No. H 96/57
Number of pages - 64
IN THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
DISABILITY DISCRIMINATION ACT 1992
ADELAIDE, 4, 5 and 7 November 1996 and 12-13 December 1996 (hearing), 24 June 1998 (decision)
The complainant appeared in person.
The respondent was represented by Mr Stephen Jones.
This is an inquiry by the Human Rights and Equal Opportunity Commission ("the Commission") into a complaint by the complainant, to whom I refer in this decision as "W", against the Flinders University of South Australia ("the respondent").
The complainant lodged a complaint against the respondent with the Commission on 23 October 1995 alleging discrimination under the Disability Discrimination Act 1992 (Cth) ("the Act") in relation to the provision of education. The complainant's allegation was that the respondent had discriminated against her on the basis of a psychiatric disability in not providing reasonable adjustments needed to accommodate that disability and by making the negotiations for, and the agreed accommodations, so difficult as to negate any benefit from them. The complainant alleged that the consequence of this discrimination was to affect her academic record adversely. Further, the complainant alleged that the respondent did not provide a reasonable accommodation in respect of one of her subjects relating to practical teaching experience. The complainant alleged that the behaviour by the respondent of which she complained constituted indirect disability discrimination in terms of s.6 of the Act and related to the provision of education and was thus made unlawful by s.22 of the Act.
The complainant's complaint was investigated by the Disability Discrimination Commissioner ("the Commissioner") but as it appeared the matter could not be settled by conciliation the Commissioner referred the complaint to the Commission for inquiry pursuant to s.76(1)(a) of the Act on 6 March 1996.
Pursuant to s.79 of the Act I conducted an inquiry into the complainant's complaints in Adelaide on 4, 5 and 7 November 1996 and 12 and 13 December 1996 . At that inquiry the complainant presented evidence in support of her complaints; this evidence consisted of her own affirmed evidence and further evidence of four other witnesses. The respondent presented evidence at the inquiry through seven witnesses, all its employees. Final written submissions from both parties were received by me in Adelaide on 5 March 1997.
Prior to the hearing the complainant sought to extend the scope of the Commission's inquiry to include alleged breaches of sections 37 and 39 of the Act which deal with harassment in education and as an aspect of the provision of goods and services. On 10 July 1996 the complainant lodged lengthy documentation detailing specific allegations of harassment naming individuals whom she alleged engaged in that harassment. The respondent opposed the inquiry being extended to include such investigations and on 2 October 1996 I directed that the inquiry would be limited to the terms of the complainant's original complaint which did not include a complaint of harassment pursuant to sections 37 and 39 of the Act. Accordingly, the inquiry was limited to the terms of the original complaint relating to sections 6 and 22. At that time I also declined the respondent's application for leave for legal representation at the inquiry. The complainant opposed this application and did not seek leave for legal representation herself.
At the commencement of the inquiry the complainant made an application pursuant to s.86(2) of the Act that the inquiry be held in private. I did not grant that application but pursuant to s.86(2) I directed that the evidence from the complainant's treating psychologist be heard in private, and pursuant to s.87 of the Act I directed that the publication of the complainant's name be prohibited. That direction still continues.
The remedies sought by the complainant were detailed by her in a letter dated 17 May 1996 and were: a written apology from the respondent; an adjustment to her academic record to indicate no failure in the subject Language/Arts II; an undertaking that she be permitted to complete her studies without harassment or intimidation such as to jeopardise or penalise further study plans; an undertaking by the respondent to permit her to undertake her final year Teaching Practicum with the accommodation requested by her; permission to undertake the remainder of her studies externally; expenses relating to course adjustments; a change in the respondent's practices so that it in future acts consistently with the requirements of the Act; and certain financial compensation including expenses incurred in relation to study, the cost of therapy sessions necessitated by the alleged discrimination, both in the past and in the future, costs associated with the conciliation and hearing process, and compensation for loss of potential income; and compensation for pain and suffering.
Subsequent to the hearing written submissions from both parties were exchanged and were submitted. I take these written submissions into account along with the evidence presented at the hearing.
The relevant provisions of the Act pertaining to the complainant's complaint are s.6 (indirect disability discrimination) and s.22 (making it unlawful for an educational authority to discriminate on the grounds of a person's disability).
"6. 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;
(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.
"22(1). 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:
(a) by refusing or failing to accept the person's application for admission as a student; or
(b) in the terms or conditions of which it is prepared to admit the person as a student.
(2) 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 detriments.
At the commencement of the hearing the complainant also referred to s.5 of the Act;
5.(1). For the purposes of this Act, a person ("discriminator") discriminates against another person ("aggrieved person") on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
(2) For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.
3. THE EVIDENCE
At the inquiry evidence was given for both the complainant and the respondent. The complainant gave affirmed evidence and called as her witnesses Ms Helen Finch, a legal adviser to the complainant; Mr Alexander Litt, the complainant's psychologist; and Ms Helen Turner and Mr Sasha Sewell, two other students. The respondent's evidence was presented by Ms Melissa Madsen, the respondent's Disability Liaison Officer; Ms Margaret Messenger, the respondent's Equal Opportunity Officer; and Ms Lyn Tonkin, Associate Professor Faith Trent, Dr Gordon Baker, Ms Joelie Hancock and Ms Merriam (Mem) Fox, all members of the respondent's academic staff. At the inquiry the report provided by the Commissioner on the referral of this matter was also taken into evidence with the consent of both parties. A substantial amount of documentary evidence was also tendered by both parties in the course of the inquiry.
