Mrs Cowell and Fleur Cowell v. A School
IN THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
DISABILITY DISCRIMINATION ACT 1992 (CTH)
JUDGE: KATHLEEN McEVOY
Number of pages - 20
DATE OF HEARING: 12 and 14 July; 6 October 1999
DATE OF DECISION: 10 October 2000
Complainants represented by: Mrs Cowell for herself and on behalf of Fleur Cowell.
Respondent represented by: Lindy Powell QC instructed by Mellor Olsson, Solicitors.
REASONS FOR DECISION OF INQUIRY COMMISSIONER
Inquiry Commissioner Sir Ronald Wilson handed down a decision dated 23 March 1998 which made determinations concerning a complaint originally made by Mrs Cowell on behalf of herself and her daughter (Fleur Cowell) ("the complainants"), pursuant to the Disability Discrimination Act 1992 (Cth) ("the Act"), in August 1996. The Disability Discrimination Commissioner had referred that complaint to the Commission for a public inquiry and that was conducted by Commissioner Wilson in November 1997.
Commissioner Wilson made an order at the commencement of his inquiry pursuant to section 87(1)(c) of the Act which suppressed the identity and names of the complainants and the respondent. Part of the suppression order continues in place and I shall refer to this matter below.
The subject matter of the original complaint related to allegations of both direct and indirect discrimination by the respondent school ("the School") in relation to Fleur's education while she was enrolled in the School, and of allegations of harassment on the ground of her disability occurring towards the end of her period of enrolment with the respondent School. Fleur suffers from a disability within the meaning of the Act: she was diagnosed in 1987 with Perthes' disease. This affected her right hip and caused mobility difficulties. Fleur attended the School in 1994, 1995 and 1996, and during that period underwent surgery to correct her hip problems as a consequence of the disease. The complaint alleged Fleur was unable to attend some of her classes during that period due to their location in the school premises: her school "House" was located upstairs, and she was unable to manage the stairs. Accordingly Fleur was located for much of her schooling downstairs in the library. It was also alleged Fleur was prevented from attending school functions and academically and socially disadvantaged by the actions of the School. The respondent denied the allegations of discrimination and its view was that it had done everything it reasonably could to accommodate Fleur's disability. The respondent did not contest Fleur's assertion that she suffered from a disability within the meaning of the Act.
Commissioner Wilson made a number of findings in his determination of 23 March 1998. In particular he dismissed Mrs Cowell and Fleur's complaint pursuant to sections 6 and 22 of the Act that Fleur had been subjected to indirect discrimination by the School: Commissioner Wilson's view was that no requirement or condition had been imposed by the respondent on the complainant with which a person without a disability would be more able to comply. This complaint had been made in relation to Fleur's school House being located in an upstairs classroom which Fleur was not able to attend because of her disability which made it very difficult for her to deal with stairs.
Commissioner Wilson also dismissed the complaint of harassment contrary to section 37 of the Act, finding the complaint not substantiated.
Commissioner Wilson found the complaint of direct discrimination contrary to sections 5 and 22 of the Act to be substantiated. In making this finding, Commissioner Wilson concluded that "the discrimination was of a relatively minor nature, contributing to Fleur's subsequent distress and damage only in the proportion of 25%". He made no finding as to quantum of compensation, as it had been agreed at the hearing conducted by him that this matter would be dealt with separately.
Subsequent to the handing down of this decision both the complainants and the respondent sought judicial review of Commissioner Wilson's decision, pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). The application for review was heard by Mansfield J in the Federal Court of Australia on 15 May 1998 and he handed down his decision on 11 November 1998 (A School v Human Rights and Equal Opportunity Commission (No 2) and anor (1998) 55 ALD 93). Mansfield J set aside the decision of the Commission that the School directly discriminated against Fleur contrary to sections 5 and 22 of the Act, and the Commission's decision that the School was responsible for a specified percentage of any damages suffered by Fleur. Mansfield J referred back to this Commission for re-hearing the question of whether the School directly discriminated against Fleur, and further to make a determination as to any relief appropriate for Fleur, should such discrimination be found to have occurred. Mansfield J also referred back to the Commission the issue of a complaint of harassment alleged to have occurred contrary to section 37 of the Act in relation to one of the incidents of harassment alleged to have occurred at the start of Term 1 in 1995. Mansfield J was of the view one of the allegations of harassment had not been dealt with by Commissioner Wilson in his determination of the complaint, although evidence had been given in relation to that particular allegation.
In all other respects Mansfield J upheld the Commission's decision.
Accordingly, this matter was listed for a further public inquiry which was conducted by me in Adelaide pursuant to section 79 of the Act on 12 and 14 July 1999. Both parties then provided written submissions and a further day of discussion of those submissions was held on 6 October 1999. Mrs Cowell made a number of requests and submissions relating to this matter: in particular she made submissions in relation to the suppression of the name of the complainants; and further requested, on 8 March 2000, that I hear further evidence by way of examination of a diary of Fleur's which had come to light since the hearing and to provide to Mrs Cowell an opportunity to further cross-examine a teacher at the School.
In relation to the application to re-open the evidence, having considered the written submissions made by Mrs Cowell and the respondent, I decline to reopen the matter. I do not consider that my decision will be assisted by the further evidence sought to be adduced and it would be highly irregular to admit evidence of this nature at this stage of the proceedings.
In relation to the suppression orders, Mansfield J, in separate reasons for
decision, also published on 11 November 1998, made the following
"Pursuant to section 50, [of the Federal Court of Australia Act 1976 (Cth)] I make an order forbidding until further order the publication of the names of the applicant and of the second respondent to these proceedings, and the names of the teachers at the school who were involved in the matters about which the complaint to the Commission was concerned, and the name of the House at the school to which the younger respondent was attached upon her enrolment at the school. I give liberty generally to the parties, and any person showing a proper and sufficient interest in so doing, to apply to vary or discharge that order."
In the course of the public hearing which I conducted in this matter, on application by Mrs Cowell I indicated that I would vary the Commission's suppression order to the extent that it would no longer apply to the identity of Fleur. However, I indicated to Mrs Cowell that in my view she had still to make application to the Federal Court of Australia to have Mansfield J's order discharged or varied. Mrs Cowell has advised that she has made an application to the Federal Court of Australia to vary the order of Mansfield J insofar as it related to the second respondent to the proceedings before him and that, by consent, this variation has been granted. I have been provided with a copy of the order of Mansfield J dated 19 January 2000 to this effect. Under these circumstances the order suppressing the publication of the names of Fleur and Mrs Cowell no longer applies. I have made no order in relation to the name of the School and the teachers and to this extent the Commission's suppression order and that of the Federal Court continues to apply. However, in light of my findings I can see no reason why the entirety of the suppression order should not be lifted and I give either party leave to make application to the Commission for this to occur. Of course, further variation of the order of Mansfield J of 11 November 1998 would also be necessary.
At the inquiry the subject of this determination, evidence was given by two further witnesses: one witness was a teacher at the school, and the other a former student. For the present, in the light of the continuing order of the Federal Court and in order to be consistent with Mansfield J's order, I will direct that the names of both witnesses and anything tending to identify them not be published. This direction is made pursuant to section 87(1)(c) of the Act.
There are only two matters in issue before me at this inquiry. The issues were identified by Mansfield J in the reference back to the Commission in his judgment of 11 November 1998. The issues were clearly set out in his judgment: first, whether the School directly discriminated against the complainants, and, if so, was the appropriate remedy applicable in relation to the complainants. The second issue is to make a determination in relation to the allegation of harassment not determined by Commissioner Wilson.
At the inquiry Mrs Cowell argued strenuously I should consider broader issues and in particular whether her complaint alleging indirect discrimination should be reconsidered. Justice Mansfield clearly upheld Commissioner Wilson's determination in relation to the complaint of indirect discrimination: Commissioner Wilson found this complaint not to be substantiated and this was upheld in the Federal Court action.
