment is required. There is also potential for work to be staged. It would be appreciated if an early site inspection could be arranged in association with the Properties Section in order to develop an appropriate plan for consideration."On the next day, 5 April 1995, in a letter written by Mr Houston to the Director of Schools for the area and headed "1996 Disabilities Enrolment", Mr Houston referred to his having entered into "negotiations" with the parents for the enrolment of Sian. By this letter Mr Houston informed the Director of the site meeting held with Mr Russell on 23 March 1995 and that "Graham (Mr Russell) is to write to the Regional Access Committee seeking appropriate action."
In the light of what occurred immediately after 10 March 1995 one cannot accept Mr Houston's evidence that "I don't believe that she was presenting for enrolment only that she (Ms Murphy) was asking the process that was required for enrolment" and that "it's more a case of seeking information about how will I enrol my student child." If these responses by Mr Houston in cross-examination are not mere pedantry but accurately reflect his state of mind then they present in stark contrast with that of Ms Murphy who herself had initiated the contact on 7 March 1995 and who had on 10 March firmly and explicitly made clear to Mr Houston the parents' intentions and expectations and who had on 23 March 1995 engaged in an on-site inspection with Messrs Houston and Russell in order to discuss the desirable modifications to the structure to accommodate the needs of their child with a disability. Mr Russell clearly understood that Ms Murphy had applied for enrolment. Ms Murphy was herself in no doubt. If in Mr Houston's view it was merely an information gathering exercise then either he clearly misunderstood what was happening or he was manifesting an evasive attitude which would lead one to question his worth as a witness. In my view he was clearly an unsatisfactory witness both in respect of this matter as well as in others.
I am satisfied that on 10 March 1995 application had been made by the parents for the admission of their child as a student at Bellingen Primary School; in the language of the Department's document, she had been "presented for enrolment." The expectation was that Sian would commence in kindergarten at Bellingen Primary School in 1996. It was also the expectation that in the meantime those Departmental officers who had responsibility for the modification of the school structure would do what needed to be done. The note on Mr Russell's memorandum of 4 April 1995 (probably made by Mr O'Connor) suggests that that process was to be commenced at about that time. Having heard nothing Ms Murphy attempted to contact Mr Russell twice during June 1995 but unsuccessfully and her calls were not returned. She sought clarification of Sian's position from Mr Houston during June 1995 but was informed only that the enrolment would not be accepted and was dependent upon a visit to the school by the Public Works Department. On 20 June 1995, three months after the application had been made, Ms Murphy sought from Mr Houston a copy of the first respondent's policy document on the enrolment of children with disabilities.
It is clear from the respondents' documents (pages 2, 5, 5A, 12A of Volume 1 of Exhibit 28) that by June/July 1995 the relevant Departmental personnel were well informed of the need for the proposed structural modifications at the school and that the work was required in anticipation of Sian's attendance at the school at the beginning of the 1996 school year. Those documents and the handwritten notes on them make it clear enough that the matter was in hand and "that Dick Manuel will handle Bellingen Disabled Access." A site meeting was fixed for 18 July 1995. This was initiated by Mr Paul Turner, Project Officer, and in his advice to Mr Houston on 28 June 1995 (Exhibit 28 Volume 1 page 5) he advised the date of the site meeting. It is to be noted that he referred to the subject matter as "Disabled Access" and referred to the need for "accommodating a student with special needs who will be enrolling in 1996." That student was Sian Grahl. Mr Turner was responsible for "co-ordinating the project." A copy of the memorandum to Mr Houston was also sent to Mr Dick Manuel requesting his attendance at the meeting. The meeting was obviously held on the appointed date 18 July 1995. The file note of 19 July 1995 (Exhibit 28 Volume 1 page 5A) notes that those present were Messrs Turner, Manuel and Houston. The needed modifications are identified under the heading "Immediate 1996." Indeed on the same day 19 July 1995 Mr Houston advised Mr Turner by facsimile (Exhibit 28 Volume 1 page 12A) that "I have spoken to the mother of the disabled enrolment and she has indicated that wheelchair access will most likely be required for toilets." (The underlining is mine).
It is difficult to read these documents in context and to avoid the conclusion that the relevant Departmental officers (Mr Houston included) had not only already addressed the issues raised by the application for the enrolment of Sian but expected the enrolment for the 1996 school year to occur and were proceeding on the assumption that matters would be in hand in sufficient time for the child's commencement at Bellingen Primary School in 1996.
I am satisfied that in June/July 1995 Sian's parents knew little if anything of what was occurring within the Department's offices in relation to the enrolment. In June 1995 Mr John Walsh, the school counsellor, had visited the Bellingen Pre-School and had identified Sian and one other young person as "potential students for kindergarten in 1996." As a result of that visit he wrote his report dated 7 July 1995 (Exhibit 28 Volume 1 page 7). He also had consulted professional bodies so as to be better informed in relation to Spinal Muscular Atrophy. The report was written in my view because of his expectation that Sian would attend Bellingen Primary School in the kindergarten class in 1996 and it was part of his role to identify and address issues which could impact on the school community as a result of Sian's enrolment in 1996. He had been informed on 20 March 1995 (page 146 - Exhibit 38) by Mr Houston that Ms Murphy had been in contact with the school "regarding enrolment of Sian Grahl in kindergarten in 1996."
Mr Walsh's report of 7 July 1995 was written by him in his role as school counsellor and I am satisfied that its preparation was consequential upon the requirements of paragraph 4 (c), (d) and (e) of Exhibit 9. The preparation of the report in July 1995 itself assumes the receipt by the school of an application for admission, albeit an oral one.
On 16 August 1995 Mr Walsh had a conversation with Ms Murphy having contacted her by telephone. I am satisfied that this contact was prompted by an e-mail sent by Mr Houston to Mr Walsh the previous day. It is not entirely clear to me what occurred in the course of this conversation. Ms Murphy's version (Exhibit 3 paragraph 1) is not accepted by Mr Walsh (Exhibit 51 paragraph 6) nor does the evidence clarify Mr Walsh's version of it. At the same time it is not difficult to identify from the context the matters which were likely to arise at that time between the parent and the school counsellor. Mr Walsh's basic concerns which are apparent from his report of 7 July 1995 were no doubt related to Sian's disability and the domestic issues that it was likely to raise for the school. Mr Walsh impressed as a concerned professional and his manner of presentation was obviously non-confrontational. He would, I am satisfied, be concerned to do all in his power to meet any problems which the enrolment of Sian was likely to generate. At the same time, by 30 August 1995, Ms Murphy's developing concerns were focused on the enrolment application and its outcome. I am in no doubt that in that conversation Ms Murphy would have articulated a concern about the delay and her ignorance - which was the fact - about matters relating to Sian's enrolment. As the documents demonstrate, Mr Houston was at that time reasonably well informed about progress with the proposal for the structural modification of the school but there had been little or no communication about this to her. I do not accept Mr Houston's evidence that Ms Murphy was kept fully informed throughout this period. It stands to reason that a phone call from Mr Walsh to her on 30 August 1995 was a convenient opportunity for her to attempt to be better informed. On the other hand, Mr Walsh could not enlighten her because he was concerned with a different issue. He was however working on the assumption that Sian was likely to attend the school in 1996.
Integration funding involved Departmental processes whereby adequate resources are made available to the school to provide for the special educational needs of a student with a disability. This was an issue of particular concern for Mr Walsh. I am satisfied that in the course of his conversation with Ms Murphy the need for medical reports was canvassed between them and that later on 30 August 1995 Ms Murphy met with Mr Walsh and provided these to him. All of this was as integral a part of the enrolment process of Sian as was the provision of an acceptable structure. These reports were required not only for the information of relevant persons within the school community but also to support an application for integration funding. Therefore, the enrolment of Sian not only raised for the attention of Departmental officers issues concerning access to the school, it also raised the issue of the provision of additional human resources to enable those in the classroom to better facilitate the teaching of Sian. It is clear that, at the latest, by 18 July 1995, the date of the inspection of the school, the plans for structural alterations were well in hand. By 30 August 1995 the process for integration funding had commenced.
On 8 September 1995 Ms Murphy was advised by Ms Vicky Green, a parent representative on the Student Welfare Committee, that a submission for special aide funding for classroom support for Sian had been presented to the Committee. Ms Murphy was also informed by Ms Green that she (Ms Murphy) and her husband had in the course of the meeting been referred to as "difficult parents" and also that funding may not be granted. Ms Murphy was informed that the closing date for submissions for funding for a teacher's aide (special) was 22 September 1995 and for funding for Commonwealth Integration Programs was 13 October 1995. This "confidential" advice troubled Ms Murphy and on 13 September 1995 she again spoke again to Mr Walsh expressing her concern.
On the same day she spoke to Mr Phillips, the District Supervisor, to raise her concerns. Since 10 March 1995 she had learned little, if anything, from Mr Houston. This seems to have been the first of several contacts which she made with Mr Phillips. In his evidence Mr Phillips recalled his first telephone contact with Ms Murphy. He immediately responded and sought advice from Mr O'Connor as to "what the status of the application was in terms of property issues and I facilitated that because I believe that it was a very valid and reasonable request for the student Sian Grahl to attend Bellingen Primary School." I accept Mr Phillips' evidence (Exhibit 46 - paragraph 3) that he immediately took positive steps to facilitate the enrolment of Sian. He insisted that the matter be given priority and that the necessary works at the school be expedited. He spoke frequently with Mr Houston about the matter. Ms Murphy herself continued to pursue the issue. On 15 September 1995 she spoke to Mr O'Connor and on the same day she spoke to Ms Heather Martin (Head of Special Education). The latter promised to speak to the appropriate persons in the District. I pause to say that Mr Phillips in my view acted properly and responsibly at all times not only in relation to this matter but also in relation to others.
At the request of Mr Walsh, Ms Murphy and her husband were requested by Mr Walsh to complete a formal enrolment form. This was probably on or about 11 September 1995. It was received at the school under cover of an undated letter from Ms Murphy on or about 22 September 1995. It was Mr Houston's evidence that the receipt of this document constituted the "presentation" of the child for enrolment within the terms of the policy and constituted the application for enrolment. This unnecessarily pedantic and unreal view loses sight of all that had transpired between 10 March 1995 and 22 September 1995. From shortly after the 10 March 1995 meeting with Mr Houston, relevant school and Departmental officers had become involved. By the commencement of September 1995 the understanding within the Department was that steps had to be taken in anticipation of Sian Grahl's commencing kindergarten at Bellingen Primary School at the commencement of the 1996 school year. I am satisfied that the presentation and the lodgement of the "Enrolment Form" (Exhibit 28 Volume 1 page 8) was a mere formality and indeed one which in the context was probably seen to be necessary given the status of the internal processes which were already well developed and in place in relation to the proposed works for the school and the existing application for funding for the employment of the teacher's aide (special).
It is in this context that Mr Houston received a letter from Associate Professor Graeme Morgan, a specialist in Spinal Muscular Atrophy at Prince of Wales Children Hospital, dated 26 September 1995. Professor Morgan pointed to the assistance which the Muscle Diseases Clinic could offer the school and offered to have "one or two members of the staff visit the school." He went on to say that "I could probably set it [the visit] up before the end of this year ." Given what had occurred between Ms Murphy and Mr Walsh from mid-August 1995 it is not surprising that the school was being supported by specialist medical advice. Indeed by the time of the receipt of this letter the formal application was already in Mr Houston's hands. In the same context one can note the letter written by Mr Walsh on 13 September 1995 (Exhibit 28 Volume 1 page 15) to the Lismore office of the Department. Mr Walsh referred to the "modifications required at Bellingen Primary School so that Sian Grahl (a student with severe physical disabilities) can attend the school in 1996." This was merely a repetition of the same theme, written by Mr Russell in his memorandum of 4 April 1995 and referred to above.
On 10 October 1995 Ms Murphy again spoke to Mr Walsh and expressed concern that she and her husband had not received any advice from the school in relation to the enrolment of Sian. By this date the expressed concern of the child's mother was entirely understandable. It was apparent to all concerned, including Ms Murphy, that Sian's attendance at Bellingen Primary School in 1996 was contingent upon other matters namely the completion of the structural works and the funding for the teacher's aide. But by that time those matters were well in hand and any enquiry by Mr Houston to appropriate personnel (assuming enquiry was necessary) would have enabled him to ascertain all of the detail of what had happened, the current state of the matter and what the Department's expectations were in respect of them. That would have made possible a simple and easy response to Ms Murphy to relieve her mounting concerns. The regrettable fact is that there was no serious attempt made or seemingly ever considered to communicate with her and to inform her about the relevant matters. Maybe the fact that she and her husband were already seen as "problem parents" did not help.
Instead, in response to the formal application, she only received from Mr Houston his letter dated 11 October 1995 (Exhibit 28 Volume 1 Page 17) which at best can only be described as curious and at worst a classic example of bureaucratic equivocation which in its terms is duplicitous and exceedingly unhelpful for a parent concerned about the education of her child with a disability but who is without access to the relevant store of information within the relevant government Department.
Having acknowledged receipt of "Sian's enrolment application" Mr Houston writes:
"... it has been decided that Sian's enrolment will be deferred until the property issues have been addressed at the school ..."As the policy (Exhibit 9) makes clear, a decision on the enrolment had to be made and could only be made by Mr Houston. His stated decision to "defer" the application "until the property issues have been addressed at the school" poorly reflected the true position. The property issues had been and already were in the process of being addressed. Mr Paul Turner (Project Officer) and Mr Dick Manuel (who had been assigned "to handle Bellingen Disabled Access") had corresponded on 26/27 June 1995; Mr Houston had met with these two men at the school on 18 July 1995 when the "immediate" needs for a 1996 enrolment had been identified. Mr Phillips, during September 1995, had had frequent contact with Mr Houston on the issues relating to Sian's enrolment and was actively facilitating the enrolment process. So much had been done already, to Mr Houston's knowledge, and had he been so minded and were it necessary a simple enquiry would have revealed the considerable progress which had been made. I will refer to the relevant correspondence on this latter point in a moment.