3.1 The complainant's evidence
3.1.1 W's evidence
The complainant gave affirmed evidence at the inquiry. In support of her oral evidence she referred to other documentation which she had already provided to the Commission and to the respondent and in particular the letter of complaint to the Commission dated 23 October 1995 which included various attachments; a further letter setting other details of her complaint dated 4 December 1995; and allegations of other aspects of discrimination contained in a letter of 10 July 1996 which included 14 pages of detailed information.
The complainant's written evidence refers to her belief that she had experienced repeated discrimination over a period of several years. In her complaint she states that she was a part-time student at Flinders University of South Australia in 1995 studying a Bachelor of Teaching degree. At the time she made her complaint about ninety percent of the course had been completed including two full time Teaching Practicums. The complainant states she has a psychiatric disability affecting her concentration, short term memory and attendance and that she had provided the full details of the effects of her disability to the Health and Counselling Department of the University. She states that she believes she has a poor academic record because of her psychiatric disability. The complainant made her complaint against the Flinders University of South Australia on the basis that it had not provided adequate training to its employees, advising them of disability discrimination and their obligations under the Act, and she stated that it was a consequence of this failure by the respondent that her attempts to gain "reasonable adjustments" had mostly been unsuccessful and unsatisfactory, as well as the process of negotiation itself being extremely stressful and therefore exacerbating her difficulties.
The complainant detailed a number of specific incidents which in her view amounted to discrimination on the ground of her disability. She indicated that, on one occasion in 1993, a lecturer advised her to withdraw from his topic when she disclosed to him the nature of her disability, and in 1994 she failed in another topic coordinated by this same lecturer "because he made himself unavailable to me". The complainant states that in 1994 she failed an assignment because of a "no extension" policy by a lecturer, but she believed that other students were able to negotiate an extension or a re-submission. She said she believed that her inability to negotiate such a re-submission was because of her behaviour which related to her disability. The complainant withdrew from this topic. The complainant said that in 1995 she was unable to negotiate "quite reasonable adjustments" and failed this subject because of the length of time it took to negotiate the adjustments.
The complainant also referred to the Teaching Practicum requirement of her degree. At the time the complainant made her complaint she was hoping to negotiate the Teaching Practicum on a part time basis, rather than the full time basis required by the University. The complainant said that she believed that the Dean of Education required "a specific diagnosis" in respect of her disability, but that she was not prepared to disclose this.
In her letter of 4 December 1995 the complainant provided further information relating to these complaints. In particular she states that she believes that the respondent had refused her request to undertake her Teaching Practicum on a part time rather than a full time basis because the University "has an obligation to the Registering Body". The complainant said she believed this obligation "is discriminatory because I think it is an employment based requirement, not an educational requirement, but it assumes that all teaching students will be teaching full-time, and will be unable to teach because they are unable to compete a full-time Teaching Practicum."
In a third letter of 10 July 1996 the complainant made other more detailed allegations relating to some aspects of her complaint. In particular this letter specifically detailed alleged incidents of discrimination involving named members of the respondent's staff. The complainant identified three specific instances in respect of which she alleged she had been discriminated against because of her disability. These related to work in Language/Arts II in semester 1, 1995; Teaching Practicum, semester 2, 1995; and Language/Arts II, semester 2, 1994.
Language/Arts II, Semester 1, 1995
The complainant gave evidence that on 17 March 1995 she had contacted her lecturer in this subject, Lyn Tonkin, in respect of the first assignment in that subject which was due on 7 April. She advised Ms Tonkin that she had a disability which involved problems of recall and concentration and that, accordingly, she would not be able to complete the assignment by the due date. She said that Ms Tonkin told her that she was unable to grant an extension and that she (the complainant) needed to discuss the matter with Ms Joelie Hancock, the course co-ordinator. The complainant saw Ms Hancock on 21 March and asked for a two week extension. She said Ms Hancock refused this giving as her reason that by the time she put in her paper other students would have already received their assignments back. In cross-examination the complainant said that Ms Hancock had told her that no extension was possible at all but agreed that Ms Hancock had said that she may consider an extension if medical evidence was provided.
The complainant said she subsequently made an appointment to see Melissa Madsen, the University's Disability Liaison Officer on 4 April. She said that Ms Madsen had requested her to obtain medical information for Ms Hancock and she subsequently did so but the extension was nevertheless refused. She said there were some other negotiations between Ms Madsen and Ms Hancock and then she was informed by Ms Hancock that as her assignment was still not submitted and the due date was past, if it were submitted it would incur a penalty. The complainant said she thought it was unreasonable to incur a penalty when she was trying to organise an extension and she then contacted the University's Equal Opportunity Officer, Ms Margaret Messenger, whom she met to discuss the issue. She said that Ms Messenger told her that in her view Ms Hancock had not been unreasonable and that the complainant should forget her disability and simply get on with her studies. The complainant said that she took this as a suggestion that she was regarded as expecting a favour because of her disability, which was not the case.
In her written complaint dated 10 July 1996 the complainant said that she met with Ms Messenger on 29 May 1995 in the company of Ms Madsen. She states in her written complaint that Ms Messenger told her that Ms Hancock's offer to extend the due date of the second assignment to 26 May 1995 [there may have been a confusion of dates here as the extension was to 26 June] was perfectly reasonable because Ms Hancock was "going away", and there was some further discussion about the due date of the subsequent assignment on the basis of the extension which she had been given. She said that Ms Messenger made suggestions to her as to how she should arrange her study and course requirements and seemed unable to understand the difficulties which the complainant had in relation to this because of her disability. She said that Ms Messenger told her to "try harder" to meet due dates and that she "shouldn't complain". The complainant states in her written statement that she left the meeting "highly stressed, unwell and disorientated", and was unable to find her way around the University campus. The complainant gave no other evidence of the extension which had been arranged between Ms Madsen and Ms Hancock for the submission of the assignment.