In relation to the proceedings before me, I determined it was unnecessary to rehear evidence already the subject of a determination. Justice Mansfield suggested this course of proceeding would be possible and desirable, pursuant to section 94 or 98 of the Act. Section 94 does not seem to precisely apply in relation to evidence given before this Commission in a previous public inquiry of a complaint made under the Act, but I note section 98 of the Act provides the Commission in conducting an inquiry is not bound by the rules of evidence, and may inform itself in such manner as it thinks fit: s.98(1)(a), and further, in s.98(1)(b) the Commission in conducting an inquiry "must conduct the inquiry with as little formality and technicality, and with as much expedition, as the requirements of this Act and a proper consideration of the matters before the Commission permit". In reliance on section 98 of the Act I propose to take into account all the evidence provided at the public inquiry into Mrs Cowell's and Fleur's complaints before Commissioner Wilson. The parties did not have any objection to this at the inquiry, although Mrs Cowell wished to call further witnesses. There was some discussion at the inquiry as to which witnesses Mrs Cowell would call, and indeed she proposed to call some witnesses who in the event were unavailable. However, Mrs Cowell called two witnesses who gave evidence at the inquiry: in the light of my direction above, that consistent with the order of Justice Mansfield the names of witnesses before this inquiry should not be published, those witnesses will be identified as Mr PX a student, and Mr CY a member of the teaching staff of the School. I shall deal with their evidence below.
Pursuant to section 85(2) of the Act I gave leave to both parties to have legal representation before the inquiry. The complainants were not in the event legally represented: Mrs Cowell explained she had sought legal support from the Legal Services Commission but support by way of representation had not been granted. Nevertheless, I am satisfied the continuing legal representation of the respondent did not present any hindrance to the presentation of her case by Mrs Cowell, and the respondent's legal representation was of assistance to the Commission in the conduct of the inquiry. This was particularly the case given the way in which the matter had proceeded to this further inquiry: the matters before me were essentially legal matters referred back by the Federal Court. Further, I considered it would be unfair at this stage of the inquiry to exclude legal representation to the respondent, as from the commencement of the proceedings before this Commission it had leave to be legally represented. I note further there was no other representative within the School who had the carriage of this matter, and in my view it would not have been possible for the respondent to present its case at the public inquiry without legal representation.
I note, as did Commissioner Wilson in his determination, that Mrs Cowell conducted the representation of her complaint and the complaint she made on behalf of her daughter with considerable skill and capacity.
2. THE LAW
The following sections are relevant to the complainants' case:
Section 5. Disability Discrimination
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 of would treat a person without the disability.
5(2) [where different accommodation required] 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 the disability."
Section 22. Education
22(2) [Access to benefit, expulsion] It is unlawful for an educational authority to discriminate against a student on the ground of the student's disability or a disability of any of the student's associates:
(a) by denying the student access, or limiting the student's access, to any benefit provided by the educational authority; or
(b) by expelling the student; or
(c) by subjecting the student to any other detriment."
Section 37. Harassment in Education
37 It is unlawful for a person who is a member of the staff of an educational institution to harass another person who:
(a) is a student at that educational institution or is seeking admission to that educational institution as a student; and
(b) has a disability;
in relation to the disability."
3. THE EVIDENCE
I have commented above that I propose to take into account the relevant evidence presented at the public inquiry before Commissioner Wilson. This is the only evidence before me in relation to the complaint of harassment. In relation to Mrs Cowell and Fleur's complaint of direct discrimination further evidence was called by Mrs Cowell, but no further evidence was called by the respondent. The respondent referred me to specific aspects of the evidence presented before Commissioner Wilson and I take these into account. There had been a very significant amount of evidence given before Commissioner Wilson and the respondent made very detailed submissions concerning them. The respondent also provided a schedule of the aspects of the evidence which it considered relevant to its submissions and provided these to Mrs Cowell prior to submissions being made at the inquiry.
3.1 Complaint concerning harassment.
In her original complaint, Mrs Cowell alleged Fleur had been subjected to harassment in the course of her enrolment at the School. Commissioner Wilson dealt with two allegations of harassment which were alleged to have been made on or about 1 March 1996 when Fleur returned to school after a long absence. Commissioner Wilson found those complaints of harassment not to be substantiated, and his finding was upheld by Justice Mansfield. However, Justice Mansfield concluded Commissioner Wilson did not deal with a third allegation of harassment alleged to have occurred in the course of a maths class in 1995. Justice Mansfield set out the evidence relevant to this given by Fleur in the following account:
"In Term 1 in 1995, the incident of alleged harassment, contrary to s37 of the DD Act occurred. AJ was transferred from one class group to another, so that she could be taught a particular subject downstairs. She complained in evidence that the teacher
"...didn't treat me well at all. He was quite rude. He asked me things he knew I didn't know in front of the class. He always seemed kind of amused if he knew I didn't know the answer, and I said that I didn't know it, or I got it wrong. Yes, he just looked sort of a bit - yes, just amused.
At the start I didn't really understand what was going on. I didn't really understand that I'd been bullied, but then I started to get really disappointed."
The teacher concerned denied rudeness, and denied consciously asking Fleur questions knowing she would be unable to answer, and that he showed any amusement at her inability to answer questions. He pointed out that it is routine to ask questions to determine whether a student knows a particular topic, and to ascertain the foundation from which to build further learning.
The Commission did advert to this evidence briefly in the following passage recording finding on facts:
"Unfortunately, AJ felt that it was all beyond her and it embarrassed and upset her because she felt Mr S exposed her difficulty with the subject to the rest of the class.""
Justice Mansfield's view was that "the Commission has failed to make a decision on this aspect of the complaint".
I was referred to Fleur's evidence which related to this allegation of harassment. In examination-in-chief Fleur said she was put into Mr S's maths class which was at a grade higher than the one she had previously been in. She found the work more difficult and she gave the evidence that Mr S "didn't treat me well at all" referred to above. She further said she felt "really nervous" and that she felt as though she would "get picked on or asked something I didn't know" in Mr S's class. In cross-examination Fleur said "the whole class" was present when Mr S was rude to her, and named several of the other students. However none gave evidence. Mr S gave evidence he had taught Fleur in Year 9 in 1995, having taught her science in the previous year. He gave evidence he had been aware of Fleur's difficulties and the seriousness of the illness from which she suffered, and that he was familiar with the difficulties which Perthes' disease creates for a child. He gave evidence he had discussed with Fleur the fact that he knew another person (also a member of the respondent's staff) who had a child with Perthes' disease.
Mr S categorically denied he had been rude to Fleur. He said he believed he had not been rude to any of his students and believed he had never used the expressions to Fleur which she alleged: in particular, "you have no idea". He gave evidence as follows:
I asked questions. I ask questions in a maths class as part and parcel of teaching maths, but whether the student knows the answer of course, you can't guarantee that. You ask a question to find out what in fact they know so that you can build on what's known, and obviously that's the reason for the questioning."
Mr S said it would be "quite pointless" to ask Fleur a question knowing she did not know the answer, and he further denied he had ever been or appeared amused when she was unable to answer his questions. In cross-examination Mr S said he did not believe he had asked questions specifically of Fleur, but rather had asked questions "generally across the classroom to find out just what the level understanding is, that you might build upon that". He denied he had singled Fleur out in any particular manner. He concluded it "was very evident" Fleur was having problems with maths, but he continued to ask questions to the class, and denied he was amused at Fleur's expense. He said he could not recall Fleur looking "uncomfortable and embarrassed" in class.
3.2 Evidence on direct discrimination.
Most of the evidence relevant to the complaint of direct discrimination is also contained within the transcript from the previous inquiry conducted by Sir Ronald Wilson. I take this into account and refer to it further below. However, Mrs Cowell called two witnesses and I deal with their evidence here.
3.2.1 The evidence of PX.
Mr PX was aged 17 years when he gave sworn evidence at this inquiry. He told the Commission he had commenced as a student with the School in Year 4 in 1991. In 1996 he had broken both legs and had both his legs in plaster casts, and he was off school for two weeks. The period of time he was away from school was while exams were being conducted or just prior. He told the Commission he had been told to do revision work at home, and areas where he was advised to revise were identified. He was not sent work as such. He did not receive any assignments to do but undertook revision work. He said he did not recall his sister, who was also a student at the School, bringing work home for him, or his mother bringing work home.
When he returned to the School he was told he could have breaks during the exams and could work in the library if he could not manage the stairs. He was not given any individual classes or support when he went back to school, and nor was this suggested.