Rather Mr Houston sought to justify his deferral decision in these terms:
"The decision is made on the following grounds.I will deal with this part of the letter also below. Perhaps the high water mark of bureaucratic duplicity appears in the following:
1 The inability of the school to be able to ensure Sian's access to all relevant learning areas in 1996.
2 The inability of the school to be able to ensure Sian's access to relevant ablution areas.
3 The inability of the school to be able to ensure Sian's access to relevant play areas within the school."
"Requests have been made to the relevant departmental officers to address the access issues and once these have been completed the enrolment will be reconsidered."One cannot be certain as to what "requests" are being referred to. Certainly the documents do not reveal any "requests" of recent origin or ones made at the time of or on account of the receipt of the formal application for enrolment. Certainly the text of the letter purports to convey to the reader the fact that because of the "property issues" raised because of the application for enrolment (which according to Mr Houston had only just been made) and because of requests made to the relevant Departmental officers to address "the access issues", the "enrolment will be reconsidered" when the access issues are completed. In short, the tone of the letter is essentially in futuro - your enrolment application is acknowledged; because of it property issues arise; your application is deferred until these issues have been addressed; requests to address these issues have been made and when completed the matter will be reconsidered. That response completely ignores and obscures all that had occurred since 10 March 1995 and which was either within the knowledge of Mr Houston or within his means of knowledge. It did nothing to inform the parents about the likely outcome of the enrolment for 1996.
The current state of the matter at about the time of Mr Houston's letter is clearly revealed by the document Exhibit 28 Volume 1 pages 18-20. The letter from the Public Works Department to the Lismore office of the Department of Education dated 27 October 1995 details the proposed work to be carried out, the scheduling of it and its cost. The document was based on the site visit of 18 July 1995 already referred to. More importantly it concludes:
"As mentioned to Mr D Muddiman in phone conversation on 26 October 1995 this work will be staged to allow a construction program to commence four weeks from the date of formal approval receipt, with completion prior to the start of Term 1 of the 1996 school year."The staging schedule is then set out.
The expectation had always been that Sian would be enrolling for 1996 (see Mr Russell's memorandum of 4 April 1995, Mr Houston's letter to Mr Bonser of 5 April 1995, Mr Turner's memorandum to Mr Houston of 28 June 1995, and the notes of the meeting on site on 18 July 1995 attended by Mr Houston.) It was hardly surprising therefore that by October 1995 those who had the responsibility for the works anticipated that all would be ready to facilitate Sian's enrolment at Bellingen Primary School at the commencement of the 1996 academic year. I am left in no doubt that that was likewise Mr Houston's expectation.
Yet in his letter of 11 October 1995 he writes:
"The decision (to defer) is made on the following grounds:-He concludes the letter as follows:-
1 The inability of the school to be able to ensure Sian's access to all relevant learning areas in 1996.
2 The inability of the school to be able to ensure Sian's access to relevant ablution areas.
3 The inability of the school to be able to ensure Sian's access to relevant play areas within the school."
"The District Superintendent will be informed of this decision and the reasons for it and I wish to advise you that you have the right to appeal to him over this matter. Should you wish to appeal you are requested to do so in writing clearly stating your reasons and address it to [Mr Phillips and his address]."On the same day on which he wrote this letter to Ms Murphy, Mr Houston also wrote to Mr Phillips (Exhibit 28 Volume 1 Page 16) advising him of his receipt of the application for enrolment: the letter is silent as to the matters referred to in the letter to Ms Murphy.
The appeal provisions appear in the policy document (Exhibit 9 paragraph 6). These provisions become operative "when the decision [of the principal] is not to enrol the child." It was submitted for the complainant that the appeal provision is operative only upon a "refusal" by the principal to enrol the child and that by informing the parents of their right of appeal the principal, Mr Houston, had in truth "refused" to enrol the child for the purposes of section 22(1)(a) of the Act. It may be argued that a decision "not to enrol the child" is synonymous only with a decision "to refuse" to enrol the child. On the other hand, the phrase in the policy is capable of a wider interpretation and so, it may be argued, it comprehends a decision to "defer" a decision on an application. In my view nothing turns on this. I will return to discuss the point further.
Certainly Mr Phillips interpreted the events in question as a refusal, albeit a contingent one. In his memorandum to Mr Sutton, Assistant Director General, (probably written in May 1997) Mr Phillips wrote that "the principal refused to formally enrol until all access issues (ramps) had been completed" (Exhibit 28 Volume 1 page 215B).
Meanwhile, Ms Murphy had been informed again unofficially by Ms Vicky Green that special needs funding had been allocated. It will be recalled that Ms Green had on 8 September 1995 (Exhibit 1 page 29) "confidentially" informed Ms Murphy of the submission. This had occurred prior to the receipt of the official application by the school of the enrolment on 22 September 1995. All that remained was the completion of the structural work and this could commence only during the school holidays "with completion prior to the start of Term 1 of the 1996 school year." Therefore by the end of October 1995 the clear expectation must have been that it was likely that the school would be ready not only structurally but also with the teacher's aide (special) available. Not only were the parents of the child not informed of this but Ms Murphy at about this time learned that invitations from the principal had been extended to the parents of all children who would commence school in 1996 to attend the kindergarten orientation day. Ms Murphy and Mr Grahl were excluded by Mr Houston from the invitation list. Ms Murphy rang Mr Walsh on 13 November 1995 and complained that they had not been invited. She asked Mr Walsh "to make sure we receive an invitation." Mr Walsh agreed to speak to Mr Houston.
By letter dated 15 November 1995 Mr Houston wrote to Ms Murphy:
"I would like to extend to you an invitation to attend our Kindergarten Orientation day on Thursday, 23 November 1995 at 10.00 am and enclose the schedule of activities planned for the day.This letter to Ms Murphy needs to be read in the context of a letter dated 17 November 1995 which Mr Houston had received from the Secretary of the Bellingen Shire Access Committee (Exhibit 28 Volume 1 page 26). At that date tenders for the work had been invited. In that letter Mr Casey, the Secretary of the Committee, referred to the "pending alterations to Bellingen Primary School" and invited Mr Houston to consult with the Committee regarding the proposed alterations to help bring about an outcome "which is satisfactory to everyone concerned and which meets the requirements of the Disability Discrimination Act."
This is a courtesy invitation and does not mean that Sian's enrolment has been accepted."
Mr Casey concludes by referring to "the urgency of this matter" and indicated an intention to meet with Mr Houston "before 28 November 1995 when tenders close."
I am satisfied that by the time Mr Houston wrote the letter of 15 November 1995, he well knew what was proposed - that plans and specification were in place for the work, that approval had been sought from the Bellingen Shire Council, that tenders would be let and that it was proposed to complete the work by the commencement of Term 1 in 1996 (see Exhibit 28 Volume 1 pages 15, 18-20, 25, 28, 29).
Mr Houston's letter of 15 November 1995 displays on its face a rigid and inflexible attitude, which was totally unnecessary, but more importantly it completely failed to reasonably inform the parents of what had happened and of what was expected. It was written only because of Ms Murphy's complaint to Mr Wash that she and her husband had been excluded from the list of invitations. It was a "courtesy invitation" extended under sufferance.
I accept the evidence of Ms Julie Daly, the person appointed as the teacher's aide for Sian in 1996, that in December 1995 before the end of the then current school term she had been informed by Mr Houston that she would be appointed to that position in the school year commencing 1996. It is clear from Ms Daly's evidence, particularly in relation to her dealings with Mr Houston in December 1995, that not only had she been advised of her role in caring for Sian in the 1996 academic year, but also that in December by the end of the 1995 final school term Mr Houston was well aware that all funding and related issues concerning the appointment of the teacher's aide (special) for Sian in 1996 were complete. Yet Ms Murphy was not informed.
Returning to the "access issues", it is also clear that by 6 December 1995 Mr Houston well knew of all relevant proposals. By letter dated 29 November 1995 (Exhibit 28 Volume 1 page 29) Mr Phillips had requested Mr Houston to provide him with a "brief status report" of the enrolment. In his reply dated 6 December 1995 (Exhibit 38 page 112) Mr Houston wrote that tenders for the work had closed on 28 November 1995, that a named contractor had been successful, that the contractor had visited the school, that work was to begin "today" and that it was scheduled for completion "by 26 January 1996." Mr Houston therefore by, at the latest, 6 December 1995 could not have entertained any reasonable doubt about the attendance of Sian at Bellingen Primary School in 1996. Yet he failed to keep the parents informed and their application for enrolment of the child remained unresolved and apparently undecided by him. There is no good reason why, by at the latest, 6 December 1995 he could reasonably continue to fail to accept the application for the enrolment of Sian.
On 17 January 1996 during the school holiday period Ms Murphy, who was still ignorant about the fate of the application, again appealed to Mr Phillips for his assistance. By this time Ms Daly had known for weeks of her appointment as Sian's teacher's aide; the structural works at the school were then well advanced and nearing completion. Yet the parents of the child had not been informed by Mr Houston of the fate of their application to enrol Sian at Bellingen Primary School for 1996. In her conversation with Mr Phillips, Ms Murphy spoke of the stress which the enrolment process had caused her, that school was to commence in a few weeks time and that she and Mr Grahl still did not know whether Sian would be attending Bellingen Primary School. She added "we don't even know whether to buy uniforms or not." She asked Mr Phillips to intervene on her behalf.
Finally on 24 January 1996 - one week before school was to commence on 1 February 1996 - Mr Houston wrote a letter to the parents advising of his decision to accept the enrolment (Exhibit 28 Volume 1 page 31). I am satisfied that this was the result only of Mr Phillips' intervention.
Ms Murphy in the course of evidence and in her documents reiterated the stressful nature of the enrolment process for her, which had commenced on 10 March 1995 and had concluded only days before the commencement of the 1996 school year. On the other hand, Mr Houston has maintained the false and illogical view that the enrolment process in this case commenced only with the lodgement of the official enrolment form (September 1995) and that it was only that "application" which called for a decision by him in terms of the policy (Exhibit 9). Up until that time (September 1995), according to Mr Houston, Ms Murphy was concerned only with gathering information. This totally perverse view of the relevant facts cannot be accepted.
It is also clear that from the time of their first meeting in March 1995 their only cause for contact had been the future education of Sian and her enrolment at Bellingen Primary School where her parents had wished her to commence in kindergarten in 1996. Yet by the end of 1995 at which time the enrolment had not been accepted and at a time even before Sian had commenced at Bellingen Primary School, the events of 1995 had created a troublesome relationship between Ms Murphy and the school principal. Mr Phillips referred to this in his summation to Mr Sutton, the Assistant Director General, in or about May 1997 (Exhibit 28 Volume 1 page 205B). He there stated:
"There has been ongoing and escalating tensions between Ms Murphy and Mr Houston since the end of 1995, prior to Sian's enrolment."He then refers in that document to Mr Houston's "refusal" to enrol Sian.
I have made reference to the respondents' submission, which was highly critical of Ms Murphy, and in which she was described as aggressive, hostile, demanding and unreasonable. A fair assessment of what had occurred during 1995 relating to the enrolment of Sian can hardly justify that kind of criticism. She and Mr Grahl chose to approach the school in March 1995 to arrange for Sian's enrolment for 1996. That was on any view a perfectly reasonable approach and it was motivated by the right perception that the school would need time to make suitable arrangements for the schooling of Sian. It was reasonable to assume that that process may take time. In my view Ms Murphy from March 1995 was starved of information about the matters which related to her application for enrolment of Sian and Mr Houston in particular failed to communicate with her appropriately in relation to those matters which would surely have relieved the developing tensions. It was in my view fair for Ms Murphy to describe the enrolment of Sian as an "alienating process." By the time Sian commenced at Bellingen Primary School there had developed "tensions" between Ms Murphy and Mr Houston. An objective analysis of the factual situation clearly suggests that no fault lay with the parent. Her only concern was the enrolment of her child. Yet as Mr Phillips pointed out in his report to Mr Sutton this had created tensions which were ongoing and which escalated from the end of 1995 and the time of the enrolment of Sian on 24 January 1996. I am satisfied that what had happened during 1995 in relation to the enrolment set the scene for all that was to happen during 1996 and 1997.
I turn then to the provisions of section 22 of the Act and the complaint of unlawful discrimination in so far as it is related to the enrolment of Sian.
Section 22(1) of the Act provides:
It is unlawful for an educational authority to discriminate against a person on the ground of the person's disability or a disability of any of the other person's associates:Section 22(4) of the Act provides:-
(a) by refusing or failing to accept the person's application for admission as a student; or
(b) in the terms or conditions on which it is prepared to admit the person as a student.
This section does not render it unlawful to refuse or fail to accept a person's application for admission as a student at an educational institution where the person, if admitted as a student by the educational authority, would require services or facilities that are not required by students who do not have a disability and the provision of which would impose unjustifiable hardship on the educational authority.I referred above to the question as to whether Mr Houston's decision to "defer", that is, his decision "not to enrol" Sian (see his letter of 11 October 1995) amounted to a "refusal" of the application for the admission of Sian as a student at Bellingen Primary School for the purposes of section 22(1)(a) of the Act. It is in my view unnecessary to finally decide the point.