The complainant said that she did submit the first assignment and it was marked subject to a penalty and she received a fail grade, albeit not a specific mark. She had submitted that assignment on 8 May: it had originally been due on 7 April and she had obtained an extension until 26 April.
Because of her concern about the penalty, subject to which her paper had been marked, the complainant said her attention then turned to having the penalty mark removed. She said eventually the penalty was removed but she was advised that the paper still failed and so she then sought to have a re-mark of the paper, which occurred, but she still received a fail mark. The complainant said she was then denied what she understood was "a regular right of a student on failure", to re-submit the paper. The complainant said Language/Arts II had assessment requirements of three assignments and an examination and this was the first assignment. She said because of the difficulties which led to her late submission and subsequent failure she was unable to do the other two assignments and then did not sit the exam. Accordingly, she failed the course.
The complainant said that she believed that she provided some medical advice to Ms Hancock on 10 April 1995 by way of a medical certificate. She subsequently provided a brief letter dated 4 May 1995 from her doctor at Allcare Medical Centre which referred to her disability and indicated that as a consequence of her disability and treatment "she is unable to perform tasks consistently and at an optimum level. Concentration, memory and attendance are likely to be unpredictable at best." She said that she had told Ms Tonkin of her disability at her initial meeting on 17 March and it had taken 11 weeks to obtain the extension. The further arrangements to get the penalty lifted and get a re-mark of her assignment were all extremely exhausting, time consuming and difficult.
In cross-examination the complainant said she had experienced delays in obtaining specialist medical advice leading to the delay in providing the medical information requested by Ms Hancock. She agreed that in fact the first relevant medical advice provided as a result of that request was the letter dated 4 May 1995 which was received by the respondent on 8 May 1995. She agreed that she had provided this medical information at the same time as she submitted her assignment.
The complainant said that without an opportunity to re-submit the first assignment which she failed even after the re-marking, she considered that she could not successfully attempt the second and third assignment, as each assignment built on the first. She said she believed that the right to re-submit was an automatic right. In any event she said that the amount of time and energy she had to put into make the other arrangements in respect of the penalty and the re-mark made it impossible for her to attempt the further necessary work. The complainant said her psychologist, Mr Litt, had written to the University Counsellor on 4 May giving information on her psychological condition. In this letter Mr Litt suggests her assessment ought to be re-weighted with 30% for each of the three essays and 10% for the exam. He also requested that the complainant "be granted maximum extensions as this would decrease her stress level drastically and hence enhance her performance." Melissa Madsen, on behalf of the complainant, proposed this to Ms Hancock on 8 May and recommended that "these alternative assessment arrangements are designed to minimise the disadvantage that the complainant experiences as a result of her disability". An extension of her first assignment was negotiated and an extension of the second assignment was arranged: the due date was 26 May and an extension to 26 June was offered. Ms Hancock advised the complainant in a letter of 9 June that this was the maximum extension that could be offered as she was leaving for interstate on 28 June. The complainant said this was not satisfactory as it was not a "maximum extension".
In any event the complainant said that by June she was extremely unwell and was hospitalised from 25 June to 30 June. On 14 June 1995 her treating doctor, Dr Rozenbilds advised the university that the complainant was unwell and was unable to complete her assignments. The complainant said that, in any event, the arrangement of extensions was quite unsatisfactory. After she had failed the first assignment she asked for an extension on the second and this was granted to 26 June. However, the examination was scheduled for 25 June and as the re-marking of her first assignment was not completed, the due date for the second assignment was too soon. The complainant agreed that the third assignment was in lieu of sitting the full exam: she agreed other students had two assignments and an examination, but arrangements had been made for her to have an additional piece of written assessment and a much less weighted examination, as proposed by Mr Litt. However, the complainant said it took the whole semester to get these arrangements and by then her energy and mental state had deteriorated and she was unable to address the issue.
The complainant disagreed that there had been a prompt response to her requests: she emphasised that it had taken 11 weeks to make the arrangements for her to have a single extension and the difficulties of the constant negotiations in which she had to engage caused her to become ill, exacerbating her disability. She agreed that she had only ever handed up the first assignment and did not sit the exam or submit any other written work.
There was considerable documentary evidence relating to the complainant's requests for extensions and re-marks. These include a letter to Professor Faith Trent of 8 June 1995 in which the complainant sought the removal of the 20% penalty imposed on her assignment, and a request for a re-mark. In this letter the complainant states that she was unable to submit her assignment due to an illness for which she had a certificate, and that she had been unable to contact the lecturer Lyn Tonkin because Ms Tonkin was interstate. A letter of 9 June 1995 to Ms Hancock documents the offer of an extension on the second assignment given by Ms Hancock to the complainant: this extension was recorded by the complainant as to 30 June. On 20 June 1995 the complainant applied for a supplementary assessment on medical or compassionate grounds and on 18 July she was advised by the secretary of the Examinations Board that her application for a supplementary assessment and extension of assignment deadline was approved, and she was requested to contact Ms Hancock to negotiate a deadline for her submission of outstanding work. The complainant agreed that she did not contact Ms Hancock in response to this advice until she was notified by the University in mid-September that she had been awarded a fail grade. The complainant said that she did not respond because at that time she was in hospital (she had been discharged from hospital on 30 June). She advised Ms Hancock in a letter dated 13 September that she had not responded to the earlier letter because she was convalescing from her illness.
In cross-examination the complainant agreed that the turnaround in correspondence relating to her applications for extensions had been fairly quick but she said that the whole process was too long. She said there would not have been a difficulty if it had all only taken a week or two, but "it took months". She believed that she should have been provided with an interim extension pending provision of medical evidence, and that she could not get the medical evidence earlier as "specialist medical evidence is not available overnight". She said she had not previously discussed the need for an extension with her specialist and, accordingly, she was not able immediately to get his support.