3.2.2 The evidence of CY.
The other witness called by Mrs Cowell was Mr CY, a teacher with the School for more than 20 years. Mr CY gave evidence on affirmation, and said he would have taught "thousands" of children in his time with the School.
Mr CY said when students were away from school for any period of time after illness, as their teacher he would always make sure he caught up with the student to give notes and worksheets which had been provided during the student's absence from school. He said if he were requested to send work home for the student to do while away, he would do so, but not automatically: he would only do so on request, and certainly would not do so if it appeared the student was unable to do the work at home. Mr CY said it was school policy to always provide every assistance to students, and if a student returned to school after a prolonged absence he would invite the student to come to see him and make himself available to provide assistance. He said generally parents would pursue this practice in any event. Mr CY said there were no formal arrangements within the School as to what action should be taken if a student was away for an extended time. Sometimes in teachers' meetings individual students and their circumstances might be discussed, although this more generally happened with the teachers who were specifically involved with the student. Mr CY could not recall Fleur being discussed at any general teachers' meetings, but he said her circumstances were discussed at House meetings. Mr CY said there was a teacher employed at the School who dealt with students with special learning needs: this teacher provided extra tuition and in particular supported students in English and language. A student who had lost a considerable amount of time from school for illness or some other reason would generally be put into a different class when they returned to school: however, the student would not be provided with a special teacher, but would be put in a class generally targeted for students having difficulties with a particular subject. Mr CY said individual teachers might assess a student as having special needs for whatever reasons and recommend that student attend the special class. Mr CY believed there was no reason why this facility would not be available to Fleur, or why any issues would not be discussed with Mrs Cowell and her husband.
In cross-examination Mr CY explained further that the special needs teachers were generally provided for students with specific learning difficulties, rather than those who had simply fallen behind: if a student had fallen behind, rather than having special learning needs, they would simply go into a lower or different class. He believed this was Fleur's situation: she did not have a learning difficulty, but her circumstances were such that she had fallen behind in her work. Mr CY said the School's philosophy, which he personally endorsed, was to try to extend children, not close off their options before it was necessary to do so. He believed it would be inappropriate where a student did not have a special learning difficulty, but rather had just fallen behind in their work because of illness or circumstances, to send that student to a special needs teacher. However he believed it was appropriate to make an individual assessment for each student's needs, and he believed this was done in Fleur's case.
Mr CY said the responsibility for making arrangements to send work home, if this were seen as appropriate, would generally rest with the head of House: at the relevant time this was Mrs M, who gave evidence at the inquiry held by Commissioner Wilson. Mr CY described Fleur's long period of absence as "most unusual". However, if arrangements were made for work to be sent to Fleur and this was not returned, there was not much value in continuing to send more work. Mr CY said under those circumstances, further work would probably only be sent on a specific request, and again, the teacher could only make a guess at what level of work might be appropriate to send. Mr CY considered if work was not being consistently undertaken and returned by the absent student so it could be consistently assessed by the teacher at the school, there would be little educational value in sending work home spasmodically.
Mr CY believed a student returning to school after an absence of two terms would expect to receive special attention from the School, and this would be appropriate. The form of that attention might not necessarily be the provision of notes, but was more likely to entail extensive discussion, and the student might simply be given some current work to see how he or she coped after the absence.
Mr CY believed he had provided Fleur with back notes to cover the period she was away and he had seen her working alone in the library.
3.3 The comparator to Fleur.
The evidence that was relevant to address the issue of direct discrimination related to establishing a comparator for Fleur's circumstances. To establish direct discrimination, Fleur must demonstrate that on the ground of her disability she was treated "less favourably than, in circumstances that are the same or are not materially different", a person without her disability would have been treated. Accordingly, Fleur ought to provide the inquiry with evidence as to how persons without her disability were treated in circumstances the same or not materially different to her's. Mr PX's evidence was directed to this, on the basis that Mr PX did not have Fleur's disability but his circumstances were the same or not materially different from her's, in that he was absent from school for an extended period. Mr CY's evidence was directed to demonstrating to the inquiry the School's general practice in relation to students without a disability but whose circumstances were the same or not materially different from Fleur's: that is, students without a disability but who were absent from school for a lengthy period. There was no other evidence presented in relation to this particular issue.
Both Mrs Cowell and Ms Powell for the respondent made both written and oral submissions to the inquiry. I shall deal with the respondent's submissions first.
4.1 The respondent's submissions.
4.1.1 Complaint of harassment.
The respondent submitted I should make a finding the complaint of harassment in relation to the alleged behaviour of Mr S is not substantiated. The respondent directed me to the evidence which I have recited above.
4.1.2 Submissions on direct discrimination.
In relation to direct discrimination under section 5 of the Act, Ms Powell directed my attention principally to the effect of section 5(2). She submitted it was section 5(2) which determined the extent of the respondent's response to Fleur's disability. Her submission was that section 5(2) made it clear the respondent was required to have a "reasonably proportionate response" to the complainant's disability, but did not require the respondent to take "affirmative action" in relation to that disability.
Ms Powell submitted section 5(2) would not become relevant unless there were findings that Fleur had been treated less favourably than a person without a disability. If that finding were not able to be made then section 5(2) was not relevant. She submitted however that "the effect of section 5(2) is to prevent avoidance of liability, not to extend the liability created by section 5(1)". She submitted that although on her suggested interpretation of section 5(2) no affirmative action was required, the respondent conceded even without a positive obligation placed on it, nevertheless a reasonably proportionate response was appropriate.
Ms Powell however submitted the School had responded to Fleur's disability in a reasonably proportionate way. In particular she submitted the primary complaint made by Mrs Cowell and Fleur was one which in its fundamental aspect was no longer relevant as it related to a complaint of indirect discrimination which had been held to be not substantiated by Commissioner Wilson: Commissioner Wilson's finding in this respect was upheld by the Federal Court. This complaint was that Fleur had been subjected to discrimination in that she had not been provided with a downstairs teaching environment. Her complaint was that her House had its "home room" upstairs and the School had refused to transfer this home room downstairs. Commissioner Wilson found from March 1994 and consistently thereafter, the School had offered Mrs Cowell and Fleur a change of House so that Fleur could be taught in a downstairs room. Mrs Cowell and Fleur consistently rejected that offer as Fleur wished to remain in the House in which she had been originally enrolled. It was this refusal which meant Fleur was, for a number of lessons, alone in the library, rather than in a classroom environment with her peers.
Although the central and primary aspect of this complaint was, in Ms Powell's submission no longer relevant, she submitted nevertheless that a number of Fleur's other complaints were a direct consequence of her refusal to accept the transfer to another House. She submitted "there was a causative relationship between Fleur's refusal to change Houses and the subsequent matters of which she complained". Commissioner Wilson rejected Mrs Cowell and Fleur's evidence that they had not been offered a change of House after the initial very early offer in March 1994. It was the rejection of that evidence which led to the dismissal of the complaint of indirect discrimination. Ms Powell submitted, having rejected Mrs Cowell and Fleur's allegation that no change of House was offered and therefore Fleur was obliged to have all her lessons outside the classroom and in isolation, "means that the circumstances of detriment now complained about are causally linked to the complainants' own decisions and actions, not to the school's treatment of her". Ms Powell further submitted:
"It would be untenable to argue that a disabled person could create, by her own actions, circumstances whereby services could only be provided by the implementation of exceptional strategies, and then complains that the failure to implement those strategies amounted to less favourable treatment".
Ms Powell submitted the onus of proof to establish the discriminatory action lay with the complainants. She submitted the complainants had not discharged that onus of proof. She conceded the onus of proof was extremely difficult for a complainant to establish: the complainant, to discharge that onus of proof, needed to provide evidence that students without a disability enrolled in the School had been or would have been treated differently from Fleur if their circumstances had otherwise been the same as her's, and that such different treatment would have been or was more favourable. Ms Powell conceded in discussion it would be extraordinarily difficult for a complainant to establish an appropriate comparator: this was what Mrs Cowell had sought to do in calling the witness PX. The relevant comparator must be a student without disabilities, but who has for some reason had extensive absences from school, and as a consequence fallen behind in their school work.