By section 22(1)(a) it is unlawful to discriminate on the ground of the disability not only by "refusing" the application for admission but also by "failing to accept" the application. Whether or not the decision of the principal to defer the application was a "decision not to enrol the child" within the terms of the policy, which in my view it was, I am satisfied that the decision of Mr Houston in the circumstances was one of "failing to accept" the application within the meaning of section 22(1)(a) of the Act. Whilst the letter of 11 October 1995 expressly evidences Mr Houston's intention on that day not to accept the application, it is more consistent with the facts to regard the failure to accept the enrolment as a continuing one. The language of section 22(1)(a) of the Act expresses a distinction between "refusing" an application for admission and "failing to accept" such an application. A refusal of an application has a decisive and definitive quality. A failure to accept is less decisive and has a continuing quality. The stated decision of Mr Houston to "defer" was in my view essentially one of failing to accept the application. Nor can it be properly said that that failure was static and endured only on that date namely 11 October 1995. There is a sound factual basis for the conclusion that the failure to accept the application commenced immediately after the time the application was made, that is, when Sian was presented for enrolment on 10 March 1995. Clearly the failure to accept persisted subsequent to 10 March 1995 and during the period from 11 October 1995 until 24 January 1996. By analogy to the law of contract one can say that the failure to accept the application for enrolment persisted for so long as Mr Houston failed to communicate his decision to accept or refuse the application to the parents. I am satisfied that well prior to 24 January 1996 Mr Houston had decided to accept the enrolment of Sian but had not communicated that decision to the parents. His decision in December 1995 to recruit Ms Julie Daly as Sian's teacher's aide (special) consequential upon the funding approval in November 1995 and the commencement of the structural works on 6 December 1995 subsequent to the closure of tenders on 28 November 1995 really permit of no reasonable conclusion other than that Mr Houston knew at the very latest by 6 December 1995 (the date of his letter to Mr Phelps, see Exhibit 28 page 112) that there would be no possible impediment to him accepting Sian's enrolment for 1996. This was what had been anticipated for so long anyway, certainly since the meetings and discussions in the period April/July 1995.
I am satisfied therefore that the complaint of discrimination in so far as it is based on the enrolment of Sian should be regarded as a continuing failure by Mr Houston to accept the application between 10 March 1995 and 24 January 1996. It is in my view unnecessary to be more specific in defining the period during which the failure to accept the application continued. In the period immediately subsequent to 10 March 1995 it would be reasonable to assume that no definite decision could be taken given the uncertainty of what might occur in relation to the proposed works. However as time went on, for example, by the 18 July 1995 site meeting the fate of the application was becoming clearer. Subsequent events such as the application for resource funding in or about September 1995 meant that it was increasingly more likely that Sian would attend the school in 1996. Therefore the state of things prevailing on or about 11 October 1995 (the date of the letter) which Mr Houston either knew or of which he had the means of knowledge, support the view that at that time it was increasingly likely, indeed reasonably certain, that Sian would be enrolled for 1996. Certainly the calling of tenders by 28 November 1995 must have put all issues beyond doubt. Various Departmental officers had been working towards that end and had been since April 1995. By the end of November 1995 there was no reasonable or realistic basis for Mr Houston's continuing in the failure to accept the enrolment of Sian. Mr Houston's persistence in failing to accept the application "until the last screw and the last bolt is in" is a reflection of the unduly authoritarian and inflexible mind of the school principal and of his developing antipathy towards the parents, particularly Ms Murphy. The question remains whether the facts support a finding of unlawful discrimination in breach of section 22(1)(a) of the Act.
5. THE ENROLMENT COMPLAINT - SECTION 22(1)(a)
5.1 The relevant provisions
It is conceded that the NSW Department of Education is "an educational authority" for the purposes of section 22(1)(a) and that Sian Grahl suffered a "disability" within the meaning of the Act.
The submission for the complainant is that the Department, by its school principal, unlawfully discriminated against Sian Grahl in breach of section 22(1)(a) and that such discrimination was either direct (section 5) or indirect (section 6) discrimination. Section 5 of the Act provides:
"5(1) [Less favourable treatment] 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.5(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 6 of the Act provides:
"For the purposes of this Act, a person ("discriminator") discriminates against another person ("aggrieved person") on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:5.2 Direct discrimination - Section 22(1)(a)
(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."
The Department of Education by its policies seeks to create within its schools an anti-discriminatory environment and its management practices, including its express requirements for the enrolment of children with disabilities, are clearly designed to achieve the policy objectives.
The requirement for the Enrolment of Children With Disabilities provides (see Exhibit 9):
1 In line with the integration policy of the Department of Education every child with a disability must be able to attend their regular neighbourhood school where this is possible and practicable and in the best interests of the child.The Department's Integration Statement expresses the same sentiments.
2 A child with a disability is defined as one as having sensory, physical, psychological or intellectual impairment which has caused a significant loss or reduction of the ability to participate in a regular educational program.
3 It is the intention of the Department of Education that children with disabilities be considered for enrolment in the regular neighbourhood school. The principal will give due regard to the integration policy and the availability of the resources and support services necessary to provide an appropriate educational program for the child. The principal is the person responsible for making the offer of enrolment to the parent.
The enrolment procedures and conditions (Exhibit 9 paragraph 4) are both specific and detailed. Paragraph 4 of Exhibit 9 outlines the procedures with which the principal must comply before making the decision either "to enrol" or "not to enrol" the child with a disability. It is important for obvious reasons that the enrolment of a child with a disability will require of the school authority the provision of particular facilities and resources so that the basic policy of "normalisation" can be implemented in respect of that child.
It was strenuously argued by counsel for the complainant that Mr Houston failed to follow Departmental procedures and policy in a number of respects and that therefore his manner of dealing with the application for enrolment was discriminatory.
As was said earlier, Mr Houston's decision as set out in his letter of 11 October 1995 evidences a decision "not to enrol the child." It was more importantly a failure to accept the application of the child's mother for the admission of Sian as a student within section 22(1)(a) of the Act. Whether that failure constituted unlawful discrimination has to be determined in the light of the events which happened, rather than by reference to any alleged breach of procedure or policy by Mr Houston.
For there to be a finding of direct discrimination it must appear that the school principal, because of Sian's admitted disability, treated her less favourably than in circumstances which were the same or not materially different, he treated or would have treated an able bodied child applying for admission as a student at Bellingen Primary School. It is now established that for there to be a finding "of less favourable treatment" it must be established that Sian suffered some detriment.
I am satisfied that at least during the period 11 October 1995 to 24 January 1996 Mr Houston failed to accept the application for Sian's admission as a student at the school and that that failure cannot be excused on the ground that the provision of the required services and facilities would have imposed unjustifiable hardship on the educational authority. In so concluding, I have taken into account:
* That Ms Murphy presented the child for enrolment on or about 10 March 1995 at a time well before the commencement of the 1996 academic year on 1 February 1996.
* That from, at the latest, 4 April 1995 officers of the Department of Education acknowledged the need for structural changes to the school premises because of the application in respect of Sian and that these were identified at least provisionally by 4 April 1995, the date of Mr Russell's memorandum, following a site inspection.
* That in the weeks/months following there was a continuing acknowledgment and a more detailed assessment made by officers of the Department until on 18 July 1995 a detailed assessment of the required works was made on site by relevant personnel including Mr Houston.
* That at least by 7 July 1995 the date of Mr Walsh's report (Exhibit 28 Volume 1 page 7) a preliminary assessment of the child's condition had been undertaken and a preliminary assessment made of the required resources.
* That this was an ongoing process through the months of August/September 1995 when an application for funding for a special teacher's aide was made consequential upon the collection of the required medical data necessary to support the application.
* That by 26/27 October 1995 the costing and proposed scheduling of the required works had been determined with the completion of the work proposed by the beginning of Term 1 of the 1996 school year (Exhibit 28 Volume 1 pages 18/20).
* That by 17 November 1995 tenders had been invited for the structural works of the school and that such tenders had closed on 28 November 1995 (Exhibit 28 Volume 1 pages 26 and 28 - Exhibit 38 page 112).
* Further that by 6 December 1995 the contract had been let, the builder was on site and it was proposed that the works be completed by 26 January 1996.
* That by November 1995 funding had been approved to permit the engagement of a teacher's aide (special) to assist the special needs of Sian in the classroom.
* That by December 1995 (on a date prior to the end of the 1995 school year) Ms Daly had been appointed by Mr Houston as Sian's teacher's aide and she had accepted the appointment.
* That the parents of the child were not informed by Mr Houston of his decision to enrol Sian until on or about 24 January 1996 - one week prior to the commencement of the 1996 school year and then only after Ms Murphy had contacted Mr Phillips on 17 January 1996.
I am satisfied that Mr Houston's decision not to enrol Sian was not advised to Sian's parents prior to 11 October 1995 and that on 24 January 1996 Sian and her parents first learned of the acceptance of her application for admission as a student at Bellingen Primary School. In the period March 1995 to the end of January 1996 Sian and her parents were neither informed by Mr Houston of what action had been taken nor of what was proposed nor of the Department's expectation that the school would be in a position to accept Sian as a student at the commencement of the 1996 school year. The mother of Sian was required to persist with enquiries to others, including Mr Phillips, in order to attempt to ascertain whether her child would be able to attend Bellingen Primary School at the commencement of the 1996 school year.
I am satisfied that this failure on the part of Mr Houston to advise Ms Murphy appropriately and to dispel her ignorance and her own persistent attempts to penetrate an apparently impenetrable bureaucratic barrier to the required information was extremely stressful for her, her husband and the child. Likewise the original exclusion of Sian and her parents from the proposed orientation day set for 23 November 1995, which Ms Murphy set about reversing, was for her, her husband and the child an unnecessary and an alienating experience especially since it occurred at a time when Mr Houston knew or ought to have known that the provision of the required structural changes and the provision of the additional resources were well in hand and proposed for completion for the start of the 1996 school year.
The continuing failure to accept the application for enrolment in the months immediately prior to 24 January 1996 caused to Sian and her parents a detriment, which was marked by stressful uncertainty and a pervasive ignorance concerning the proposed education of their child who had a serious disability.
Because of the manner in which the principal dealt with her application for enrolment, Sian and her parents were treated less favourably by Mr Houston than were those able bodied children and their parents who had applied to have their children admitted in 1996 as students in the kindergarten class at Bellingen Primary School. The circumstances in which Sian was treated less favourably than the others were the same. Both the child with a disability and those without a disability had applied for enrolment at Bellingen Primary School for 1996. Children of the same age, one of whom was Sian, who had a disability, sought to commence their formal education at Bellingen Primary School in 1996. Both children with disabilities and those without had to participate in the same enrolment process for admission. In that context, Sian and her parents were treated less favourably and this occurred "because of" or as a consequence of the fact that Sian had a disability.
It follows that, because of the failure to accept her application for admission as detailed above, Sian was discriminated against unlawfully by the first respondent at the first respondents' school at Bellingen.
It is unnecessary in my view to examine this part of the complaint either by reference to the provision of section 22(1)(b) or as a claim for indirect discrimination pursuant to section 6 of the Act.
6. THE ACCESS TO BENEFITS COMPLAINT - SECTION 22(2) - A HOSTILE ENVIRONMENT
There is a clear distinction between the emphasis in section 22(1) and that in section 22(2) of the Act. Whereas section 22(1) focuses on the issue of the enrolment of a child by the educational authority, section 22(2) emphasises the matters which impact on the education of the child once he or she has been enrolled. 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:Section 22(4), the unjustifiable hardship provision, which is set out above has no relevance to section 22(2). Section 3 of the Act which states its objectives provides that one of the objectives of the Act is to eliminate as far as possible discrimination against persons on the grounds of a disability in the area of, inter alia, education. Section 22(2) therefore is concerned to proscribe any discriminatory action or conduct in relation to a child with a disability which denies or limits the child's access to "any benefit provided by the educational authority" or which involves the expulsion of the child or which subjects the child to any other detriment.
(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."
The submissions on behalf of the complainant focus on the various parts of the complaint which collectively, it is said, denied or limited the access of this student with a disability to the educational benefits at Bellingen Primary School. It is well understood in the community that an educational authority has a wider responsibility than the mere provision of facilities for learning and the completion of a set curriculum with a desirable measure of achievement. The "benefits" provided by an educational authority include also the attainment of social competence, optimal personal development and the opportunity to develop abilities and attitudes and forms of behaviour which will positively and better equip the child to take his or her place in the wider society. The school's brief is not a narrow one and is designed to ensure broadly the student's access to a wider range of benefits than one might associate with mere learning. The object of section 22(2) is to ensure that the access of a student with a disability to these wide ranging benefits is neither denied nor limited. This necessarily requires of the educational authority or its representatives the creation of an acceptable environment within which the child can learn and develop. Particularly in the case of a child with a disability, this will require on the part of the school the development of a co-operative working relationship with the child's parents so as to create the desirable environment within which the child can better learn and grow. It follows that the creation of a hostile relationship between parent and school in relation to matters which directly impact on the education of the child is anathema because it must necessarily impact adversely on the student child's ability to fully and effectively access the benefits which the educational authority has to offer. Section 22(2) of the Act is designed to ensure that the educational authority and those who represent the educational authority in the school do not act in a discriminatory way which will deny or limit the access of a child with a disability to the relevant benefits. It will discriminate if on the ground of the child's disability it or its representatives create a climate of hostility within which the school's relationship with the parents, which is an essential element in the education of a child with a disability, is allowed to develop. If the development of such a hostile relationship is allowed by the school to develop because of the child's disability, the child with a disability will have been treated less favourably in his/her education than in the case of an child without a disability whose educational development occurs outside of such a hostile environment.