The complainant gave evidence that she was required to undertake the eight week Teaching Practicum on a full time basis as the final subject of her degree. She said that she advised the University that she was unable to do this on a full time basis because of her disability but was not permitted to do it on a part time basis as she requested. She said she believed this was discrimination on the basis of her disability, as she was seeking simply to have her disability accommodated. She was prepared to do the full amount of work as required but over a more extended period on a ".8" basis. This had been refused.
The complainant said that she approached Dr Gordon Baker, the lecturer in charge of the practical work, in about mid-year 1995. She told him she wanted to undertake the Practicum in first semester 1996 but was unable to do so because she had yet to pass Language/Arts II. She said that Dr Baker told her that she could not do the Practicum on a part time basis and that she would just have to "sink or swim". She said that after this discussion with Dr Baker she went back to Melissa Madsen and obtained further medical advice and letters and subsequently made an appointment with the Dean of the School of Education, Professor Trent and met with her on 9 November 1995 in the company of her legal advisor, Ms Helen Finch. She said the purpose of that meeting was to work out how the Practicum could be accomplished, taking into her account her disability. However, she said that Professor Trent's attitude indicated that she was of the view that the purpose was to persuade her to change courses and she did not agree to the accommodations sought.
The complainant said that no attempt was made by Professor Trent to accommodate her request. She said that Professor Trent spoke of the University's obligation to the registering body and the issue of "occupational suitability" which the complainant interpreted to imply that she was not suited to becoming a junior primary school teacher. She said Professor Trent said that the complainant would be a good role model in adult education and that perhaps she should move into this area of studies. She said Professor Trent referred to her academic record in a disparaging way and in particular referred to the fact that she had failed some courses and withdrawn from others. She said that Professor Trent noted that her main problems appeared to be with "curriculum subjects". The complainant said she attempted to explain to Professor Trent that the reason was that in those subjects it was most difficult for her to get accommodations for her disability. She said that Dr Baker had also spoken of "occupational suitability" to her.
The complainant said that Professor Trent also referred to the difficulties of a part time Practicum and that school based supervision for the Practicum was dependant on "the good will of the teachers". She also referred to the additional expense of providing the accommodations sought and suggested that the University's budget would not permit this. The complainant said that the thrust of Professor Trent's discussion at the meeting seemed essentially directed at persuading her to change courses, rather than considering the accommodations sought.
In her direct evidence the complainant did not refer to any accommodations granted to her in respect of the Practicum: however, in the course of questioning some of the respondent's witnesses she conceded that she had been advised that she would be permitted to undertake the work on a part time basis of four consecutive days per week, over 10 weeks. However, she subsequently submitted that this was an unsatisfactory accommodation which would not address her needs.
The complainant said that she had been unaware that the Practicum was only generally available on a full time basis. She was referred to the curriculum materials relating to the Practicum which indicate that the Practicum requires "a 37 day full-time placement". The complainant said that she had not interpreted this as requiring a continuous placement and she said it had not occurred to her that she could not spread it over a longer period. She agreed that other curriculum material refers to "the eight week block" (in referring to the school based work), but said she had not appreciated that this suggested eight weeks full time practical teaching. She said she now thought these expressions in the curriculum materials were ambiguous but had not thought so at the time: she had appreciated the requirement at the time she enrolled but had not focussed on it then.
The complainant said that she believed that the refusal to provide her with accommodations in respect of the Teaching Practicum constituted discrimination and indeed she said she believed that the requirement for full time teaching was simply a requirement of the teacher registration body rather than one relating to the course or the University.
Language/Arts II Semester II 1994
The complainant also gave evidence of her attempt at this subject in second semester 1994. She withdrew from the subject and her academic record indicates "withdraw not fail". The complainant said that she withdrew from the subject because discrimination against her by the lecturer, Ms Fox, effectively forced her to do so.
The complainant said that, from the outset, Ms Fox made it clear that she had a "no extension" policy. The complainant said she submitted her first assignment in the subject (called the "Big Book") and she had received a fail grade. She said she accepted this but she had not been told she could re-submit the assignment. She agreed that at this time Ms Fox was unaware of her disability.
The complainant gave evidence of an episode which occurred in about week three of the subject. In her written statement of 10 July the complainant states that in week three there was to be a whole class presentation of a verse story, "Sail away". She said Ms Fox had indicated that each student had to memorise certain aspects of the poem and the complainant said she knew she would not be able to do so because of her disability. However, she had not expected this to be a problem as she thought she would be able to use the book as a prompt. However, this was not permitted and Ms Fox refused to proceed with the class until she conformed with the requirement to recite from memory. The complainant said that she explained at the time to Ms Fox and the class that she was unable to do this and said she would explain her reasons to Ms Fox in private. However, she said that Ms Fox effectively required her to leave the class and did not then permit her to return, and so she withdrew from the subject.
The complainant said that she met with Ms Fox after the class and explained her circumstances. Ms Fox suggested that she withdrew from the course and she did so.
In cross-examination the complainant agreed that Ms Fox was probably unaware of her disability at the time she refused to perform the poem in class but she said that she had made it clear that she was unable to do so and had said that she would explain in private her reasons for this. The complainant also said she felt Ms Fox had made unreasonable demands on her in front of the class. She said that as she had failed the assignment she knew that she would fail the subject and accordingly she withdrew so that she would be granted a "withdraw not fail" by the University and would not incur HECS fees. Further, the complainant said that Ms Fox would not allow her to return to the class.
In cross-examination the complainant agreed that she had received accommodations in respect of another subject which she was undertaking at the same time in second semester 1995, namely, Power and Decision Making. She agreed that she had not responded to the accommodation proposed by the respondent in respect of this subject although she agreed that appropriate accommodations had been proposed. She told the inquiry she thought this was "the least" the respondent could do under the circumstances. She said that her concerns about Power and Decision Making had been "put on the backburner" because of her other concerns.