In her submissions concerning the allegations of direct discrimination, Ms Powell identified the evidence given at the previous inquiry before Commissioner Wilson, and I set this out below. The submissions she made relating to the allegations of direct discrimination were that there was no evidence supporting the allegations made by Mrs Cowell and Fleur, or that there was evidence the School had made a reasonably proportionate response to Fleur's disability, and the circumstances alleged by Mrs Cowell and Fleur therefore did not constitute direct discrimination under the Act. Ms Powell also submitted I should adopt the submissions made before Commissioner Wilson at the previous inquiry, and in particular the factual analysis presented in those submissions. Mrs Cowell did not object to this, and I considered this to be the appropriate approach to take, and I do adopt that analysis.
Ms Powell listed the allegations made by Mrs Cowell and Fleur which constituted their claim in relation to direct discrimination. The first two allegations relate to Fleur's circumstances whereby she spent a good deal of time at the School working alone downstairs in the library. This arose because Fleur's House "home room" was situated upstairs which Fleur had great difficulty in accessing. Ms Powell submitted these allegations relating to this aspect of Fleur's complaint could not be sustained, as Commissioner Wilson had found there was no discrimination by the respondent against Fleur in the provision of the downstairs teaching environment: this finding had been endorsed by Mansfield J. Ms Powell's submission was that a number of the other circumstances of discrimination alleged by Mrs Cowell and Fleur flow directly from Fleur's inability to have her schooling in a classroom with her peers.
Ms Powell submitted there was no evidence to support the complainant's allegation she was discriminated against, in that no arrangements were made for her to receive tuition outside classes when she was unable to attend in the classroom. Ms Powell submitted there was no evidence that tuition outside classes was offered to non-disabled students, and indeed the evidence of Mr D (before Commissioner Wilson) was that parents would often make arrangements to engage a tutor where their child was falling behind in school work for whatever reason. There was no evidence of any school policy in relation to such tuition, and Mr CY, called by Mrs Cowell before this inquiry, did not give any indication this was an arrangement the School would make: Mr CY gave evidence of the arrangements the School would make once the student returned to school.
In relation to the complaint that Fleur was subjected to discrimination in that she was not provided with the same materials as other students, and feedback on her work, Ms Powell submitted the School faced very real and practical problems in providing ongoing assistance while Fleur was away from school, because she did not return work which had been sent to her already. Mr CY gave evidence on this matter, and indicated that if work sent home was not returned with regularity it was inappropriate for the School to continue providing work, as the School would not be able to make an assessment as to what work was appropriate. His view was that such a practice would be educationally disadvantageous for the student. Ms Powell submitted there was evidence given in the previous inquiry that it was often the case the School was not notified when Fleur would be at school and when she would return to school, and under those circumstances it was very difficult for the School to prepare work for her to do out of class, either at home or in the library. Ms Powell submitted the same considerations were relevant with respect to Fleur's complaint that she was discriminated against in that she was not provided with regular contact with members of the teaching staff, or that she was not provided with the same materials or feedback as other students.
In relation to Fleur's complaint that she was not provided with a designated person for support, Ms Powell submitted the evidence indicated Fleur and Mrs Cowell were aware of the existence of the school counsellor, but chose not to consult with him, other than once in March 1996. Commissioner Wilson found the head of Fleur's House, Mrs M, provided significant "pastoral care" to Fleur, but of course was not in a position to provide this on a one to one basis permanently. Ms Powell submitted Mrs M and the librarian both responded appropriately when assistance was sought. Ms Powell submitted "it would be beyond a proportionate response" to impose any further obligation on the School, beyond that which was requested, when it was clear a school counsellor was available. Further Ms Powell submitted, there was no evidence any other student, whether disabled or not, was provided with such a service.
In relation to Fleur's complaint that she was placed in a class "for which she was unsuited", Ms Powell submitted there was no evidence of an objective nature that such conduct occurred. Ms Powell submitted the only evidence in support of this allegation was the "subjective assessment" by Mrs Cowell and Fleur, but the evidence of teachers who gave evidence before Commissioner Wilson was that Fleur was placed in classes which provided an appropriate teaching environment, having regard to her particular circumstances.
In relation to the complaint that she did not receive newsletters during her absences from school, Ms Powell directed my attention to Mansfield J's indication that the evidence was clear that the School did not send home weekly notices unless requested by parents. In any event, Fleur's sister who was a student at the School in 1995, received the newsletters herself to take home.
Fleur also made complaints she was not provided with adequate assignments and other tasks during her absences, nor provided with extra classes or tutoring. Ms Powell submitted the School had considerable difficulty in setting assignments and providing them to Fleur while she was away from school, as they were rarely returned, and it was neither sensible nor appropriate to continue to provide work when it was not possible to make any assessment of how she was keeping up. In addition, Ms Powell directed my attention to the evidence of the witness PX: he gave no evidence which supported Fleur's suggestion that other students away from school for a period of time but without disabilities were provided with such assistance. Fleur also complained the School did not monitor her academic progress with her Open Access Program in 1995: Ms Powell indicated the evidence of Mr L was that although the School was aware Fleur was engaged in the Open Access Program, it was never provided with any results or details. In relation to this matter, Ms Powell also submitted that to suggest the School had treated Fleur less favourably as a consequence of her disability by failing to obtain the results, cast a positive duty on the School which was beyond both the obligations imposed on it by the legislation and any proportionate response to Fleur's disability. In addition, there was no evidence provided to the inquiry that the School sought out such results on behalf of any other students.
In relation to Fleur's complaint the School had not ascertained her academic progress and determined what additional assistance might be appropriate, Ms Powell submitted there was no evidence to establish that complaint. Ms Powell directed my attention to evidence given before Commissioner Wilson concerning consultations about Fleur's placement in the School when she returned in 1995, and the evidence of the strategy adopted by the School in relation to Fleur's circumstances as a result of missing so much school. The evidence was that it was the School's policy to make an individual assessment of each child's educational needs, and there was no evidence to suggest this did not occur in relation to Fleur.
Fleur's final remaining complaint was the School had not maintained contact with her during her absences in 1995. Ms Powell directed my attention to evidence given before Commissioner Wilson indicating there had been communication with Fleur during her various absences from school, including her suspended enrolment period. When she was in hospital flowers and goodwill messages were sent to Fleur from the School.
Ms Powell's overall submission in relation to the allegation of direct discrimination was that it should be dismissed. In terms of the application of the legislative requirements, Ms Powell submitted there was no need for any affirmative action or positive action by the respondent, but rather that the respondent respond in a reasonably proportional way to Fleur's disability. Ms Powell submitted this was the only possible way in which the issue of a relevant comparator could be established, as it was clear it was not possible to find a real comparator. Ms Powell then submitted all the evidence demonstrated the School had responded in a reasonably proportionate way to Fleur's disability: the classroom was reorganised to accommodate the disability; timetables were altered; and there were attempts to facilitate teaching downstairs, even though Fleur had declined the invitation made on several occasions to move to a downstairs House. Further, the School permitted the use of inside stairs to the computer room. Ms Powell further submitted none of the allegations of direct discrimination as set out above were substantiated by the evidence. Moreover, many of Fleur's allegations of direct discrimination resulted from her refusal to move to a downstairs House. Under those circumstances much of what she complained of as direct discrimination was directly as a result of her refusal to move downstairs, initially offered in March 1994. Ms Powell submitted in that sense, any disadvantage suffered by Fleur was in a causative sense ascribable to this decision she made herself. Ms Powell submitted Mrs Cowell and Fleur had failed to establish on the balance of probabilities there was any discrimination such as that proscribed by the Act established on the evidence. Most of Mrs Cowell and Fleur's statements of direct discrimination were simply assertions of discrimination with little evidence to support it. In particular there was no relevant evidence of a comparator: Ms Powell submitted there must be evidence upon which the relevant comparison can be made in relation to less favourable treatment and no evidence of such a relevant comparator was provided. Ms Powell submitted where Mrs Cowell and Fleur had asserted that they did not believe other students were treated in the same way as they believed Fleur was treated, this was rejected by the School in direct evidence, but in relation to other assertions which required evidence of a comparator, no such evidence was provided.