It has already been said, indeed it was accepted by Mr Phillips a senior Departmental official (Exhibit 28 Vol 1 Page 205B) that, arising out of matters relating to the enrolment of Sian at Bellingen Primary School, there was tension between the school principal and the child's parents, particularly Ms Murphy, even before the child attended the school. In my view it is the fact that none of that was the fault of either parent. They had with commendable foresight approached the school to arrange Sian's enrolment at a time and in a manner which would assist the school in processing the enrolment. The manner in which Mr Houston had handled the application in the period March 1995-January 1996 was solely the cause of the tense relationship which by January 1996 had already developed. It could easily have been so different. Mr Houston was obviously dealing with concerned parents who were anxious about the education of their child with a disability. By working co-operatively with the parents, by keeping them fully informed in relation to progress on critical matters - in short by working with them in a spirit of unity - the enrolment process could have been freed of the attitude of alienation to which the parents were made to feel subject.
If this incipient environment of hostility was to continue unchecked it was inevitable that the unlimited access of this child with a disability to the benefits which Bellingen Primary School had the capacity to offer was at risk.
Before examining in greater detail what occurred relevantly in 1996/97 it is necessary to refer to the conduct of the parents.
In the course of the inquiry there was an unmistakable stance taken by or on behalf of the representatives of the respondents - both within the school and outside of it that Ms Murphy in particular was a "trouble maker", that she was unreasonable, unduly aggressive and at times abusive, even that she was a poor parent who provided an inadequate lunch for her child. This persistent strain of criticism was intended to be contrasted with the image of a caring and understanding school principal and staff who had done all that could be done in the difficult task of educating a child with a disability, a task made even more difficult by the meddlesome and ever trouble-making Ms Murphy.
A serious objectively based attempt at assessment has failed to persuade me that that was the reality. There can be no doubt that there were isolated occasions when Ms Murphy behaved aggressively, and unnecessarily so, and that the other persons at the school who were witnesses hastened to record such instances vocally or in print. There is no doubt that on such occasions Mr Houston's was a ready ear.
On the other hand, having experienced the frustrations of the enrolment process over a long period and the uncooperative and apparently uncaring response of Mr Houston to her application to have her child educated at Bellingen, it was not unlikely that Ms Murphy might on occasions make her concerns known in a manner more aggressive than normal. My assessment of her, admittedly made only in the course of a lengthy hearing, was of one whose behaviour generally in any social context was totally acceptable but whose commitment to the well-being of her child was not negotiable nor was she afraid to challenge the "authority" of the school and its principal if she thought it right to do so. She was consistently described as unreasonable. My assessment is that when on reasonable grounds she saw the need to express her concerns she did so firmly and clearly. If on such occasions she acted beyond reasonable limits this was only because of her honestly held perception that her child and the child's parents were being treated unfairly and arbitrarily by the school and its principal.
It is beyond doubt that during 1996/97 Sian came to receive her initial education within a school environment which was blatantly hostile towards her parents, particularly her mother, and she was well aware of this. In my view this unacceptable environment for Sian was not of her making nor of her parents'. In the course of 1996/97 they were faced with a variety of provocations which generated added hostility. However, just as in the course of the enrolment, so too in the course of Sian's schooling at Bellingen the school principal had the capacity and indeed responsibility to give firm leadership so as to avoid the development of hostility and to create an acceptable working relationship between school and parents. The parents in March 1995 had sought such a relationship. The school principal was seemingly unable or unwilling to provide it for whatever reason. The parents had in January 1997 lodged their formal complaint of discrimination to the Department. This process was clearly resented by Mr Houston. It did nothing to relieve the position. At the same time it was legitimate for the parents to resort to the complaint process. There is no evidence that it ever reached finality. If it did, it had no impact on relieving the development of further hostility which culminated in Ms Murphy's removal from the school by police at the request of Mr Houston.
The case for the complainant is that as a consequence of the school's failure to deal appropriately with several relevant issues, this child was denied access or had limited access only to the benefit of a wholesome schooling environment and during 1996 and 1997 was required to undertake her education in an environment which was less than acceptable. It should be said that the policy of the Department is clearly manifest in its Integration Statement (part of Exhibit 9) which recognises not only equality of educational opportunity but also the benefits to the whole school community of having a child with a disability educated in its midst. The complaint points to a number of matters which, in their totality, assisted in creating a less than acceptable environment within which the schooling of Sian was made to occur and whereby she was denied or had limited access only to the whole range of benefits which an educational authority is capable of delivering. These were an inadequate case management process, the inadequate response by the school in assisting in the provision of suitable access to the school property, in arranging the provision of suitable furniture, in the provision of an inexperienced and unsuitably trained teacher's aide, in the development of an inappropriate attitude within the school demonstrable by reference to certain events, such as the poster incident and the school assembly incident, the placement of the industrial bin in the disabled car parking space and finally the locking of the gate at the direction of Mr Houston on 26 November 1997 which effectively denied or severely limited Sian's access to the school. These have to be addressed separately but it is the totality of them which, it is submitted, support a finding of a breach of section 22(2) of the Act. They can be briefly dealt with in turn.
6.2 Case management issues
Whilst Departmental procedures outlined in Exhibit 9 do not specifically refer to "case management" as such, it is envisaged that the education of a student with a disability will be regularly reviewed and that such a review will involve the parents. In early 1996 a process was put in place which came to be identified as "case management" in respect of Sian. It soon became contentious. Some confusion developed between what were Case Management Meetings properly so called and what were in fact Integration Funding Meetings. The purpose of the former was to regularly review the developing education profile for the young student Sian, who in 1996 was in the kindergarten class, to identify needs and to develop appropriate responses. The latter were more concerned with identifying the resources which might be necessary for meeting the special educational needs of Sian and any other child with a disability and ensuring that application was made for the appropriate funding. Obviously the two separate processes were related but in the context of this case they became hopelessly confused. Case Management Meetings were intended to focus on the education of the individual child. Integration Funding Meetings concerned the provision of resources for all in need of special consideration.
On 7 February 1996 Ms Murphy spoke to Mr Houston concerning her proposal for a Case Management Meeting as soon as possible so that she could talk to him and to Sian's teachers about the child, Sian's perceived needs and the best approach to providing the necessary support. Mr Houston responded that his preference was for a Case Management Meeting later rather than earlier. Given the nature and extent of Sian's disability, Ms Murphy's proposal seems sensible. No logical reason for Mr Houston's response was given.
In any event on 25 March 1996 Mr Houston convened a Case Management Meeting in his office. The Case Management Plan (Exhibit 28 Volume 1 pages 101-2) was developed. According to Ms Murphy, the only practical outcome from that meeting was the introduction of a communications book which was designed to provide a regular written form of communication between parents and teacher. From the evidence one gains the impression that it was a less than perfect solution to the question of adequate communication. In any event no other Case Management Meeting was held in the 1996 school year, even though the 25 March 1996 case management plan on its face envisaged later reviews in relation to a variety of matters seen to be relevant to the proper management of Sian's educational progress. There is a dispute between the parties as to the mood and tone of the meeting. I prefer to leave that matter of dispute aside because I am satisfied that the meeting was a serious attempt on the part of parents and school to ensure that Sian's education was properly managed and whatever its tone the Case Management Plan evidences what on its face seems to have been an appropriate outcome.
What is of more concern is what happened subsequently. Mr Houston said in his statement (Exhibit 68 paragraph 15) that on 15 May 1996 he advised the parents of a proposed further Case Management Meeting, that the meeting was held at short notice but that neither parent attended. It is clear from the text of Mr Houston's own letter (Exhibit 28 Volume 1 page 102A) that the meeting was not a Case Management Meeting but one, which was to deal with "State Integration Funding." Mr Field gave evidence that applications for State Integration Funding were made by the various schools and considered by the relevant committee twice yearly in 1996 and 1997. This changed to an annual process in 1998. This "review" was a part of that process. The meeting fixed for 25 May 1996 was not a Case Management Meeting but rather an Integration Funding Meeting. There is no evidence that Mr Houston took the Case Management process any further in 1996.
The deteriorating relationship between the parents and the school in 1996 is well evidenced by the industrial bin incident which, as has been said, occurred in or about September 1996. Whilst a Funding Review Meeting was held on 18 November 1996 at the school no further Case Management Meeting seems to have been held in 1996. The Case Management Meeting process was to be the initiative of the school and since Mr Houston was then the Case Management Co-ordinator, in his role as principal, it is curious that he took no steps to organise a further meeting. The plan developed at the 25 March 1996 meeting had set target dates for establishing outcomes from the meeting. However, no further meeting for the second half of 1996 was convened. The Funding Review Meeting in November 1996 was attended by Mr Field, who was the key Departmental person, whose responsibility it was to arrange and attend such meetings. Review funding was his portfolio and extended significantly beyond concerns at Bellingen Primary School.
The situation in relation to case management in 1997 was in my view very much affected by the fact that on 26 January 1997, shortly prior to the commencement of the new school year, Ms Murphy and Mr Grahl had made a formal complaint to the Department in respect of Mr Houston. This, I am satisfied, generated considerable hostility towards them, not only by Mr Houston but also by others. There was a settled procedure within which the resolution of any such complaint was to occur and the gloss created by this complaint and the resultant resolution process came to overlay the more orthodox arrangements which were relevant and more important to the schooling of Sian. For instance, Ms Osborn, who, at Mr Phillips' direction, had assumed responsibility for case management issues in the place of Mr Houston in February 1997, had in mind a Case Management Meeting for 18 March 1997, which she was to chair. She understood that it was to be attended by Mr Callan who had special responsibilities in respect of children with disabilities in the school system. The meeting did not eventuate but rather was replaced by a contentious dialogue as to what the purpose of the meeting was to be. Ms Murphy's understanding, based on discussions with Mr Phillips, was that the meeting was to be conducted as part of the resolution of the then recent complaint and that Mr Phillips had arranged for her to meet with Mr Callan who had experience in special education matters and with Mr Field, neither of whom had an immediate association with Bellingen Primary School. According to Ms Murphy, Mr Phillips had proposed the meeting and the meeting date and I am satisfied that her clear understanding was that it was not to be a Case Management Meeting. The result was that the school perceived the occasion to be one set for case management purposes. The parents' perception was quite different.
It is clear from Mr Phillips' letter to Mr Houston dated 25 March 1997 (Exhibit 28 Volume 1 Page 107A) that it was Mr Phillips who scheduled the meeting for 18 March 1997 and that "the overriding intention" of the meeting was "to attempt conciliation." Mr Phillips had arranged the attendance of Mr Callan and Mr Field. Mr Phillips' major concern was to attempt to relieve the situation which had been created because of the formal complaint by the parents against Mr Houston. On the other hand Ms Osborn, the acting principal, had present at the meeting other staff including Ms Denham, the class teacher, and Ms Daly, the teacher's aide. Ms Osborn was insistent that the meeting was for case management purposes. Ms Murphy's belief was that the meeting was to be held to facilitate a conciliation between the parents and Mr Houston. Ms Osborn's understanding of the purpose of the meeting was therefore clearly at odds with that of Mr Phillips' view that attempted conciliation was the "overriding intention" for the meeting. Not suprisingly, the situation on the day became chaotic. There is little doubt, however that Ms Murphy's insistence that this was not to be a Case Management Meeting but one as proposed by Mr Phillips again provoked a negative and adverse response by Ms Osborn and other staff even though it seems clear that Ms Murphy's understanding was perfectly correct. Ms Osborn's file note (Exhibit 28 Vol 1 Page 104) rightly complains of a difficulty with communication. So too did Ms Murphy who referred to "yet another breakdown in communication". However, Ms Osborn's note makes clear her sceptical belief that Ms Murphy's statements as to the purpose of the meeting were of doubtful quality. It was Ms Murphy's honest belief that she (and her husband who could not attend) were to meet with Mr Callan and Mr Field only for the purpose of discussing their concerns which lay as the base of the formal complaint against Mr Houston. Ms Osborn was insisting on pursuing the case management process with a much wider range of participants (including Mr Callan and Field). Ms Murphy's honest beliefs are consistent with the contents of Mr Phillips' letter of 25 March 1997. Ms Osborn frankly reveals her distrust of Ms Murphy in the following at the foot of the second page of Exhibit 28 page 105:
"Could I add here that it would be most beneficial that this written communication be available to Mr Houston and chairperson as I felt Ms Murphy faltered when I asked for her written advice and that with her only hearsay (which enabled her to manipulate the agenda to allow her to air her grievances - if indeed this was the case) I was unable to proceed with the planned meeting."One cannot seriously doubt Ms Murphy's acceptance of an efficient case management process for Sian or that she was ever an anxious and ready participant. Yet because she was insistent, and rightly so if one accepts Mr Phillips' view, that she be able to meet with Mr Callan and Mr Field on this day to pursue the suggested conciliation, she was criticised because she did not participate in a proposed Case Management Meeting which for her had not been scheduled and for which she had not prepared. It becomes increasingly obvious that much of the hostility which staff directed at Ms Murphy was not soundly based but part and parcel of a chorus of dissent. Her concern that she had to face "attitudinal behaviours" within the school has support.
It is significant that by March 1997 the relations between the parties concerning Sian were confused to say the least and matters concerning her management within the school had become marked by acrimony and an apparent lack of adequate communication. Confusion led to harsh words and ill feeling.
The first Case Management Meeting for 1997 was scheduled for 28 April 1997 and it was held on that day. This was during the period that the "poster incident" had occurred and this had had a serious impact on the relationships within the school. In fact, the poster incident came to be referred to in the course of the Case Management Meeting (see Exhibit 28 Volume 1 page 123), in the course of which Ms Osborn, the newly appointed Case Management Co-ordinator, and Mr Walsh, the school counsellor, had expressed their concerns that "staff privacy had been invaded." Not only were the "poster incident" and the question of "staff privacy" irrelevancies in the context, it was an ongoing thorn in the relationship as was the resolution of the parents' complaint concerning Mr Houston which remained unresolved. The situation surely called for a firm hand and strong leadership given the fact that the deteriorating relationship between principal, school staff and the parents, which had been in evidence almost from the beginning of 1996, at least, was now entering a new phase.