She also agreed that the respondent had advised her that it would make accommodations for her in respect of assignments and supplementary exams and this had been notified to her in letters from the University on 18 July and 8 September. She had not attended to the contacts requested in the letter of 18 July because she was fairly recently out of hospital and she found it difficult to deal in "time frames". Further she said she was still concerned about the first assignment and was trying to sort out the re-marking of that paper. She also agreed that accommodations had been offered by the University in respect of identifying Language/Arts II on her academic record as "incomplete not fail" rather than a fail. However, she said she was concerned about going back and further working in this subject because she did not want to work any further with Ms Hancock and she felt that she had been left "in limbo". She said that she did not regard the "incomplete not fail" result, rather than a "fail" result, as preferable, because the lack of completion was not a result of her not completing the work herself but rather a result of not being permitted to do the work with the appropriate accommodations for her disabilities. She agreed that she had made no further contacts about Power and Decision Making, although she also agreed the University had offered to note this on her academic record as "withdraw not fail" rather than "fail".
The complainant also gave evidence about the nature of her disability. She told the inquiry she would prefer not to reveal any "diagnoses" of her disability as she believed that stigmas are easily associated with making such "diagnoses". However, she described the symptoms of her disability: she said she had problems with her memory and that any information needing to be absorbed and given back in class or elsewhere is very difficult so she frequently appears inattentive; she said she has problems keeping track of continuity and what was going on, and that she had a poor concept of time which made it difficult for her to benefit from classes; she said that when she became stressed her capacity to function deteriorated; she said that to write an assignment she needed to separate research and writing; and she said there were periods when she became "extremely unwell" and she had been hospitalised several times. She said because of her disability she tended to become very disorientated around the University campus, both in time and space. She said she generally had to work from extensive notes because of difficulties with her short term memory.
The complainant provided a letter from Dr Christensen, her general practitioner, dated 4 May 1995. Dr Christensen referred the complainant to Dr Rozenbilds, a psychiatrist, who provided a report to the inquiry. The complainant said she still consults Dr Rozenbilds fortnightly or monthly and commenced seeing her in July 1994.
The complainant agreed that it was reasonable for the respondent to be satisfied concerning the medical condition of a student before making a significant alteration to a course requirement. However, she said that she believed that seeking a two week extension for an assignment was not a "significant alteration": she said it was not an alteration that was so significant as to require medical information more than a medical certificate which she had already provided.
3.1.2 Helen Finch
Sworn evidence was given at the inquiry by Ms Helen Finch.
Ms Finch said that she was present at the meeting between the complainant and Professor Faith Trent on 9 November 1995. She said she had arranged the meeting with Professor Trent at the complainant's request to arrange a part time Teaching Practicum and to address the issue of the complainant's possible preclusion from various courses. The complainant said that her role at the meeting was to be an advocate for the complainant, to negotiate the best possible outcome for her. Ms Finch is the Secretary for Disability Action, and it was in that role that she had been contacted by the complainant. She said that at the time she met with the complainant she had been unaware that the complainant had already made a complaint to this Commission and the complainant did not raise it in the meeting with Professor Trent. Ms Finch expressed some surprise that she had not been told by the complainant that a formal complaint had already been made.
Ms Finch said when she had contacted Professor Trent to arrange an appointment she had responded immediately and made appropriate arrangements. The meeting with Professor Trent was lengthy, amicable and helpful, but "a bit at cross purposes": Ms Finch said Professor Trent appeared to want one outcome while the complainant wanted another.
Ms Finch said that at the meeting the complainant was concentrating on what accommodation could be provided to her in respect of both the subject she had failed and the Teaching Practicum. She said that Professor Trent on the other hand was strongly encouraging the complainant to consider another field of study and suggested various options. She said that Professor Trent appeared to believe that the complainant might not be well suited to teaching and "offered generous concessions" in respect of making arrangements to transfer to another course. There was some discussion about the complainant's intended use of the degree and the complainant indicated to Professor Trent that she wished to work on a part time basis with children but did not intend to go into full time teaching, remarking to Professor Trent that children were "at no risk" from her: Ms Finch said that Professor Trent replied that if there had been any suggestion of risk no Practicum would have been offered at all and the question of children being at risk was not an issue. However, Ms Finch said that Professor Trent strongly expressed the opinion that working in a school might not be appropriate for the complainant, suggesting rather that the complainant could be a role model perhaps in the area of adult education. Ms Finch said that she "got the definite impression" that Professor Trent believed that the complainant was "studying for therapeutic purposes" rather than for employment. However, in cross-examination Ms Finch conceded that Professor Trent had not said that, but rather that it was "an implication". Ms Finch said that "everyone was treading very carefully as one does when dealing with someone with a psychiatric disability".
Ms Finch said that the issue of "occupational suitability" was widely discussed at the meeting and that Professor Trent had emphasised that the purpose of the University is to prepare students for full time work in schools and that a teacher not only has duties within a class room but also in the staff room and the wider school environment, and these responsibilities also had to be considered. She said it was this that Professor Trent was emphasising in explaining why the Teaching Practicum was required to be on a full time basis. The complainant had explained to Professor Trent that her disability made it impossible for her to be at a school on a full time basis and it was in response to this that Professor Trent had very strongly expressed the view that the complainant should perhaps consider another course of studies. However, the complainant had emphasised that she wanted to complete her teaching qualifications. Ms Finch said that there was some discussion about the Teachers Registration Board and its requirements and Professor Trent had said that there had never been a part time Teaching Practicum and it was only a full time Teaching Practicum which could fulfil the requirements of the Board. Ms Finch said that Professor Trent did not differentiate the academic requirements from the later registration requirements, and said she tried to explain to Professor Trent that academic requirements and occupational registration were separate things, but that Professor Trent appeared to see them as "all one parcel". Ms Finch said she was left with the impression that it was because of the requirements of the Teachers Registration Board that the Practicum must be full time.