4.2 The complainants' submissions.
Mrs Cowell made both written and oral submissions at the inquiry. She also requested I take into account submissions made earlier at the inquiry before Commissioner Wilson, insofar as they dealt with the issues presently before me. I take those into account. Mrs Cowell's submissions essentially took the form of a summary of the evidence and a restatement of the complaints. Mrs Cowell did not specifically address the legal questions raised by Justice Mansfield, but in the event these issues were widely canvassed in the oral discussion at the inquiry.
Mrs Cowell submitted Fleur was treated "far less favourably than other students", "because of the fact that she has a disability". Mrs Cowell asserted she and her husband had consulted with the relevant person at the School and had specifically asked for work to be sent home when Fleur was absent; that Fleur's home room be moved downstairs so that her classes were held downstairs; and for the support of a peer group and friends. Mrs Cowell asserts she and her husband were told to find another school, as the School could not be of any assistance. Mrs Cowell conceded Commissioner Wilson did not accept this evidence, but accepted the School's evidence that Mrs Cowell was not told she should find another school for Fleur.
Mrs Cowell said the School had been well aware of Fleur's disability and that it was a long term illness, from the time she applied for enrolment. She submitted the School had provided Fleur with less favourable treatment in respect of all of the aspects of direct discrimination alleged, including not sending home school work when Fleur was absent from school; not notifying her of special school events that would benefit her education; not keeping her parents involved by provision of school notices; not contacting Fleur when she returned to school to provide her with back notes or discuss the work she had missed; or assisting her in free lessons. Mrs Cowell directed my attention to the evidence of Mr CY who stated the School responded to requests for assistance if a student or parents requested extra help, but indicated Fleur did not receive any extra help. She also indicated Mr CY's evidence that although the School had special education teachers available, he was not aware of why the attention of special education teachers would not have been provided to Fleur. Mrs Cowell said she had not been made aware of these teachers or the services they could have provided, and believed they could have provided assistance to Fleur. She submitted these teachers were available to all students other than Fleur, and this was on the basis of her disability.
Mrs Cowell submitted the evidence was clear that teachers were notified when Fleur went to school and was in the library, but there was rarely any response to this. She submitted "teachers made the presumption that [Fleur] could not do her exams, and did not bother to help her when she said she wanted to sit them. This was less favourable treatment.". She submitted the School's asserted policy to extend a child's individual ability was not applied in Fleur's circumstances.
Mrs Cowell submitted I should not accept the evidence of Mr D who gave evidence before Commissioner Wilson, or that of Mrs M in relation to her notes concerning her discussions with Fleur's father.
Mrs J's final submission was that Fleur's "access to benefits provided by the school was restricted on the grounds of her disability". She submitted the grounds for direct discrimination were clearly made out.
Mrs Cowell also submitted the School had harassed Fleur as a consequence of her disability by placing her in a class she could not manage. In particular, Mrs Cowell submitted the evidence of Fleur made it clear Mr S harassed her with inappropriate questions and responses when her work was behind due to absence as a result of her disability, and submitted a reasonable person would have anticipated that Fleur would be offended and humiliated by this conduct. She submitted I ought make a finding Fleur had been subjected to harassment on the ground of her disability.
Mrs Cowell submitted there was no evidence before me to show that teachers made any attempt to help Fleur in the way she submitted other students were helped by the School.
5. CONSIDERATION OF THE LAW
5.1 Harassment - section 37 of the Act.
The only issue of harassment before me is the allegation that one of the teachers, Mr S, asked Fleur questions to which she did not know the answer and which he could have been expected to know she would not know the answer, and appeared amused at her confusion and embarrassment in class when she revealed her lack of understanding. Fleur's evidence was that Mr S was rude and she felt she had been bullied by him. Mr S denied he had been rude to Fleur, and denied he had consciously asked her questions which he knew she would be unable to answer. He also categorically denied showing any amusement at her inability to answer the question. His evidence was that it is routine to ask questions of students in class, and explained in his evidence it was necessary to do this as part of the general learning and educative process.
I did not have an opportunity to observe Mr S or Fleur as they did not give evidence at this inquiry. Nevertheless, their evidence is clear from the transcript and the general tenor from the submissions made before me by Mrs Cowell and Ms Powell.
Mrs Cowell did not call any other witnesses in support of her allegation of harassment, although the evidence suggests the circumstances which Fleur found difficult and of which she complained occurred before a whole class of students. In her evidence Fleur named some of the students, but I note no other students were called to give evidence either before Commissioner Wilson or at this inquiry.
I am not satisfied the allegation of harassment has been made out. I am satisfied the events which occurred in this class were part of the ordinary process of teaching and it seems likely that Fleur's disability and circumstances may have led to a heightened sensitivity about the extent to which she had fallen behind in her work, leading to embarrassment and unhappiness. I note documentation tendered at the previous inquiry indicates that maths was one of Fleur's weaker subjects and any falling back in her studies was likely to affect them most.
I am satisfied the claim of harassment against Mr S is not substantiated, and I propose to dismiss this complaint pursuant to section 103(1)(a).
5.2 Direct discrimination.
There was much discussion at the inquiry as to the meaning of section 5 and the way in which the notion of direct discrimination can be established in relation to disability discrimination. It is clear the onus of proof in this matter lies with the complainant, who must satisfy the Commission on the balance of probabilities that the proscribed behaviour set out in section 5(1) has occurred. Accordingly, the complainant must establish that because of Fleur's disability she was treated less favourably by the respondent than other persons without the disability in the same circumstances as she found herself in (or ones that were not materially different). Fleur therefore must establish less favourable treatment; that the less favourable treatment was on the ground of her disability; and further, that other persons in a similar situation to her's, but without the disability, would not have been subjected to that less favourable treatment.
It is clear Fleur was certainly disadvantaged most significantly as a result of her disability, and the disadvantages she faced included educational disadvantage. This is quite clear from any consideration of the complaint and the evidence before Commissioner Wilson, and his decision and that of Mansfield J. This documentation, including the transcript before the previous inquiry, shows graphically the very great difficulties resulting from her disability which Fleur and her family faced. I have very great sympathy for Fleur and the difficulties and disadvantages for her and her family which resulted from her disability. It is also clear from the documentation and submissions before me, which include the materials referred to above, that the School also had (and maintains) considerable sympathy for Fleur and her family. The evidence makes it clear the School acted as it saw appropriate to assist her in relation to the disadvantages consequential upon her disability which were relevant to her education, and it is also clear the School saw a need to bear in mind in so doing, both Fleur's and other students' educational needs. The issue before me in this context is whether the School's response which it saw as appropriate, was sufficient in law.
5.2.1 The requirements of section 5(1).
Section 5(1) requires three factors to be established for direct discrimination contrary to the Act to be made out as a result of a complaint. First, the aggrieved person must have received less favourable treatment; second, this less favourable treatment must be on the ground of the aggrieved person's disability; and thirdly, the less favourable treatment must be compared with treatment provided to others without the disability but "in circumstances that are the same or are not materially different" from those of the aggrieved person.
There are significant difficulties for a complainant to make out a complaint of direct discrimination under this section. First the complainant must establish the less favourable treatment on a comparative basis. This is emphasised as the core of the difficulty established by Mansfield J in relation to this matter before the Federal Court: section 5 requires that a comparator be established so a comparison can be drawn between the way a person with a disability is treated and the way a person in similar circumstances but without a disability is treated. The view taken by Mansfield J is that there is no obligation to treat a person with a disability more favourably than the way in which a person without a disability would be treated: the obligation is to not treat the person with the disability "less favourably". Further, any less favourable treatment must be on the ground of the disability. Commissioner Wilson saw as "a critical question" in relation to this complaint, whether the respondent School was responsible to some degree for Fleur's personal distress and lack of educational achievement because it treated her less favourably than it treated other students. Justice Mansfield accepted this was an appropriate identification as the issue, and was satisfied this identification was not equivalent to imposing a positive obligation on the School to act more favourably towards Fleur: Mansfield J commented it was not contended by the complainant that any positive obligation was imposed by section 5.