At the Case Management Meeting on 28 April 1997 it was agreed that wheelchair access for Sian was unsafe so long as the existing gradient remained as it was. Since the resolution of the difficulty involved works by the local authority outside of the school premises, it was arranged to meet with Shire Council officers at 2.00 pm on 12 May 1997 at the school. This meeting resulted in a decision that the approval for the works would be negotiated within the Council. Nothing seems to have been finalised and when Mr Walsh spoke to the Shire Engineer on 26 August 1997 the latter informed him that the matter had been referred to the Works Committee of the Council. Nothing else happened and the proposed works were never commenced prior to the end of the 1997 school year. The problem had been raised at the Case Management Meeting on 28 April 1997 and was prompted by the fact that Sian's deteriorating health required that she would need to use a wheelchair. This did not become available until September 1997 and, as will be seen, no acceptable access was available for the wheelchair and Sian at the end of November 1997 when the gate closure incident occurred.
Another issue which had emerged at the 28 April 1997 Case Management Meeting was the parents' concern that Sian and another child with a disability who in 1996 had been in the same class were separated into separate classes which meant that the effectiveness of the teacher aide services was reduced. This will be referred to again.
Mr Houston and Ms Osborn, by letter dated 28 August 1997, advised Ms Murphy and Mr Grahl of a Case Management Meeting for 3 September 1997 (Exhibit 28 Volume 1 page 115). Ms Murphy's reply (Exhibit 28 Volume 1 pages 116/117) referred to their unavailability on 3 September and asked that the Case Management Meeting be held later in 1997 because "we believe a later date would be more beneficial for Sian in that we wish to discuss her needs for 1998." Mr Houston's reply dated 2 September 1997 rescheduled the meeting for 15 September 1997. Ms Murphy had earlier noted that she was hoping for Mr Walsh's attendance at the Case Management Meeting but Mr Houston replied that he would not be attending. Ms Murphy's letter dated 10 September 1997 (Exhibit 28 Volume 1 page 120) again pointed out that as this was to be the last meeting for 1997 a later date was preferred. Again she noted her concern that Mr Walsh would not be attending. Ms Murphy's letter concludes:
"We find it regrettable that our previous letter's concerns have found no consideration in your letter of response and thus we must decline to accept a Case Management to be held on 15.9.97."It is important to put this issue in its proper context. On 19 August 1997 Ms Murphy and Mr Walsh had spoken on the telephone and Ms Murphy had again raised the question of progress within the Bellingen Shire Council in the provision of more suitable wheelchair access. It is probable that in this conversation reference was also made to the poor state of the relationship between the parents and the school. Again there is a dispute as to what was said and as to the tone of the conversation (see Mr Walsh's diary note Exhibit 38 Volume 1 page 318). What is clear is that on the next day 20 August 1997 Mr Houston reported to Mr Phillips concerning "an incident with Marita Murphy, teacher's aide special and John Walsh (school counsellor)" (Exhibit 28 Volume 2 page 319A). There is no clear evidence concerning this incident. It probably refers to the telephone conversation between Ms Murphy and Mr Walsh on the previous day. Mr Phillips made a file note of the conversation, which records Mr Houston's advice to staff concerning Ms Murphy. This note records Mr Houston's future intention to involve the police in matters relating to Ms Murphy. Also and perhaps more importantly, the note records Mr Houston's advice to Mr Phillips that he (Mr Phillips) should "tell her to piss off." The correspondence between Ms Murphy and Mr Houston concerning the proposed Case Management Meeting for September took place shortly after this. Mr Houston's advice to Mr Phillips on 20 August 1997 reflects not only his insensitive state of mind but more importantly the measure of his hostility to Ms Murphy.
Ms Murphy's letters (Exhibit 28 Volume 1 page 116/17 and pages 120/1) speak for themselves. Her request for a later meeting and her reasons for a later meeting are not illogical nor unreasonable but seem to have been left unanswered by Mr Houston. The Case Management Meeting took place as scheduled but in the absence of the parents.
No reason was advanced by Mr Houston for his response nor for his apparently precocious rejection of Ms Murphy's request for a later meeting. When one looks at the context of related events it is clear beyond question that Mr Houston was ill-disposed towards Ms Murphy and therefore unlikely to respond positively to any approach or suggestion from her no matter how reasonable it might seem to be. The deep-seated hostility, which Mr Houston apparently had towards the parent of this child with a disability at his school, is abundantly clear from Mr Phillips' file note made on 20 August 1997. Any prospect of a co-operative approach towards case management issues was by August/September 1997 virtually impossible.
Therefore, in the result, only three Case Management Meetings were held in the two years 1996-1997 in which Sian was a student at Bellingen Primary School. The proposal of Mr Phillips had been for two such meetings each year. But this issue hardly justified the intervention of Mr Phillips. The policy (Exhibit 9) makes it perfectly clear that the responsibility for consultation with the parents of the child with a disability rested with the principal. Case management was obviously the school's responsibility. It was a domestic issue. It was not one, which needed to attract the intervention of a person at Mr Phillips' level within the District. One Case Management Meeting had been held in March 1996, the second on 28 April 1997 and on the third on 15 September 1997 (which the parents had not attended). Case management was the responsibility of the principal. He had presided over the meeting in March 1996. Mr Phillips had replaced him as Case Management Co-ordinator with Ms Osborn in early 1997, no doubt because of past dealings between Ms Murphy and Mr Houston. The first meeting in March 1996 was reasonably successful. The second in April 1997 was partly successful but dealt inappropriately with irrelevancies. The final one in September 1997 took place in the absence of the parents for the reasons referred to.
Unfortunately the worth of the process came to be infected by the increasing ill-will which had developed within the school towards Ms Murphy.
6.3 Property issues
The provision of suitable access to the school premises for Sian became a contentious matter. I will later deal at length with the closure of the gate, which was ordered by Mr Houston in late November 1997. This closure effectively denied Sian and her parents proper access to the school. The school is built on an elevated site and as will be seen it was a difficult property to access by a person with a disability. This fact was noted at the April 1997 Case Management Meeting (Exhibit 28 Volume 1 page 123).
As was pointed out earlier this problem had led to an earlier on-site meeting with Council officers on 12 May 1997 but the issue was never resolved. In August 1997 there was contentious dialogue between Mr Walsh and Ms Murphy about it. Sian's wheelchair became available in September 1997. Since the beginning of the 1996 school year her Spinal Muscular Atrophy had continued to progress and by September 1997 she needed a wheelchair to maintain posture and to be more effectively mobile.
Sometimes Sian was driven to school by her mother but later in 1997 after the wheelchair became available she and her mother walked to the school. The most convenient access for Sian and her mother was via the gate shown as Gate 4 on Exhibit 7. The reasons for this will be detailed below. Sian and her mother used this access to the knowledge of Sian's teachers. I cannot accept the evidence of Mr Houston that he had no knowledge of their use of this gate to access the school grounds. It had been used by them constantly. Heavy rain had eroded a part of the entrance and on 24 November 1997, immediately following heavy rain, the entrance became difficult to negotiate. I am satisfied that modest earth works could have resolved the difficulty. On that day Ms Murphy spoke to school personnel and requested some action. The response was the holding of a Workplace Health and Safety "meeting" which resolved upon the closure of the gate. This led to an angry response from Ms Murphy, which in turn led to Mr Houston having her removed by police from the school. This is examined more closely below.
It is convenient under this heading to deal also with the provision of suitable furniture for Sian's use in the classroom. It will be recalled that at the very first Case Management Meeting on 25 March 1996 shortly after the enrolment of Sian the question of the provision of appropriate furniture was raised. Under the heading "physical needs" the action required by the meeting was "examine alternative furniture to assist with Sian's posture." The personnel elected to action the matter are identified as "John and Wayne", that is Mr Walsh and Mr Houston respectively.
The evidence concerning the provision of appropriate furniture is marked by sheer inertia and inaction. Clearly the issue of having proper furniture arose very early in the course of Sian's schooling. It was pursued informally from time to time by Ms Murphy who asked various school personnel "what has happened about Sian's desk?" The usual response was "that's in progress." In fact nothing seems to have been done and the issue was not seriously considered again until on 11 June 1997 when Ms Megan Robinson, an occupational therapist from the Muscles Diseases Clinic at Sydney Children's Hospital, visited Bellingen Primary School. Her report concerning Sian (Exhibit 28 Volume 1 pages 60-62) is dated 22 June 1997. She was accompanied on this visit by Ms Helen Nixon, the occupational therapist at Bellingen, and Ms Gina Pressa, a Bellingen physiotherapist. Sian was using a Namco-style school chair and a desk, which was too low for her purposes (Exhibit 38 page 5). It is clear that Ms Robinson on her 11 June 1997 visit regarded the furniture as unsuitable. Sian was using the table and chair of the same kind as that provided for her able bodied classmates. Ms Robinson recommended an adjustable height table and a sloping top with a cut out. Ms Nixon, the Bellingen occupational therapist, was not contacted until 31 August 1997. By 28 October 1997, the date of the report of Ms Michelle Broadly, an occupational therapist, Sian was still using the same furniture (Exhibit 38 page 5). On 10 September 1997 (Exhibit 38 page 21) there was a "consideration of Ms Robinson's report (22 July 1997)" by Mr Walsh and Ms Nixon. A further review report dated 20 October 1997 (Exhibit 38 page 12) was written by Mr Walsh. But still no positive action had been taken towards providing the proper furniture. In short, the matter having been raised at the 25 March 1996 Case Management Meeting and according to the minutes (Exhibit 28 Volume 1 page 102) required to be actioned by the target date "term 2", school personnel were still talking about the issue on 28 October 1997 - more than 12 years later. The evidence indicates that the cost of providing the modified furniture was relatively modest. The only explanation which Mr Houston and Mr Walsh thought to give was that they were awaiting advice from the relevant professionals. This explanation is unconvincing for a variety of reasons. Firstly, it was the responsibility of the school properly to equip the classroom with the appropriate furniture. Secondly, at the first Case Management Meeting held in 1996 the need for proper furniture was recognised and a target date was set for obtaining it but no action seems to have been taken to follow it up. Perhaps the fact that there was no further Case Management Meeting in 1996 meant that the matter was lost sight of for whatever reason. Thirdly, it was only when Ms Robinson visited the school in June 1997 that the matter was resurrected. From that time on, the delay in actioning the matter was thought to be explained by reference to the proposal that Sian would soon need to be accommodated in a wheelchair and that there may need to be an adjustment to the furniture.
None of these matters, however, provide an acceptable response to what was an obvious need from the very beginning. Rather the matter was delayed and was allowed to become contentious and the longer the delay and inaction, the more contentious the issue became. It was simply another cause for unnecessary upheaval; on the one hand there was a concerned parent persistently advocating for an acceptable response by the school to the special needs of her child, on the other there was a seemingly impenetrable barrier of inaction. It is little wonder that by mid to late 1997 it was probably impossible for the key players to communicate and deal with issues on any reasonable basis.
6.4 Sian and the class room teacher's aide
It was said earlier that the appointment of Ms Daly as the teacher's aide for Sian and the other child with a disability in the class was confirmed in late 1995 before the enrolment of Sian was accepted. Ms Daly, who had no specific expertise and who had worked at the school as an administrative assistant in the office, was prior to the end of the 1995 school year offered the position in 1996 of teacher's aide in the kindergarten by Mr Houston. She accepted and during the 1996 and 1997 school years she was the appointed teacher's aide (special). In 1996 both Sian and the other child with a disability were in the same class; in 1997 they were separated. The evidence concerning Ms Daly's appointment to this position focused on two issues - her relative inexperience and lack of qualification for the position and secondly, her alleged inability to provide an adequate service to Sian both generally and because of the decision to have Sian and the other child in separate classes. It should be said immediately that Ms Daly impressed me as a caring young woman who was intent on doing her imperfect best to accommodate Sian's considerable needs. She was obviously fond of the child and concerned only to do her best within her capabilities and the resources made available to her. The evidence canvassed certain allegations as to how she performed her duties as teacher's aide.
Objection was taken by counsel for the respondent that this part of the complaint, based as it was on the manner in which Ms Daly carried out her duties, should not be heard because such allegations were irrelevant and could not form the basis of any finding of discrimination. It seems to me that it is not appropriate for the Commission to adjudicate on the precise manner in which Ms Daly carried out her duties in relation to Sian. The only relevance of Ms Daly's involvement in the context of the complaints must relate to her relative inexperience. It is really conceded that Ms Daly was somewhat inexperienced when she was appointed to the position. She had for some years worked intermittently as a teachers aide and when she was asked to accept the position in December 1995 she had been working in the office at the school. She was poorly prepared for the difficult work she would have to do. Ms Murphy gave her some information initially and advised as to how the child should be lifted in the class room and elsewhere and toileted. There were occasions when Sian fell and others when Ms Murphy was critical of the way in which Ms Daly carried out particular tasks with Sian. There is also evidence from Ms Ridley that she had seen Ms Daly carrying out tasks relating to upper back and head support for Sian which were executed in a less than appropriate manner.
The use of correct lifting techniques for Sian was an ongoing issue and this seems to have been dealt with ad hoc and not in any professional manner from the outset. For instance, as late as the Case Management Meeting on 15 September 1997, the minutes record the need to raise staff awareness of the correct lifting procedures for Sian as demonstrated by Ms Robinson on the occasion of her visit on 11 June 1997 - eighteen months after Sian had commenced school. Photographs were taken to assist relief teachers. The outcomes of that meeting also refer to the need for Ms Daly to visit the special unit at Coffs Harbour or Urunga to view procedures for children with disabilities in sport and in particular for Ms Daly to obtain the necessary qualifications for supervising the swimming program proposed for 1998. Any expressed concerns about the manner in which Ms Daly attended to Sian's needs cannot validly criticise Ms Daly. She was a caring person who did the best she could given her relative inexperience and the fact that she was poorly equipped in terms of the necessary skills to do all that was necessary. Rather the criticism should be directed at a system which employed an unskilled person for a specific job who had little training. Not only must that cause problems for the child with a disability, it must reasonably heighten the concerns of any caring parent.