Ms Finch said that Professor Trent made some reference to the University budget being "tight", but did not say the University "couldn't afford" to make such arrangements.
3.1.3 Helen Turner
Ms Helen Turner gave affirmed evidence by conference telephone. She was a fellow student of the complainant's in Language/Arts II in 1995 and gave evidence about the requirements of the course.
Ms Turner said that in the first three or four weeks of class there was general discussion and in particular discussion concerning assessment. She said there were three aspects of assessment: two written assignments and an examination. She said the examination was a "pre prepare" exam, and said each assignment "led on from the one prior".
Ms Turner said that it was evident in the tutorial groups that Ms Tonkin did not like the complainant and there was at least one occasion when Ms Tonkin was "very rude to (the complainant)". Ms Turner said she could not remember what was said or why but she remembered the "consternation of the class". She said Ms Tonkin was frequently sarcastic to the complainant in front of the class, although she agreed that Ms Tonkin was sarcastic to other students as well. Apart from the one occasion when Ms Tonkin was very rude she thought the complainant was treated much the same as other students. Ms Turner said that "most of the people" in the class had experienced Ms Tonkin's sarcasm and she described it as sometimes "totally uncalled for, totally out of line, bordering on rudeness".
Ms Turner said that from the outset there had been some confusion about assessment and in particular the percentages for each assignment. She said that she understood that extensions for written work were always granted if a doctor's certificate was provided. She said the only time she had not obtained a extension for work was from Mem Fox who, she said, made it clear that she would not give extensions under any circumstances because she was going away.
Ms Turner said that she was aware that the complainant's assignment in Language/Arts II had been late and she understood this was because the complainant had been in hospital. She said she had not much contact with the complainant and did not know that any penalty had been imposed on the marking of the assignment. However, she remembered that when the complainant got her assignment back she appeared to be very stressed and upset and wanted to discuss her assignment with Ms Turner. Ms Turner said she went through the assignment with the complainant and discussed it at some length with her. She said she had passed her own assignment and she encouraged the complainant to get her assignment re-marked because "it seemed okay".
Ms Turner said that the second assignment "followed on" from the first assignment but the second assignment did not involve the same information and it was possible to do the second assignment even without the first. However, she said if the first assignment had not been completed or passed she thought it would be more difficult to successfully complete the second assignment.
Ms Turner said that she had completed a Teaching Practicum on a full time basis. She said she had almost finished her Practicum when two new students arrived to start the course. However, she said these two students were not Flinders University students but were exchange students from the United States.
3.1.4 Sasha Sewell
Mr Sewell gave evidence on affirmation as witness for the complainant.
He said that he had been contacted by the complainant in about mid 1995 regarding her concerns about getting an extension for written work and a re-mark for a failed assignment. He said that at that time he was President of the Flinders University Union Inc which provides services and facilities to the students on campus. He said he had general contact with students who had academic or other concerns but he said that the issue with which the complainant approached him would probably have been more appropriately dealt with by the Student Association.
Mr Sewell said that he understood that the complainant had a psychiatric disability and said that he believed that her initial difficulty had been with a particular assignment given by a guest lecturer. He said that he understood that the complainant had initially been trying to negotiate an extension but was unsuccessful at this so went along with the original assessment scheme. Nevertheless she had explained to him that she felt discriminated against because of her disability and because of the uncontactability of the lecturer involved in the course. He said that he had very little memory of the specific concerns raised with him by the complainant and on inspecting various documents which had been provided at the inquiry said he could not remember any of them specifically. He said that at that time he was a member of the University Council and he had spoken to Professor Trent on a number of occasions on various issues, but did not remember discussing the complainant's case with her. He said that he had not known that the complainant's assignment had been re-marked and failed again.
Mr Sewell that there was an established University policy relating to student grievances including the process for appeals and academic complaints. He said that essentially the first step in such a process was to approach the head of the Department. He said he could recall contacting Melissa Madsen, the Disability Liaison Officer, concerning the assignment, but had no memory of any specific response.
3.1.5 Mr Alexander Litt
Mr Litt gave evidence on affirmation. He is a psychologist in private practice and has been treating the complainant for about 3 years. She sees him weekly or fortnightly as necessary.
Mr Litt said that the complainant has a diagnosed mental illness which is treated by both psychiatric and psychological intervention. She occasionally requires medication. He said the complainant is never free of her symptoms although sometimes she is less affected by them, and her symptoms can be affected by the variations in her circumstances. He said there are periods when some forms of treatment are more effective than others. He said that the complainant's prognosis is quite good, and that he would expect that she would be "cured" (at least 95%) within 2 to 5 years, and would expect her "to do very well" once her treatment was successfully completed. He described her as "in the middle range of treatment".
Mr Litt described the complainant's symptoms as "wide ranging and numerous": he referred to a "control" issue as central whereby the complainant needed to be in control; memory loss; anxiety leading to severe insomnia; and hypermania or "racing thoughts". Mr Litt said that all these things affect the complainant's ability to study and would have a significant impact on conducting a full time Teaching Practicum.