However, what obligation is placed on a respondent is raised by the expression in section 5(1) "to treat...less favourably": the concepts of equality and discrimination applied in Australian law (and indeed by common sense) make it clear that people can be treated in exactly the same way but this can nevertheless amount to less favourable treatment for one of those persons because that person has a disability. In the context of constitutional law, which includes discrimination as a constitutional concept, the High Court, in cases such as Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436, has considered this issue. At 478, Justices Gaudron and McHugh considered in what circustances a law could be discriminatory within the meaning of the Constitution:
"A law is discriminatory if it operates by reference to a distinction which some overriding law decrees to be irrelevant or by reference to a distinction which is in fact irrelevant to the object to be attained; a law is discriminatory if, although it operates by reference to a relevant distinction, the different treatment thereby assigned is not appropriate and adapted to the difference or differences which support the distinction. A law is also discriminatory if, although there is a relevant difference, it proceeds as though there is no such difference or, in other words if it treats equally things that are unequal - unless, perhaps, there is no practical basis for differentiation."
Although this analysis of the concept of discrimination was there applied in the context of constitutional law, it is relevant to apply generally in developing a theory of discrimination to apply to the relevant Commonwealth legislation, which includes this Act.
Section 5(2) can provide some assistance in determining what obligation is imposed on a supplier of (as in this case) educational services, in relation to a person with a disability in establishing the appropriate level of behaviour which will truly not amount to less favourable treatment.
5.2.2 Section 5(2): The obligation placed on a respondent.
There was considerable discussion both in the written and oral submissions as to the appropriate interpretation of section 5(2) of the Act. The respondent submitted there was no positive obligation imposed on it by the Act to act to affirmatively assist Fleur in relation to her disability: the respondent argued rather, it must have a proportionate response to Fleur's disability, but there was no obligation to positively discriminate. This matter was also considered by Mansfield J in the Federal Court.
Does section 5(2) simply provide a description of what amounts to a material difference, or does it set out a means of establishing how to make circumstances of disability such that they are not materially different from persons without a disability? The issue is of considerable significance: if section 5(2) defines the level of response required by a respondent, then it enables section 5(1) to operate more effectively to describe what "material difference" might mean. Otherwise, section 5(1) presents a considerable difficulty to a complainant, as in this case, in establishing a relevant comparator.
In his judgment Mansfield J comments it was not contended before him that section 5 imposed any positive obligation on the School. Nevertheless he commented:
"I do not wish to be taken as accepting that the obligation not to discriminate against a person with a disability under the DD Act does not involve some obligation to take positive action with respect to a disabled person." (at 103).
He continues, "the accommodation of that need may well require some positive action to be taken" (at 103).
He notes there are some limitations expressed in the legislation as to the extent of any obligation not to treat less favourably imposed on a respondent: in particular, references in several sections of the Act which limits the action which might otherwise be required to be taken if such action would impose "unjustifiable hardship" on the person providing the goods or services or other relevant service. In relation to education, this is reflected in section 22(4) of the Act: however that qualification of unjustifiable hardship only operates in respect of a refusal to accept a person into an educational institution where admission as a student "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". The limitation of unjustifiable hardship does not apply to the educational institution once the person with the disability has been admitted as a student. Mansfield J comments that the central issue thus for a student with disabilities once admitted to a school is to be found in section 5, not section 22, as section 22(2) does not carry an equivalent exempting provision. Mansfield J comments that what amounts to less favourable treatment must be measured in circumstances that are not "materially different", and section 5(2) provides that a requirement for different accommodation or services cannot itself provide a basis for establishing that material difference. Justice Mansfield concludes there may therefore be some positive obligation on a respondent to provide for the needs of a person with a disability such as Fleur in some circumstances.
Justice Mansfield did not express any concluded view on this matter, although he made it clear he was of the view there were some obligations which were imposed on a respondent in a case such as this, the limitations of which might well be found in section 5(2).
The central issue in Mansfield J's consideration of the Commission's previous determination was that it had not addressed the lack of a comparator which is required by section 5(1). Rather, Commissioner Wilson focused on how Fleur was treated or could or should have been treated by the School, without considering how the School treated or would or should have treated a comparator student: that is, a student in similar circumstances to Fleur but without her disability. Commissioner Wilson's conclusion was in terms of what the respondent ideally should or could have done for Fleur, rather than in terms of whether it treated her less favourably, compared with the way it treated a comparator non-disabled student. Mansfield J's conclusion relevant to this issue is set out at 106:
"Irrespective of the consequences of s5(2) upon the proper construction of "discrimination", clearly a comparison is required between two sets of circumstances to enable a decision to be made as to whether there has been discrimination. One is the real set of circumstances as to how Fleur was in fact treated. The other is the hypothetical set of circumstances as to how a student or students without that disability would have been treated, or the real set of circumstances as to how a student or students without that disability have been treated in circumstances that are the same or not materially different. Section 5(2) elucidates what may, or may not, constitute a material difference."
Justice Mansfield identified the matters in which he considered the Commission's previous consideration had been deficient and which were required to be addressed in this inquiry. He indicated it was necessary to make very specific comparisons: "The factual findings...were expressed in terms of what was needed for Fleur in her particular circumstances. The comparison with other non-disabled students is of course a difficult one to make. That is especially so in the face of what the Commission described as "unusual and extremely difficult" circumstances. Those students not forced to be absent from school by disability, would not have prolonged absences or periods of time in the library working alone. The Commission has not made any observations as to whether there were other students who experienced prolonged or broken absences from school...or how they were treated." Justice Mansfield concluded it was necessary to consider what treatment would have been accorded to other students without Fleur's disability in the same or similar circumstances; why in the event of any such differential treatment that differential treatment occurred; and if there were any differential treatment whether one reason for it was Fleur's disability.
The issue of less favourable treatment in the context of the Act is extensively and sensitively discussed by Commissioner Nettlefold in his decision in Garity v Commonwealth Bank of Australia (No H97/191, 25 January 1999). He concluded that "the `principle of reasonable accommodation'...should be regarded as a central principle of disability discrimination law. The proper construction of the Act shows that the principle of reasonable accommodation is contained in it." Commissioner Nettlefold considered this was recognised in section 5(2) and other sections of the Act. His view was that "the use of the word `favourably' [in section 5(1)] adverts to the notion of giving aid or help. A mere mechanical measure of the aid or help given, which ignores disparate capacities, needs, and circumstances is not sufficient." Commissioner Nettlefold adopted "as correct and applicable" the statement by Commissioner Wilson quoted by Wilcox J in Commonwealth v Human Rights Commission (1993) 119 ALR 133 at 151, and by other courts elsewhere:
"It would fatally frustrate the purposes of the Act if the matters which it expressly identifies as constituting unacceptable bases for different treatment, could be seized upon as rendering the overall circumstances materially different, with the result that the treatment could never be discriminatory within the meaning of the Act."
I too adopt as correct and applicable that statement.
So how does section 5(2) operate to assist in the interpretation of section 5(1), and in particular the "less favourable" means? The discussions to which I have referred above indicate a general view that section 5(2) does not provide just a description of what amounts to material differences: rather, it assists in determining how to make circumstances of disability not materially different. That is, in some circumstances there may be some positive obligation on a respondent to take steps in order to ensure there is no material difference between the treatment accorded to a person with a disability and the treatment accorded to a person in similar circumstances but without a disability. Mansfield J alludes to this in his judgment in this matter. It is my view that without this interpretation of section 5(2), it would be difficult to establish direct discrimination under the Act, except in the most blatant circumstances, and a person subjected to discriminatory treatment within the intention of the Act would most often have to rely on section 6 and establish indirect discrimination.
It is my view the substantial effect of section 5(2) is to impose a duty on a respondent to make a reasonably proportionate response to the disability of the person with which it is dealing in the provision of appropriate accommodation or other support as may be required as a consequence of the disability, so that in truth the person with the disability is not subjected to less favourable treatment than would a person without a disability in similar circumstances.