The other aspect of this issue focused on the decision of Mr Houston at the commencement of the 1997 school year to place the other child with a disability for whom Ms Daly was also responsible in a different class and class room. This meant that Ms Daly had to divide her attention between the two students in separate classes. This could only result in a reduced level of care for each and I am satisfied that it did.
The quality of teacher's aide care was a constant source of irritation for the parents who not unreasonably complained. These complaints were taken as further evidence of Ms Murphy's unreasonable and trouble-making propensities by the principal and staff. Even her genuine, reasonable and honest concern about the quality of care for her child came to be regarded, particularly by Mr Houston, as unfounded criticism and he, instead of responding appropriately, was more insistent on "protecting" and "supporting" his staff in the aggressive tone of his several letters to Mr Phillips (page 344 of Exhibit 28 Volume 2 is one example). His statement there that "I will not accept any of the other criticisms levelled against my staff, my school or myself" is indicative of his total disregard for the parental concerns. This aggravated the hostility which was developing within the school towards the parents, particularly Ms Murphy.
6.5 The poster/school assembly incidents
Reference has been made earlier to the poster which was displayed in the staff room. It was placed in the room by a member of the staff. There is no evidence that any staff member took objection to it. On the contrary, the evidence suggested a degree of approbation by those staff who used the room. Mr Houston, like the other staff, sought to defend it. Mr Grahl, in his role as a member of the Parents and Citizens Committee, was the first outsider to see it. He took immediate objection to it and removed it. He was later alleged to have stolen it. He returned the poster with an apology. It could be submitted that Mr Grahl was being unduly sensitive. On the other hand, in the relevant period March/April 1997, one cannot but be certain that the principal, Mr Houston, and several staff had developed a strong antipathy toward Sian's parents, in particular Ms Murphy. The issue of "special needs" for children with disabilities within the school community had been elevated to a new level. The parents of the child had insisted from the beginning that the "special needs" of their child be recognised. As a result of that, the relationship between the parents of Sian and the school, in particular the principal, had degenerated to the point where Mr Houston had indicated, in February 1997, his refusal to communicate with Ms Murphy except in writing. His forceful response to her formal complaint to Mr Phillips was then of very recent origin. One can safely assume that this and related matters were very much in the mind of staff. The first Case Management Meeting proposed for 1997 on 18 March 1997 had ended in controversy. Ms Osborn had clearly an adverse view of Ms Murphy as the result of the controversy that surrounded that meeting and its purpose. The issue of separating Sian and the other student and the impact that this had had on Ms Daly's role as teacher's aide was also a live issue of recent origin. Ms Murphy in particular had become "a talking point." It can safely be said that she was viewed as troublesome, outspoken and persistent. Her insistence that Sian's "special needs" be properly addressed with the school was then well known.
The poster in its terms is subtle and clever, but its hidden meaning is clear and unequivocal. It manifests an intensely insensitive view. It was wholly unnecessary. Its message is unmistakable. Persons with disabilities, those with special needs, are not entitled to special treatment. All in the school are "special."
The fact that persons with disabilities, by virtue of their disabilities, have special needs raises special issues for a school - the main one is that children with special needs are entitled as a matter of law to equal opportunity in education. If that requires the provision of special treatment and facilities by the school that is not a matter of grace and favour; it is a matter of legal obligation. To subtly scorn or to deride and to diminish the special position of persons with disabilities is to reflect a mindset which is less than appreciative of what an educational authority is required to do.
The poster, taken in the context of the wider factual scenario in which Sian and her parents were now immersed at Bellingen Primary School, emphasises the sheer negativity and want of appreciation by staff of what human rights legislation was seeking to protect in the matter of education.
The attempts, by and on behalf of staff, to rationalise the poster incident were not persuasive. The fact that some staff regarded it as a joke has been referred to. The attempt by Ms Beth Howard, the acting principal, to diminish the impact of the poster is apparent from her "notes about an encounter with Ms Murphy 10.6.97" made on 11 June 1997 (Exhibit 28 Volume 1 pages 320-321). She recorded a discussion with Ms Murphy in the course of which reference was made to the poster incident. Inter alia she noted:
"I said she and Bo had taken the poster out of context and that the term was not meant to refer to the "special needs" in an educational sense."This attempt at rationalisation was really fatuous. The terms "special needs" in an educational setting has a well understood connotation. It is a reference to children with "special needs", usually because of a physical or intellectual disability, who because of their disability are allocated for some special attention. Clearly the teacher in the photograph did not qualify for that tag but the well-known phrase was taken from its usual context and applied to her and the opportunity then taken to emphasise that "all in this school are special". Ms Howard's poor attempt at equivocation also ignores the environment which had developed within the school in relation to a child with a disability who had "special needs", namely Sian Grahl, and the ongoing controversy concerning her education which focused on her "special needs" which, by June 1997, had been a live issue at Bellingen school for the past 18 months. It had, in January 1997, led to the child's parents lodging a formal complaint about the principal to the Department. One needs little imagination to identify the impact which that fact had on the staff at the school.
The school assembly incident was equally distasteful.
Ms Jennifer Ridley, the mother of another child with a disability in the same class as Sian, gave evidence that it was the practice to present awards to students at the school assembly. When a child's name was called, that child stood and went to the teacher who was handing out the awards. After the presentation the child remained standing at the front of the assembly until all awards were presented. All of the children were then recognised by acclamation.
On one such occasion, according to Ms Ridley, Sian was called for an award. The teacher in question was Ms Denham, who taught Sian's class. Sian was sitting near the front of the assembly. Ms Daly was present. When Sian's name was called, according to Ms Ridley, no effort was made to bring Sian to the front. Ms Denham said "it is a bit difficult to get you out but congratulations." Thereupon, according to Ms Ridley, the teacher "threw the award toward Sian." Ms Denham denied that this occurred. There is no reason to disbelieve Ms Ridley on this point. She was not cross-examined on it. On the other hand, she presented well and gave her brief evidence in a positive way.
It is beyond doubt that by 1997 Ms Murphy was generally regarded by the staff component of the school community in a very negative fashion. That attitude had apparently spilled over and into the school life of Sian.
6.6 The bin incident
Some brief reference has already been made earlier to the placement of the industrial bin in the disabled car parking space which in September 1996 Ms Murphy had regularly used to facilitate her unloading Sian and the mobile equipment which she then used from her car. The placement of the bin restricted her use of the car parking space and on the morning in question she encountered a situation which she described as dangerous because of another larger vehicle which came into the immediate vicinity. The large bin prevented her utilising the car parking space to its fullest extent. She approached Mr Houston about her difficulty. His reply - "that garbage bin will stay where it is until I decide to shift it" - angered Ms Murphy and she brought the issue to Mr Phillips' attention. Why Mr Houston selected the disabled car parking space for the placement of the industrial bin is curious. The ensuing correspondence between Mr Phillips and Mr Houston was, for Mr Houston, an irritation. He sought to defend his decision to utilise the car parking space for the place for the industrial type rubbish bin and described the correspondence he was undertaking about it as "a waste of time for both of us." His parting shot to Mr Phillips "it gets up my nose!!!", reveals not merely his impatience at Ms Murphy's defence of the disabled car parking space but more importantly the negative and uncaring mindset which Mr Houston had quickly developed at least towards the child's mother. The evidentiary value of this incident in September 1996 best lies in demonstrating again the lack of school support which the child and her mother had endured until that time and which was markedly to deteriorate during the continuance of Sian's schooling in 1996 and 1997. By September 1996 the degree of hostility towards Ms Murphy was well marked. It was to get even worse.
6.7 The gate closure
Finally, the closure on 26 November 1997 of the school gate which had been habitually used by Sian and her mother to access the school property from the time Sian had obtained her wheelchair, was perhaps the most regrettable incident of them all. I will under a separate heading recount in detail all of the relevant facts because it is the subject of a specific complaint, but it is submitted that it also is part of the wider matrix of fact which evidences an unsympathetic, uncaring and negative, hostile environment or mindset which the school by its principal and some staff had created and demonstrated and as a result of which Sian was limited in her access to the wholesome benefits of a proper education and of a supportive educational environment which the educational authority was intent on providing.
6.8 Section 22(2)(a) - conclusion
The complaint which alleges a breach of section 22(2)(a) of the Act was put by counsel for the complainant on the basis that an unacceptably hostile environment within which the child with a disability was to be educated at Bellingen Public School had been created by the school principal and some staff and this was the result of and at the same time evidenced by the manner in which the relevant school personnel had dealt with a variety of matters concerning or relating to Sian's education all of which arose because of the child's disability. Further the "less favourable" treatment given to the child and her parents during the enrolment period by the school principal was continued beyond her enrolment in late January 1996 and was manifest in a variety of other matters during 1996 and 1997 and which generated an environment of hostility. This environment, and the matters which gave rise to it, meant that the child's access to the educational benefits otherwise available at the school was limited. The inefficient and problem-riddled case management process, the failure to provide suitable classroom furniture, the employment of inadequately trained persons and the failure to provide sufficient teacher's aide time, the poster and school assembly incident, and the gate closure were all matters which collectively limited Sian's access to the educational benefits available to them at the school. The increasing hostility which was reflected in or which was generated by these matters individually and collectively and within which Sian had to be educated - an hostility of which she was aware - necessarily limited the access which she would otherwise have enjoyed to the available benefits at the school.
The phrase "any benefit provided by the educational authority" in section 22(2)(a) is broadly stated. There is no attempt at definition. The use of the term "benefit" is wider than, say, "facility". Again, "access to any benefit" is not limited to "physical" access as is probably the case in respect of section 23. Again, a "denial" of access to any benefit provided by the educational authority is something different to "enrolment" which is dealt with in section 22(1). Section 22 purports to operate in respect of the treatment of the student with a disability whilst as an enrolled student that student seeks to access or to take advantage of or to enjoy the benefit of a whole range of benefits which an educational authority has the capacity to deliver. Included among those benefits is the capacity to learn and to be educated and socially developed in a supportive school environment - not one which is marked by contention, animosity and hostility. If the creation of that school environment is the consequential result of the disability and is discriminatory then the child with a disability has either been denied or has been granted limited access only to the benefits provided by the school. She has suffered a very substantial detriment.
The benefits provided by the educational authority were intended to be available both to the child with a disability and to the able bodied child. In that there was to be equality of opportunity. If in the relevant respect the child with a disability was treated less favourably and thereby suffered a detriment and this was a consequence of the particular child's disability then the less favourable treatment was discriminatory. The circumstances attendant upon the education of the child with a disability and the able bodied child were precisely the same. Those circumstances were the educational environment and the provision of educational benefits to each child in a particular local school. The comparison is between the treatment of the child with a disability and that of the child "without the disability."
The less favourable treatment of Sian and her parents in Sian's accessing the benefits provided by the school has been identified. Without doubt that was because of or on the ground of Sian's disability. It follows in my view that the discriminatory treatment whereby Sian's access to benefits was limited was unlawful.
7. THE GATE CLOSURE COMPLAINT - SECTION 23(1)
Section 23(1)(a) and (c) of the Act provide:
It is unlawful for a person to discriminate against another person on the ground of the other person's disability or a disability of any of that other person's associates:The reference to "such premises" in sub-paragraph (c) is a reference to "any premises that the public or a section of the public is entitled or allowed to enter or use" in sub paragraph (a).
(a) by refusing to allow the other person access to, or the use of, any premises that the public or a section of the public is entitled or allowed to enter or use (whether for payment or not); or
(c) in relation to the provision of means of access to such premises; ...
I am satisfied that the premises and its environs known as Bellingen Primary School, a public school which provides educational facilities to the Bellingen community, is comprehended by the terms of section 23.
Bellingen Primary School is situated at the corner of William Street and Lovell Street, Bellingen. The frontage of the property is regarded as being that part of the property, which is on the William Street alignment (Exhibit 7 and Exhibit 28 Volume 1 page 30). The main vehicular entrance is on William Street. Ms Murphy used this entrance to the school on those occasions when she drove Sian to school. She would enter the school grounds through the William Street gate and via a driveway from the entrance she could then access the car parking area of about sixteen spaces one of which was significantly wider and identified for disabled car parking. This was the only entrance from William Street. William Street carried a significant body of traffic. On the Lovell Street frontage of the property there were three entrances. The two entrances, marked Gate 2 and Gate 3 on Exhibit 7, on Lovell Street were those mainly used by student pedestrians. There would have been some students who would more conveniently have used the William Street entrance. However, the significant number of school buses which attended the school each day in the morning and afternoon discharged their student passengers in Lovell Street in the vicinity of the two entrances at Gate 2 and Gate 3. Similarly, most private vehicles used to take children to school or after school used to pick up students used Lovell Street. I am satisfied by the evidence of various witnesses that at the "drop off" and "pick up" times when children would be arriving at or leaving school, Lovell Street was extremely busy and generated significant bus and private vehicular traffic. Buses and cars habitually at these busy times were parked along both sides of Lovell Street, which carried at those times considerable traffic, both vehicular and pedestrian.