Mr Litt referred to a letter of 16 August 1995 in which suggested what he believed were appropriate "guidelines" for the complainant to undertake the Teaching Practicum. He said he had been asked to write this letter by Ms Melissa Madsen. He recommended that the complainant have certain matters taken into account in conducting the Practicum. The first was that she conduct this on a part time basis of "2 on, 1 off, 2 on" days work; further that she be placed at a school near her home, because travel is stressful for her and control is a significant issue; and that she be advised what work was likely to be planned for her in advance in order to reduce stress. In the letter he pointed out other personal factors, in particular relating to control and memory loss, which he indicated were relevant to be considered. He also suggested that it was necessary that the complainant have a break at lunch time with no mandatory requirement "to do yard duty or fraternize with staff . . . She requires personal time and space". He emphasised that the complainant would need a timetable and class and staff list, and he concluded the letter, "As long as [the complainant] works within these boundaries the placement will be a success". Mr Litt said that if the complainant did not receive these accommodations it was likely that all the symptoms of her disability would be exacerbated and it was unlikely that she would be able to perform with a high quality of work. Mr Litt said that from an intellectual point of view the complainant was quite capable of doing the work but that stress would affect the quality of her work. With respect to other academic work and in particular presenting written assignments Mr Litt said he believed that the complainant was quite capable of this work but he said that the most important thing for her was "the removal of time frames" within which she was required to have work completed.
3.1.6 Other evidence
The Commission also had before it a written report provided by the complainant's treating psychiatrist, Dr Ute Rozenbilds. I take this report into account. In her report Dr Rozenbilds, in particular, refers the Commission to Mr Litt as the complainant's primary therapist. Dr Rozenbilds first saw the complainant in 1994. Dr Rozenbilds said that her main focus has been monitoring the complainant's medication and her difficulties in handling stress and her desire to continue with her studies and to complete her teaching degree. She said that in the period since she has been treating the complainant there has been times when she "has become very stressed, has been agitated, forgetful, her concentration has been poor and she becomes very withdrawn and physically ill." She has been admitted to hospital with a diagnosis of major depression and there have been two occasions on which Dr Rozenbilds has provided her with medical certificates.
Dr Rozenbilds said that in June 1995 the complainant was unable to concentrate and became distressed, and in Dr Rozenbilds' view she was "thought disordered and unable to cope with her internal world, let alone prepare for her assignments and focus on her exams." She presented with other significant symptoms in January 1996, consistent with hypermania. On both occasions she was treated with medication.
Dr Rozenbilds reports that in August 1995 the complainant had tried to negotiate her Teaching Practicum on a part time basis but this had been rejected. She states that in October the complainant had "managed to complete two full time periods of practical teaching but ran into difficulties when as part of her teaching she reported a case of child abuse to FACS". Dr Rozenbilds states that she understood that this created difficulties between her and her teacher and "in October - November [the complainant] became very concerned that she thought that she would never be able to teach because the system saw her as having a psychiatric problem."
Dr Rozenbilds concludes by saying that she considered that the complainant experienced "increasing levels of stress... due to the demands of time constraints within her course and especially when she was trying to cope with mental/psychological distress". Dr Rozenbilds commented that she (Dr Rozenbilds) felt "staff had had difficulty coping with the fluctuating nature of her mental state and I suspect on occasions this has led to a degree of rigidity and expectation that no allowances should be made for her mental state." Dr Rozenbilds' further comments that "at least from [the complainant's] point of view", perhaps, "staff have also taken the position that [the complainant] should not become a teacher because of her psychological illness although there has been nothing to suggest that her illness would interfere with her teaching ability."
3.2 The respondent's evidence
Evidence was presented at the inquiry for the respondent by seven witnesses, members of its academic and administrative staff.
3.2.1 Melissa Madsen
Ms Madsen gave affirmed evidence at the inquiry. She is the Disability Liaison Officer of the Respondent and has held that position since January 1994. She gave details of her extensive experience with people with disabilities. She said that she was appointed as part of the University's disability action plan to implement the University's policy relating to persons with disabilities. She said the University had a disability resource centre which covered a broad range of activities. The disability action plan dealt with, among other things, the issue of reasonable accommodation for students with disabilities relating to assessment. Part of her role was to oversee courses and their requirements and to consider them in a context of students with disabilities but further to support students in any process of negotiation to meet individual needs. Guidelines set out various suggestions for reasonable adjustments and she said there was a summary of these guidelines on the back of all application forms. The detailed guidelines are provided to staff or students on request.
Ms Madsen said that information and training relating to the University's disability policy (Policy on Students with Disabilities) is provided to all staff on their induction at the commencement of their employment. This policy was approved by the University Council in 1993 and Ms Madsen's appointment was part of the implementation of that policy. Ms Madsen said that staff induction involved a half to full day training session. The University's policy has been incorporated in a document entitled "Uniability", discussion of which was part of the induction program. This was distributed to all existing staff at about the end of 1993 by the University's Equal Opportunity Unit. The guidelines for adjustments for students with disabilities were finalised in about October - November 1995 and until that finalisation the main guiding principle for making such an arrangements was that set out in the action plan: that a student should negotiate directly with staff for any adjustment which the student considered appropriate, but could have the support from the Health Support Services (including Ms Madsen's office) in order to successfully engage in this negotiation. Ms Madsen said that the University's general policies also contained guidelines for dealing with students with disabilities.
Ms Madsen said that she had a function within the University in respect of educating staff but she regarded this as secondary to that of supporting students. The staff education program with which she was involved concerned a half day training program for equal opportunity training officers and as a contact point for academic staff. Her office issued information materials to staff as well as to students and this material generally went to the Faculty Registrars and Departmental Heads. She said that in 1995 and 1996 a broad information package for students with disabilities was made available at the beginning at the year to all Registrars and Departmental Heads and to all students who identified themselves at enrollment as having a disability. This provided information concerning services and support that was available to such students. Ms Madsen there were about 250 students in 1996, and 200 - 220 in 1995, who identified themselves at enrollment as having a disability. She said that from 1996 a newsletter was issued five times a year for students with disabilities and there was also a world wide web site.