This conclusion seems consistent with the approach taken by Commissioner Nettlefold in Garity, and with the suggestions of Mansfield J in the Federal Court. In the submissions before me my attention was drawn to the discussion of this issue by the US Court of Appeals in Southern Community College v Davis (442 US 397 (1979)), and further discussions by Kirby P (as he then was) in Jamal v Secretary, Department of Health (1988) 14 NSWLR 452. In both these cases, the US Court of Appeal and the Court of Appeal in New South Wales were seeking to distinguish between those adjustments for disability which are "fundamental" or "substantial" (and therefore not required from a respondent), and those which are "reasonable" and therefore required as an appropriate response to disability. The conclusion in Davis endorsed in Jamal is that suggested above: that there is no requirement of affirmative action or positive obligation on a respondent, but there is some need for an appropriate response to disability. It was submitted this should be described as a requirement of a reasonably proportionate response, and in my view that is an appropriate expression to use, and one increasingly used by the courts.
My attention was also directed to the decision of the New South Wales Court of Appeal in Boehringer Ingelheim Pty Ltd v Reddrop  2 NSWLR 13. That case considered New South Wales legislation, but the structure of the legislation before the Court of Appeal was similar to that contained in section 5 of this Act. The Court's view was that the legislation was concerned with "the detriment concept of discrimination", rather than "reverse discrimination" or "affirmative action discrimination". The Court considered the reference to being treated less favourably "in circumstances that are the same or are not materially different" to "represent merely the draftsman's necessary drawing out of the meaning of `less favourably'. I do not think they are intended to limit the circumstances in which less favourable treatment could operate as discrimination".
I am of the view these considerations represent an appropriate and workable interpretation of section 5 of the Act. Once Fleur, with an agreed disability, was admitted as a student with the respondent School, the School could not rely on the defence of "unjustifiable hardship" in section 22(4) in relation to providing her with any particular needs as a consequence of her disability. It was obliged not to treat her less favourably, than in circumstances in which it would treat a student without a disability whose circumstances were not materially different from Fleur's, where the less favourable treatment was on the ground of Fleur's disability. This obligation did not impose a positive obligation to discriminate in Fleur's favour, but it does impose an obligation on the respondent School to establish a proportionate response to Fleur's disability so that the issue of discrimination against her on the ground of her disability was truly addressed. In my view the limits of the respondent's obligations are to be established by considering what amounts to a proportionate response to Fleur's disability. I am quite satisfied a proper reading of section 5 does not establish any positive obligation on the respondent to take affirmative action towards Fleur, but the respondent certainly could not necessarily treat Fleur the same as another student without a disability who was away from school for a long period, as that comparator would never be sufficiently precise to take into account the consequence of Fleur's disability. Fleur's disability meant not only that she was away from school for long periods and therefore fell behind in her school work, it also meant when she was at school she often worked downstairs, she lost touch with her peers and she, as well as having the other consequences of her illness and disability such as loss of energy and pain, had also lost confidence. A student who is away from school for long periods, for example because he or she is engaged in elite sports training, is a comparator in one sense (the absence from school), but is unlikely to be a sufficiently precise comparator in relation to Fleur's particular circumstances consequential upon her actual disability.
5.2.3 Application to Fleur's complaints of direct discrimination.
In none of the evidence presented before me or before Commissioner Wilson did Mrs Cowell provide clear direct evidence of a comparator relevant to Fleur's circumstances. Mr PX gave evidence: he was a student who had been away from school for two weeks as a consequence of both his legs being broken, but as a comparator this was inadequate. Mr PX was away for only a short period of time (relative to Fleur's extensive absences as a consequence of her disability), and at a time when it appeared there was no substantive teaching going on: it was just before the exams and he was revising. As a comparator he did not provide a helpful counterpoint, but in any event the evidence he gave was not helpful to Fleur's case. It was clear the School did not provide him with any particular assistance, but this of course could have been because it was a period just prior to the exams, and as Mr PX said he was just revising.
It is clear the onus of proof is on a complainant to establish the appropriate comparator and that the respondent has not responded reasonably proportionately or appropriately to the disability. I am of the view this onus of proof has not been discharged, either by direct evidence adduced before me, or in the previous inquiry or by inference from that evidence.
In saying this I would comment it is a difficult task to establish direct discrimination under this Act because of the need for a comparator: the difficulties faced by a person with disabilities such as Fleur are such that it is very hard to find a relevant comparator, or to effectively address or define the issue of reasonably proportionate response. Justice Mansfield comments on this. People without a disability will almost never be in circumstances comparable to those with a disability: disability discrimination is in this sense quite different from discrimination on the ground of sex or race. The conclusion in this matter must be that Fleur was significantly disadvantaged in her education (as in other things) because of her disability, but this disadvantage resulted from her disability. I am of the view no disadvantage such as that proscribed by the Act was a consequence of any unlawful discriminatory treatment by the respondent.
I have carefully considered the matters identified by Justice Mansfield as necessary for attention in determining Fleur's complaint. It is clear Fleur was treated differently from other students: other students were not separated from their classes or required or expected to work alone in the library. However, no other students had Fleur's incapacity to work in their upstairs home room. I am satisfied there was no obligation on the respondent to move the whole class downstairs, but in any event it is my view such a response would not have been proportionate. It was accepted by Commissioner Wilson and in the Federal Court that the respondent had made offers and suggestions to Fleur and her parents that she change to a House with a downstairs home room from as early as March 1994, early on in her enrolment in the School. Fleur and Mrs Cowell refused that offer, preferring that Fleur remain in the House in which she had originally enrolled a week or two earlier. Consequently the respondent School made other arrangements to accommodate Fleur's disability. Those other arrangements included work in the library and in some other downstairs classrooms, separated from the rest of her class. I accept the arrangements made by the School were appropriate, given Fleur's rejection of the offer to move to a House with a downstairs home room. It is these changed arrangements, either proposed or made by the School, which appear to me to constitute a proportionate response to Fleur's disability: these changed arrangements include the offer to change Houses, changes in timetabling, the use of inside stairs to access the computer room (acknowledging Fleur still had very significant difficulties with the stairs but further that the computers were located in a particular area requiring stair access), and other matters referred to in the evidence.
There is some evidence before me as to what services were provided to other students: it is clear under some circumstances work was sent home to be completed by students who were away from school for an extended period. Some work was sent home to Fleur. This was not however a consistent practice in relation to Fleur. I accept the evidence before Commissioner Wilson, and separately before me from Mr CY, that the fact the School did not persist with sending work home to Fleur was based on its inability to maintain an ongoing assessment of her capacity to continue with the work as the work was not consistently completed and returned. This assessment by the School is linked with other evidence before me and earlier Commissioner Wilson that the School asserted it made individual assessments of each child to provide each child with support according to each individual's educational needs. Fleur complained she did not obtain the same feedback and support as other students, was placed in classes for which she was unsuited and was not provided with additional assistance such as extra classes and tutoring. However, I am satisfied both that the School did provide Fleur with such educational assistance and support (including placing her in an appropriate level class) as was consistent with its assessment of her individual needs, and in any event that there is no evidence before me that other students received additional assistance that was not made available to Fleur. Fleur complained she did not have access to a designated person or persons who could provide her with ongoing support and assistance or with a special education teacher. The School employed a school counsellor and special education teachers. I am also satisfied Mrs Cowell was aware of the position of the school counsellor and indeed contacted him, but did not seek his assistance on an ongoing basis. I am satisfied the special education teachers employed by the School were not teachers who were able to assist Fleur: Fleur's disability is not one in the area with which special education teachers are able to assist. Fleur's disability impacted on her educational circumstances because it necessitated her taking extensive periods off school which put her behind in her studies, rather than impeding her capacity in an intellectual sense to pursue them. Further, I am satisfied there is no evidence that the school counsellor or special education teachers were available to non-disabled students who had long periods off school but who did not have specific learning difficulties. The school counsellor was available to Fleur in the same way as he was available to any other student, and Mrs Cowell was aware of his role but declined to utilise it.