It was a practical impossibility for Ms Murphy to have used either of the Lovell Street entrances as a matter of convenience. The "footpath" on the school frontage along Lovell Street had not been made trafficable for pedestrians. It was rough and on an incline such that access to the "footpath" and the entrance to the school grounds via the entrances provided involved negotiating the steep gutter from the carriage way of Lovell Street. As will appear, Sian and her parents lived about 700 metres from the school and their usual and most convenient route was via Bowral Street which formed a junction with Lovell Street almost opposite the southern-most gate on Lovell Street which is identified on Exhibit 7 as Gate 4. This was a vehicular entrance to the school grounds and on the entrance was a large swinging gate. This entrance was not normally used by student pedestrians who, if entering from Lovell Street, used either Gate 2 or Gate 3. Gate 4 was the gate which Ms Murphy and Sian regularly used especially after Sian obtained her electric wheelchair. It was this gate which Mr Houston locked on or about 26 November 1997.
There were occasions before Sian obtained her electric wheelchair and when Ms Murphy did not have the convenience of the family car to drive Sian to school that she used one or other of the regularly used Lovell Street entrances. Because of the condition of the footpath she had to use the steps. At this time Sian used a buggy type pram. However, as Sian got older and heavier, this became increasingly more difficult. Ms Murphy therefore had to resort to using habitually the entrance to the school at Gate 4 near the junction of Lovell Street and Bowral Street. Ms Murphy estimated that she used this entrance predominantly and after Sian got her electric chair she used it exclusively. On those occasions when she and Sian "walked" to school it was obviously impracticable to attempt to mount the incline from Lovell Street with the electric wheelchair, which was a much heavier vehicle. Furthermore, the condition of the footpath and the amount of bus and vehicular traffic on Lovell Street meant that Sian and her mother would have had to negotiate a very busy thoroughfare if they were to use any entrance other than the entrance at Gate 4. Either she could have travelled along Lovell Street into William Street to the main entrance or driveway or else attempted access via one or other of the entrances on Lovell Street. For obvious reasons - distance, convenience, the dangers associated with the busy traffic on Lovell Street and the lack of adequate pedestrian access - Ms Murphy used the entrance which for her was the closest and the most convenient. That was the entrance at Gate 4. It meant that in traversing the 700 metres distance from their home Ms Murphy and Sian would travel along Bowral Street to Lovell Street, cross that street and enter the school grounds via Gate 4 which was immediately opposite the entrance of Bowral Street. The wheelchair was manufactured with independent suspension for each wheel and could negotiate ground which to some extent was uneven. Therefore it was convenient for Sian and her mother to travel onto the grass/gravel surface, which led towards the entrance on which was hung the large swinging gate.
I am satisfied that many members of the school community - students, parents of students and staff - daily saw Ms Murphy and her daughter in the wheelchair entering the school property via this gate. It was almost a daily phenomenon - certainly from September 1997 and on numerous other prior occasions. Ms Murchie (formerly Ms Warne) who was Sian's teacher in 1996 often saw Sian and her mother coming to school and using this entrance. So too did other teachers like Ms Daly and Ms Osborn. They knew that Sian and her mother regularly used this entrance. Mr Houston denied any knowledge of Ms Murphy having used this gate. Certainly the locking of the gate quickly became a well-known fact within the school and in particular among the staff. Ms Daly, for instance, was told of its closure by other staff.
I am satisfied that over a significant period and in particular from September 1997 Ms Murphy and Sian habitually used the entrance in question, which was the most convenient means whereby Sian and her mother could access the school property. The entrance in question was designed as an entrance for any heavy vehicular traffic which had to access the school grounds for any reason. Nonetheless, the surface was sufficiently acceptable for use by pedestrians and in particular by Sian's wheelchair over a long period. The photographs in evidence make this readily apparent. The fact is that Ms Murphy and Sian used it regularly and it was for them a safe access and particularly it accommodated and facilitated Sian's access to the school premises whilst using her wheelchair. Using Gate 4 avoided the necessity for Sian and her mother to go to the gate in William Street via Lovell Street nor was it necessary for them to attempt entry via either Gate 2 or Gate 3 on Lovell Street.
Investigations by the Commission disclosed that on the weekend of 22 and 23 November 1997 the Bellingen area had heavy rainfall. By Monday 24 November 1997 the surface of the entrance at Gate 4 had become somewhat eroded as a result of the heavy weekend rain. Sian and her mother encountered some difficulty with the wheelchair but they were able to enter via their usual route. After Ms Murphy had taken Sian to her classroom she sought out Mr Britcher who was the school groundsman. She could not find him and asked the canteen manager to advise him that she, Ms Murphy, would like to see him. She intended to ask him if he could level the surface at the gate entrance so that Sian's wheelchair could negotiate the surface without difficulty.
On the morning of Wednesday, 26 November 1997 when Ms Murphy and Sian arrived at the gate, their usual entrance, they found that the gate had been padlocked and they could not enter. Ms Murphy left Sian at the gate and went to Mr Houston's office. She complained to him about the situation and indicated that she would have difficulty in getting Sian to school. Mr Houston's replied that the "school's safety committee" had met and had resolved that the entrance was "unsafe" and that the committee had further resolved to lock the gate.
Ms Murphy then returned to where Sian was and en route she saw Ms Daly attempting to manipulate Sian's wheelchair over the gutter to the entrance at Gate 2 or Gate 3. She was having obvious difficulty and Sian was crying. Words were exchanged between Ms Daly and Ms Murphy. Ms Daly left and Ms Murphy then had to guide Sian and her wheelchair through the morning traffic to the William Street entrance and thence to her classroom. There is no doubt that upon encountering the padlocked gate Ms Murphy was angry.
On the morning of 1 December 1997 when Ms Murphy spoke to Mr Houston again about the locked entrance there was another angry exchange concerning which there are now competing versions. I am in no doubt that Ms Murphy was irritated at what had occurred and this reflected her mood on that morning. At the same time Mr Houston remained strongly and aggressively defensive of his decision to lock the gate. By this time there was a total breakdown in the relationship between the parents of this student with a disability and the school principal. The confrontation between them on this day was entirely predictable given the history of the relationship and the impact on that relationship of Mr Houston's decision to deny to Ms Murphy and Sian access to the school premises via their usual entrance. This confrontation led to Mr Houston summonsing local police who escorted Ms Murphy from the school grounds.
I return to the so-called meeting of the "school's safety committee." There was at the school an Occupational Health And Safety Committee. Exhibit 41 contains what purports to be the minutes of the meetings of this committee. Because of my concerns about the "minutes" of the meeting which it was said recorded the resolution of the committee on 24 November 1997 to lock the gate - a matter to which I will shortly turn - I requested that the Commission be provided with all copies of the minutes of any such meetings which were in the school's possession. A review of the exhibit (Exhibit 41) discloses that the most recent meeting of the committee for which minutes were kept was held on 9 June 1995 - approximately 22 years previous to the "meeting" in question. When this was queried various explanations were offered none of which were persuasive. I am satisfied that as required by the Department there had to be at the school such a committee. How often it met and what its processes were remain obscure. I am satisfied that this committee was not a prominent feature of school life at Bellingen Primary School and that there was never a regular meeting process in respect of which proper minutes were ever prepared and their correctness resolved upon at a later meeting. The meeting arrangements were ad hoc and not subject to any formal or semi-formal process or discipline of the kind one normally associates with meeting procedures. This informality and the lack of any documentary evidence to support the holding of any such meetings regularly was a marked feature of the so-called "school safety committee" for a long period prior to November 1997. It is more probable than not that no such meetings had been held for a period of years prior to November 1997 or if there had been such meetings they were informal ones of which no record was ever kept.
I turn then to the document, which purports to be the "Minutes of the Occupational Health and Safety Committee held on Monday, 17 November 1997 (sic)" (Exhibit 28 Volume 1 page 136). This document speaks for itself. The self-serving nature of it is readily apparent. The air of formality which the document presents is, I am satisfied, a falsity. The "motion" to close and lock the gate is, I am satisfied, mythical. The "J Warne" signature is that of the witness Ms Murchie. In her evidence she had to concede that the document presents an unreal picture of what in fact occurred. I am satisfied that the decision to close and lock the gate was effectively that of Mr Houston. Ms Murchie and the school groundsman, Mr Britcher, were compliant subordinates.
The final sentence "there being no further business the meeting concluded at 2.00 pm" is simply fatuous. Of much greater concern, however, is the fact of which I am satisfied, that the document itself is a recent invention. When it was created is not certain. I am satisfied, however, it was later brought into existence by Ms Murchie at Mr Houston's insistence and for the express purpose of attempting to present the decision to close the gate and lock it as a formally considered decision of a responsible school committee made in the best interests of school health and safety. In fact the decision was the whimsical and, in my view, spiteful decision of the principal made against a background of animosity and ill will and hostility and was attended with no degree of formality at all. The document is a lie and the motivation for its creation is duplicitous. Ms Murchie in attempting to defend the decision to lock the gate went so far as to assert that even before the heavy rain at the weekend of 22 and 23 November 1997 the entrance was "dangerous" for pedestrian use. She valiantly, but unsuccessfully, attempted to explain why, if this was so, the committee of which she was nominally the chair did not resolve to close the gate earlier since she had knowledge over a significant period that Ms Murphy and Sian were habitual users of this entrance. Furthermore, if the Occupational Health and Safety Committee was an active agency within the school of which she was a member and the chair, why had she not earlier raised her concerns? Mr Britcher was an equally unimpressive witness. His was the responsibility to attend to the upkeep of the school grounds. It is inconceivable that he was totally unaware over of a long period of daily use of the entrance by this child with a severe disability and her mother. Even if he did not know this he was well aware of the fact that the entrance was protected by a large swinging gate and was the usual vehicular entrance for any truck or large vehicle which may have been required to enter the grounds. All that Ms Murphy had requested was that the surface at the gate be levelled to accommodate a wheelchair and to repair the unevenness in the surface caused by the run off. She had on the morning of 24 November 1997 with Sian in the wheelchair negotiated the eroded surface successfully but with some difficulty. In her view little work was required to make the surface easier to negotiate. Mr Britcher likewise sought to maintain the position that the entrance was "dangerous" for pedestrian traffic. The clear impression was that in the circumstances he felt constrained, as did Ms Murchie, to maintain a position consistent with the document, which purported to be the minutes of the meeting which he is said to have attended. In short, he too sought to defend the integrity of a document which I am satisfied is false. The investigator of the document was Mr Houston.
In the course of the hearing a serious issue arose about the very integrity of this document (Exhibit 28 Volume 1 page 136). It came about in this way. Ms Murphy's evidence was that she had made contemporaneous notes in her diary for, inter alia, 24 and 26 November 1997. Her entry for 24 November 1997 records her having difficulty with the wheelchair on that morning and the making of the request to have the surface repaired. Her entry for 26 November 1997 records her finding the gate locked. Her removal from the school as a result of the later contretemps between herself and Mr Houston occurred on 1 December 1997 but it had its immediate origin in the locked gate. In the course of this evidence it became apparent that her notes were totally inconsistent with what purported to be the "minutes" of the meeting, which on the face of the document was said to have been "held on Monday, 17 November 1997." If the "complaint" referred to in the first paragraph of the minutes was that of Ms Murphy, and it is conceded that it is, and the closure was a consequence of the "motion" passed at a meeting on 17 November 1997, then either Ms Murphy's diary entries for 24 and 26 November 1997 are wrong or the minutes are wrong and the meeting of the Occupational Health and Safety Committee was not held on Monday, 17 November 1997 (see transcript at pages 161-164, 180-184, 222).
It was in an attempt to resolve this conflict that the Commission initiated enquiries with the NSW Office of the Bureau of Meteorology and these revealed that the only major rainfall at Bellingen in November 1997 occurred on Saturday, 22 November 1997 when 135.5 millimetres of rain were recorded at the Bellingen Post Office. That fact was consistent with Ms Murphy's experience that rain during the weekend prior to Monday, 24 November 1997 had caused the erosion of part of the surface at the entrance to Gate 4. It then became clear from the evidence that it was sometime after the gate closure incident that Mr Houston required of Ms Murchie that she prepare "the minutes". The resultant document is really the product of Ms Murchie's imagination. The only factual part of it was the decision to lock the gate and I am satisfied that that decision was the decision of Mr Houston, which Ms Murchie and Mr Britcher readily endorsed. Just when the minute was prepared cannot now be determined. Whenever it was prepared, Ms Murchie inserted the wrong date in the heading, which was coincidentally the date of the Monday in the week prior to the date when Ms Murphy asked that some remedial work be done at the entrance.
As pointed out earlier the evidence is clear that Ms Murchie, Sian's former teacher, who had frequent contact with Sian's mother, knew full well that this entrance was used habitually by Sian and her mother to access the school. Ms Murchie from her classroom could see them arriving and she frequently did. She was supposedly the chair of the Occupational Health and Safety Committee. If Mr Houston did not know that the entrance was being used regularly by Ms Murphy and Sian, Ms Murchie seemingly did not tell him of this nor of the impact which this decision to close the gate would have on them. More importantly, Ms Murphy was never told or even consulted prior to the decision of Mr Houston to close the gate either by Mr Houston or by Ms Murchie. It would have been an easy thing to do so. Ms Murphy had raised her concerns initially. Hers was a simple request to remedy the situation so that she could conveniently enter the school ground with her child in an electric wheelchair. Hers was a legitimate complaint when the gate was locked. No rational discussion with her was even attempted. The fact of her having raised the issue, which was in my view a reasonable thing for her to do, was simply the catalyst for yet another confrontation. The question of Sian's access to the school grounds was an obvious problem. Indeed it had been for some time and had been discussed at the Case Management Meeting on 28 April 1997. A moment's reflection would have revealed the extensive impact upon their access to the school if the gate was closed and locked. There were obvious reasons why the entrance in question was for Sian and her mother the most practicable and convenient. Yet without reference to her the decision was taken by Mr Houston to close the gate and padlock it without consulting or even informing Ms Murphy. She was simply presented on the morning of 26 November 1997 with a locked gate. This constituted for Sian and her mother a very substantial detriment. One alternative for them was to use Gates 2 and 3 but this was a practical impossibility. The other alternative was for her to have to negotiate the considerable traffic in Lovell Street and thence proceed to the main entrance in William Street. From the intersection of Bowral Street and Lovell Street to the William Street entrance was a significant distance and an obvious and dangerous inconvenience. Common courtesy at least would have dictated that Ms Murphy should have been consulted about the decision and/or given notice of the intention to close and lock the gate. Better still Mr Britcher might have sensibly undertaken the modest task of levelling the ground. But the intervention of the dominant Mr Houston excluded the likelihood of either of such options. His decision to close and lock the gate was spiteful and grossly discriminatory.
In his evidence, which was given at the end of a lengthy hearing, Mr Houston proposed an alternative route which he stated Ms Murphy could have taken from her home via other streets in the area which are not shown on Exhibit 7 and which would have her enter the school grounds by the main entrance in William Street. There was no attempt from either side to debate the merits or otherwise of the route lately proposed by Mr Houston. It was at no stage put to Ms Murphy as an acceptable alternative. One is left with what, on any view, was the only likely, convenient and practicable route for Sian's wheelchair and her mother, that is, via Bowral Street to its intersection with Lovell Street with entry to the school grounds there via Gate 4. If Mr Houston had seriously considered the entrance at Gate 4 as "dangerous" and had honestly considered that the child's use of it in a wheelchair was "dangerous" then consultation with Ms Murphy on the merits of his proposed alternative route would have seemed an obvious option. I am satisfied that the alternative proposed by Mr Houston was never ever considered by him until the issue had gained considerable momentum during the course of the inquiry. The question remains whether the decision to close the gate was unlawful.
I am satisfied that the gate closure and the denial of access was treatment of Sian which was less favourable than the treatment afforded able bodied children who had a variety of alternatives provided for them so that they could access the school. The latter could conveniently and easily access the school by means of any one of the other various entrances in William Street or Lovell Street. The entrance at Gate 4 and near the intersection of Lovell Street and Bowral Street was the most convenient and the only practicable entry for Sian in her wheelchair accompanied by her mother. The deliberate decision to close it and to padlock it was one taken for the express purpose of denying to Sian and her mother the opportunity to enter on to the school premises by what was for them the most convenient and therefore their habitual mode of entry. The closure was a substantial detriment for them. This discriminatory act occurred only because of Sian's disability. Had it not been for her disability she would not have had to use this entrance. The decision to close that entrance was not taken because of any alleged danger to Sian, her mother or any other user, but was falsely presented as such. In fact it was taken on account of her disability. In my view the closure was an unlawful act of discrimination and contrary to section 23 of the Act.
8. THE COMPLAINTS OF MS MURPHY AND MR GRAHL
8.1 Sections 22, 23 and 69 of the Act
Section 69 of the Act provides:
"69(1) A complaint in writing alleging that a person has done an act that is unlawful under a provision of Part 2 may be lodged with the Commission by:The complaints to the Commission were made by Ms Murphy. She was complaining on behalf of Sian, on her own behalf and on behalf of Mr Grahl. Both parents were also aggrieved by the discriminatory acts, which occurred in the course of the provision of the education to their daughter with a disability. The parents of the child in this context are persons comprehended by the remarks of French J in Cameron v HREOC (1993) 119 ALR 279 at 289:
(a) a person aggrieved by the act:
(i) on that person's own behalf; or
(ii) on behalf of that person and another person or other persons also aggrieved by the act; or
(b) 2 or more persons aggrieved by the act:
(i) on their own behalf; or
(ii) on behalf of themselves and another person or other persons also aggrieved by the act; or
(c) a person on behalf of another person or other persons aggrieved by the act.
"It is at least arguable that derivative or relational interests will support the claim of a person to be "aggrieved" for the purposes of the section. A close connection between two persons which has personal or economic dimensions or a mix of both may suffice. The spouse or other relative of a victim of discrimination or dependant of such a person may be a person aggrieved for the purposes of the section. It is conceivable that circumstances could arise in which a person in a close professional relationship with another might find that relationship affected by discriminatory conduct and have the necessary standing to lay a complaint."These remarks, although made by reference to similar provisions in the Racial Discrimination Act (1975) Cth are applicable to section 69 of Act.
8.2 Section 24 of the Act
Section 24 of the Act provides:
"24(1) It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's disability or a disability of any of that other person's associates:The complaint of the parents alleges in substance that the Department of Education in NSW, in the administration of the public education system, provides to them as parents "services" in the course of the education of their daughter. The definition of "services" in section 4(f) includes services of the kind provided by a government. Such services include facilities for the education of the child of Ms Murphy and Mr Grahl.
(c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
By section 24 it is unlawful in the provision of such services to discriminate against the parents on the ground of their daughter's disability. Their daughter is an "associate" for the purposes of section 24. Such discrimination may occur in the manner in which the educational authority through its school principal provides those services to the parents of the child.
It is unnecessary to canvas further the complex matrix of fact which is dealt with above.
The parents complain that they were discriminated against on the ground of Sian's disability in the manner in which the educational services were provided to them and rely on the following matters:
* The failure of Mr Houston to accept the enrolment of Sian until a matter of days prior to the commencement of the 1996 school year.
* The failure to provide an efficient and beneficial case management program in respect of Sian.
* The failure to make proper arrangements to ensure the timely provision of proper furniture so as to ensure the comfort of Sian within the classroom..
* The failure to communicate properly and to consult with the parents in relation to matters concerning Sian's well-being in the school.
* The maintenance of a deteriorating and hostile relationship between the principal and other school staff and the parents of the child which led to the development of an environment of hostility within which the child was to be educated.
* The refusal to address properly the provision of suitable access to the school for Sian in her wheelchair whilst under the supervision of her mother, to consult with the parents on this issue and finally, without notice to the parents, locking the gate which provided their habitual access to the school grounds.
In these and related respects the parents of the child with a disability were treated less favourably within the school than were the parents of able bodied children. Because of the combination of matters they were frequently subjected to stress and habitually perceived as "trouble makers" or "problem people" whenever one or the other sought to ensure that the special educational needs of their child were properly addressed and accommodated. The apparent inability of Mr Houston and key staff properly to communicate and address the parents' concern led to the development of an unsavoury and hostile environment which caused the parents to leave Bellingen where they had lived for some years and to transfer their daughter to another school within the same system where proper and caring facilities were provided, so as to facilitate the personal development of their child within the school environment. This was a substantial detriment. It occurred because of Sian's disability.
In my view the parents were the victims of unlawful discrimination in breach of section 24(1)(c) of the Act.
9. THE COMPLAINT OF VICTIMISATION - SECTION 42
Sian's parents allege that in breach of section 42(2)(b), (f) and (g) of the Act (together with the provisions of s.66 of the Act) Mr Houston subjected them to a detriment because:
* they had brought proceedings under the Act, namely, the relevant complaints;
* they had reasonably asserted the rights of Sian, which it was the object of the legislation to ensure.
They alleged that Mr Houston had acted unlawfully in breach of the provisions of the Act.
The specific acts of victimisation alleged are:
* the permanent closure and padlocking of the gate on 26 November 1997; and
* summoning police and having police remove Ms Murphy from the grounds of the school on 1 December 1997.
This complaint of victimisation against Mr Houston can only be substantiated if it can be found that the gate closure on 26 November 1997 and Ms Murphy's removal from the school grounds at the direction of police was on account of and reason of one or other of the matters referred to in paragraphs (b), (f) and (g) of sections 42(2) of the Act.
The two events in question which occurred on 26 November 1997 and 1 December 1997 respectively were the final events in the long saga which had commenced with Ms Murphy's phone call to Mr Houston on 7 March 1995 when she indicated her intention to enrol Sian at Bellingen Primary School at the commencement of the 1996 school year. Between March 1995 and December 1997 there was a clearly defined and unmistakable deterioration in the relationship between the parents and Mr Houston. The numerous incidents, some of which were significant and others which were of lesser significance, were all part and parcel of that. The final events which are alleged to be the acts of victimisation were the final events in the course of the parents' and Sian's relationship with the school. By the time they occurred, the parents had exchanged contacts for the sale of their home in Bellingen. They left Bellingen shortly after December 1997. In the course of that deteriorating relationship the parents had lodged a complaint with the Commission on or about 30 May 1997. They had from the outset of the relationship with Mr Houston in March 1995 asserted the rights of their daughter Sian to an appropriate education in a mainstream rather than a segregated setting, and they had persistently alleged the failure of Mr Houston and others to act in a non-discriminatory way towards Sian and themselves.
In that context it is simply not possible to find that the gate closure incident on 26 November 1997 and the removal of Ms Murphy by police from the school on 1 December 1997 were discreet acts done by way of retribution and only because of the complaint of discrimination and the other matters referred to in sub-paragraphs (7) and (9). Rather, they were the final incidents in a continuum of events which formed part of an ongoing seriously deteriorating school/parent relationship the common theme in which was the serious disability of Sian.
I am not satisfied that the acts of Mr Houston on 26 November 1997 and 1 December 1997 were acts of victimisation. Rather both were the unfortunate and final reflection of an obvious inability of the school principal and his leadership to properly deal over a long period with the special needs of a seriously and progressively disabled child and the reasonable concerns of her devoted and caring parents.
The complaint of victimisation cannot be substantiated.
Section 103 of the Act provides that after holding an inquiry and finding that a complaint has been substantiated the Commission may make determinations of the kind specified in the section.
I make a declaration that the NSW Department of Education, through its school principal at Bellingen Primary School, Mr Houston, committed an act which was unlawful pursuant to section 22(1)(a) of the Act by its failure to accept the complainant's application for the admission of Sian Grahl as a student at Bellingen Primary School.
I make the further declaration that the NSW Department of Education, through its employees at Bellingen Primary School, committed acts which in combination were unlawful under section 22(2)(a) of the Act in that Sian's access to the educational benefits provided by the Department were limited.
I make the further declaration that the NSW Department of Education, by its principal at Bellingen Primary School, Mr Houston, committed an act which was unlawful under section 23(1)(c) of the Act in that on 26 November 1997 Mr Houston directed the closure and the padlocking of the gate which had habitually provided access for Sian and her mother to the Bellingen Primary School.
I make the further declaration that the NSW Department of Education, by its servants and agents at Bellingen Primary School, committed acts which in combination were unlawful under section 24(1)(a) because of the manner in which the parents of Sian, Ms Murphy and Mr Grahl, were provided with the educational services offered by the Department at Bellingen Primary School.
I declare that the complaint of victimisation against Mr Houston pursuant to section 42 of the Act has not been substantiated.
The question remains whether there should be further determinations pursuant to section 103 of the Act.
The parents and the child suffered significant detriment in the course of their relationship with the principal and other personnel at Bellingen Primary School from March 1995 until the incident on 1 December 1997. The relationship between school and parents and child was persistently problematic and categorised by ongoing antagonism on the part of the school principal which left the parents and the child persistently anxious and depressed and which for them was a persistent cause of their ongoing unhappiness and frustration between March 1995 and December 1997. Their only relief was to sell their home in Bellingen and re-settle in Sydney with the child who is now in a supportive learning environment at a school conducted by the NSW Department of Education.
Pursuant to section 103(b)(ii) of the Act the Commission may make a declaration that the respondents should perform any reasonable act or course of conduct to address any loss or damage suffered by complainants. Given the discriminatory acts and conduct to which this child and her parents were subjected at Bellingen Primary School between March 1995 and December 1997, it is in my view reasonable for the NSW Department of Education on behalf of the respondents to apologise in writing to this child and her parents to redress in part the obvious hurt suffered by the child and her parents both prior to and during the child's enrolment at Bellingen Primary School. This apology should acknowledge that the NSW Department of Education is intent upon and seeks to ensure the creation of a non-discriminatory environment in its schools generally but that at Bellingen Primary School between March 1995 and December 1997 its policy was not implemented by the then school principal and that as a result Sian Grahl and her parents Ms Murphy and Mr Grahl suffered considerable hurt and distress. This written apology should also be inserted in the newsletter of the Bellingen Public School and in any newspaper circulating in the Bellingen District. The apology should be cast in terms acceptable to the Commission.
Further, this case is one in which it should be declared that the first respondent should pay to the parents of the child Sian Grahl compensation in the sum of $25,000.
I therefore make a further declaration that the first respondent should make a written apology to the child and her parents in accordance with the above determination.
Finally, I declare that the first respondent should pay the parents of Sian Grahl by way of compensation the sum of $25,000.
Dated this27th day of March 2000
The Hon William Carter QC
1. Introduction 2
2. General findings and comments 3
3. The complaints 10
3.1 The first complaint - Sian Grahl 10
3.2 The second complaint - Sian Grahl 11
3.3 The third complaint - Ms Murphy and Mr Grahl 11
3.4 The fourth complaint - Ms Murphy and Mr Grahl 11
3.5 The fifth complaint - alleged victimisation - Ms
and Sian Grahl 12
4. The enrolment of Sian at Bellingen Primary School 12
5. The enrolment complaint - section 22(1)(a) 31
5.1 The relevant provisions 31
5.2 Direct discrimination - section 22(1)(a) 31
6. The access to benefits complaint - section 22(2) 36
6.1 General 36
6.2 Case management issues 40
6.3 Property issues 47
6.4 Sian and the classroom teacher's aide 50
6.5 The poster/school assembly incidents 52
6.6 The bin incident 55
6.7 The gate closure 56
6.8 Section 22(2)(a) - conclusion 56
7. The gate closure complaint - section 23(1) 58
8. The complaints of Ms Murphy and Mr Grahl 67
8.1 Sections 22, 23 and 69 of the Act 67
8.2 Section 24 of the Act 68
9. The complaint of victimisation - section 42 70
10. Relief 71