Nor am I satisfied there is any evidence to suggest the School maintained contact with students away from school in any way differently from the level, degree and nature of contact that was maintained with Fleur while she was away from school. There was evidence that messages of goodwill and flowers were sent to Fleur when she was in hospital; and the evidence was quite clear that school notices were not sent home as a matter of course to students who were absent from school unless requested. Fleur's parents did not request the notices to be sent home, but in any event they were receiving the school notices because Fleur's sister was also at the School at that time and would have received them and taken them home. There was no evidence the School had any practice of maintaining ongoing contact with a student away from school who was conducting other studies such as Fleur's through the Open Access Program. I accept the respondent's submission ongoing contact in an educational sense with Fleur was extremely difficult for the School to maintain, as there was no development by Fleur or her parents of an ongoing line of communication by either notifying her presence at school or the periods of her absence; returning assignments which had been provided to her to complete at home; or advising her progress under the Open Access Program. In any event, there is no evidence before me the School conducted such practices in relation to other students without disabilities, or indeed that the failure of the School to maintain such contact with Fleur when she was absent for such lengthy periods of time could be regarded as constituting less favourable treatment on the ground of her disability. It seems to me persistent attention from the School while Fleur was unable to attend school because of the weakness, pain, discomfort and difficulties which her disability created for her, particularly when she was substantially immobilised following surgery, might have been entirely inappropriate and disadvantageous to her recovery. Issues of disability and illness are very difficult to assess for an outsider.
I also accept the respondent's submission that many of the matters of which Fleur complained as examples of direct discrimination were matters which arose directly as a consequence of her refusal to change Houses. It is clear many of the disadvantages which she saw as accruing as a consequence of her House having an upstairs home room, such as working in the library, feeling isolated, not having the support of her peers, etc., were factors which followed from this refusal. I am satisfied (as was Commissioner Wilson and Mansfield J) that the offer to change Houses was made and was rejected by Mrs Cowell and Fleur. Many of the matters complained of follow this decision.
The issue of the comparator student is to some extent a red herring in the light of the view I have taken in relation to the obligation on the School to make a reasonably proportionate response to Fleur's disability. However, there is in any event, little evidence of any differential treatment of Fleur compared with the way a student without a disability but in similar circumstances may have been treated. It is clear Fleur's circumstances were different by virtue of the fact that she was often not at school. When she was at school she was severely inhibited in going upstairs and as a consequence was behind in her work, and when she was at school was isolated in the library to some extent. However, there is no evidence as to how the comparator student without a disability but in similar circumstances was treated by the School. The primary evidence that is before me, which I accept, is that the School made an individual assessment of the needs of each student, including Fleur, and engaged in its educational relationship with each student on that basis.
However, I have concluded above that mere lack of differentiation between the way in which Fleur was treated, and the treatment accorded to a non-disabled student, might not be enough. The School's response must be such that, while not requiring positive discrimination in favour of Fleur, it must behave proportionately and appropriately to ensure Fleur was not subjected to less favourable treatment than the hypothetical comparator would have received. I am satisfied on the basis of the evidence before me this was the case. I am satisfied it was an appropriate and proportionate response of the school to suggest to Fleur she change Houses so she could have a downstairs classroom. Had she done so many of the matters of which she complained simply would not have occurred. She would not have been separated from her peers in class; she would not be working in the library; she would not have felt her work was neglected. I am also satisfied it was a proportionate response by the School to not send her further work to complete at home when initial work had not been returned. In those circumstances no assessment was able to be made by the respondent as to the level or nature of work which was appropriate to send. Such a decision would have been inconsistent with the School's own policy and practice in relation to its treatment of its students.
While the matters of which Fleur complains clearly are consequential upon her disability, it does not necessarily follow that the respondent has treated her less favourably on the ground of her disability. It was because of her disability she was off school for long periods of time; it was because of her disability she was not able to be placed in an upstairs classroom. But it was her disability which created these problems, not the School's response to her disability. The School's response to her disability was to offer her a House with a downstairs home room, which she rejected. It further responded to her disability by sending her good wishes and flowers when she was ill, and sending some work home for her to complete. It responded to its educational relationship with her by not persisting in sending further work home when she did not return it and no appropriate educational assessment could be made to continue this practice. I am satisfied these considerations address each of Fleur's complaints of direct discrimination.
In relation to other aspects of Fleur's complaints, I am satisfied there was either no evidence to support them and they remained mere assertions by Fleur (for example her assertion the School did not make any assessment of her academic progress when she returned to school in 1995 and did not place her in appropriate classes), and under those circumstances those complaints are not made out.
I propose to dismiss Fleur's complaint of direct discrimination pursuant to section 103(1)(a) of the Act.
6. THE IDENTITY OF THE COMPLAINANT
As I propose to dismiss both aspects of this complaint before me this question is merely academic.
The issue was specifically raised before Commissioner Wilson who considered he need not determine the matter. It was also raised before me. The original complaint was made by Mrs Cowell "on behalf of" Fleur. In that complaint Mrs Cowell indicated, "I seek compensation for my daughter and for my family...". On 12 November 1997 Commissioner Wilson made a direction amending the name of the complainant to "[Mrs Cowell] on behalf of herself and [Fleur]", and indicating Mrs Cowell should be named an aggrieved party pursuant, to section 69(1)(a)(ii) of the Act.
In submissions before me Mrs Cowell indicated only she sought to be joined as a complainant with Fleur: the original complaint had referred to her husband as well as herself. Mrs Cowell told me all the matters which affected Fleur also affected her: in particular, she referred to the way in which she believed she had suffered as a consequence of the discrimination against her daughter. She said she believed she did not have the same rights as other parents as she had not received school notices, and although she had requested work to be sent home for Fleur this had not occurred, although she believed it had occurred in relation to other parents. She believed she was ignored by the School. Further, she submitted the matters which in her allegation amounted to discrimination against Fleur should also be regarded as discrimination against herself. Mrs Cowell said there were also things she was required to do because of Fleur's disability which she believed other parents did not have to do: these included signing Fleur in at school, and advising teachers of Fleur's presence.
The respondent opposed the joining of Mrs Cowell as a party. In particular the respondent submitted there was no basis in either the complaint or the evidence which indicated how Mrs Cowell could be regarded as an aggrieved person under the Act. The respondent did not object to Mrs Cowell bringing the complaint on behalf of Fleur, but directed my attention to the words of section 69 of the Act which sets out who may lodge complaints. Complaints can be lodged by "a person aggrieved" on that person's own behalf, or on behalf of another person. However, the fundamental criteria in section 69 is that for a person to be a complainant under the Act, that person must be "a person aggrieved". It was submitted this must mean a person who is subjected directly to the discriminatory behaviour alleged. Ms Powell submitted the Act did not contemplate "the extension of liability to persons without a disability who are affected in a detrimental way by the effects, in turn, of discriminatory conduct on a disabled person. To do so would be to extend liability for breach of statutory duty in an impermissible way."
I note Mrs Cowell did not make a complaint that she was discriminated against by the School on the ground of the disability of an associate: this basis of complaint would not be open to Mrs Cowell under section 22(2), as what is rendered unlawful by that part of the Act is "to discriminate against a student on the ground of the student's disability or a disability of any of the student's associates". Mrs Cowell of course was not a student, and nor was she disabled. It might, however, have been open to Mrs Cowell to make a complaint under section 24 of the Act in relation to the provision of educational services by the School to her as a parent (and associate) of a child with a disability.
Because I have determined to dismiss this complaint, the determination of this issue is unnecessary for the purposes of this determination. However, it is my view Mrs Cowell is not properly a complainant in this matter. On the basis of the complaint before the inquiry Mrs Cowell was not "a person aggrieved" in the sense referred to in the legislation. That Mrs Cowell naturally is profoundly affected by the consequences of her daughter's disability goes without saying, but this is in itself not a sufficient basis to establish unlawful behaviour under the Act. In any event I am satisfied there is no evidence Fleur has been subjected to any unlawful discriminatory behaviour under the Act, and under those circumstances of course, even if Mrs Cowell were appropriately a complainant, that complaint too would be dismissed. Even if I were to construe the complaint as one made under section 24 of the Act, there is insufficient evidence before me to suggest that Mrs Cowell herself was subject to discrimination in the provision by the School of its educational services to her as a parent.
For the reasons given above, pursuant to section 103(1)(a), I make the following determinations:
(1) I dismiss the complaint alleging harassment of Fleur by an employee of the respondent School.
(2) I dismiss the complaint made by Fleur alleging
she was subjected to direct discrimination contrary to the Act by the
I certify that this and the preceding forty pages is a true copy of the Reasons for Decision of Kathleen McEvoy, Inquiry Commissioner.
Date: 10 October, 2000