Ms Madsen emphasised that the onus is on the student to identify him or herself as a student with a disability and to request appropriate adjustments. She said that was clearly set out in the guidelines, as was the fact that the onus was also on the student to attempt to negotiate any accommodations for assessment or other aspects of the course as early as possible after enrollment. She agreed with the complainant in cross-examination that a person with a psychiatric disability might find it significantly harder to disclose that disability to others, partly because it might not be immediately apparent, but further because the student might feel threatened by staff or other students by revealing that disability. Ms Madsen said that she respected the student's decision as to whether to reveal information, and the Health and Counselling Service was always an option for students with difficulties. The service operates on a strictly confidential basis, and does not disclose information other than at the request of the student.
Ms Madsen also said that the Health and Counselling Services can give assurances to staff that reasonable adjustments are appropriate in the case of a student with a disability. Ms Madsen said that if approached by a student with a disability for assistance she would discuss with the student adjustments the student thought necessary, but before she made any recommendation to staff she would need appropriate medical advice or documentation from the appropriate health professional supporting the student's need for the adjustments and the nature of the adjustments. However, she emphasised that the final decision as to whether adjustments are reasonable is an academic matter and is the responsibility of academic staff. She said that if she made a recommendation for adjustment she would only do so if she believed the adjustments proposed were reasonable, but the final decision was an academic one and had to be made in the context of academic needs. She said that she made representations on behalf of the complainant for adjustments to the complainant's assessment and she believed that they were proposals supported by documentation and involved reasonable adjustments, but she said that she did not believe the final decision ought to have been hers.
Ms Madsen said that the negotiations with respect to the complainant's situation seemed fairly lengthy and complex particularly compared with negotiations required by other students. She said these negotiations were more time consuming and extensive: however, she said that she believed the complainant's circumstances were unusual and her experience in respect to psychiatric disabilities was not as extensive as in respect of some other disabilities. She said there was a further negotiation because in the course of the negotiations the issues changed and became more complex. She said that at the outset of the discussion the complainant's request was a fairly clear cut one of adjustment with respect to assessment. the complainant obtained supporting documentation from her doctor and proposals were made to the complainant's lecturers. However, the negotiations became more complex because of the issues arising through the failure of the first assignment and the complainant's appeals with respect to that.
Ms Madsen had said that when students were enrolled there was a question on the enrollment form asking whether the student had any disability. The question is optional and the answer is kept confidential. This is clear on the enrollment form. A further question is whether the student wanted support from the Health and Support Services with respect to the disability. The onus is on the student to identify him or herself as a student with a disability and to seek support for that reason: this opportunity to identify is available in a significant number of the items of information provided to students at and after enrollment. Ms Madsen said that she did not disclose any details of the student's disability and generally staff did not request such information and would generally accept Ms Madsen's advice for appropriate accommodations.
3.2.2 Margaret Messenger
Ms Margaret Messenger, the head of the respondent's Equal Opportunity Unit, gave affirmed evidence at the inquiry. She said that she had been in this position since October 1986 and her role and responsibilities are to promote equal opportunity and affirmative action within the University, and to ensure that University policies and procedures accord with the legislative requirements of the Commonwealth and the State in this area. She said that the Disability Liaison Office (Ms Madsen's office) does similar work, except that it deals mostly with students, whereas Ms Messenger's deals more extensively with members of staff. She said that she had extensive training in respect of equal opportunity, including professional development courses, conferences, and a long association with equal opportunity work.
Ms Messenger said that training was provided to staff with respect to equal opportunity issues and in particular with respect to students with disabilities. She said that all staff were provided with copies of the University's relevant documents and Ms Messenger conducted a segment on equal opportunity in the induction program provided to all staff. Ms Messenger said that a topic assessment form provided by her office also reminds all staff of the requirement to make provision for students with disabilities and is also provided to students, giving them the opportunity to approach staff to seek accommodations in relation to disabilities.
Ms Messenger said that she had one meeting with the complainant in Ms Madsen's office on 29 May 1995. She said this meeting had been arranged by Ms Madsen and she had not been specifically aware of what the meeting was about. She said that she remembered that the complainant was distressed and advised that she had a disability, but did not disclose the nature of that disability, other than in very general terms of an inability to concentrate well and difficulties with memory. The complainant had said that she was unhappy with arrangements made with respect to her assessment and that the deadlines that had been set down were unreasonable. Ms Messenger said that she understood that there had been three adjustments made to the assessment scheme: an examination had been converted to an essay; each assignment had extended deadlines; and the complainant had obtained further extensions for each deadline for each assignment. She said that the complainant made no complaint about discrimination at this meeting and on the face of the information provided Ms Messenger considered the accommodations seemed reasonable. Ms Messenger said that she did not know if the accommodations provided addressed the complainant's disability because she had very little information about the disability. With the limited information she had, she responded with the opinion that the adjustments looked reasonable but she said she did not respond to any complaint because none was made. She said it was never made clear to her why she was involved in the meeting. Ms Messenger said it was not her function to negotiate accommodations for students with disabilities: this was specifically Ms Madsen's role. Nor was she asked to do anything further after the meeting was completed.
Ms Messenger specifically denied the allegations made by the complainant as to comments made at the meeting. She denied that she ever said or suggested that the complainant was using her disability as an excuse, or for obtaining special favours. She was emphatic that she would never make such a suggestion. She also denied that she suggested that the complainant should not bother to pursue accommodations if this became "too stressful and time consuming", and she said that she was unable to comment on whether the complainant needed the extensions to comply with the course requirements because she was unaware of the nature of the complainant's disability, although she accepted the complainant had a disability. She also denied that she said that the complainant had "got what she asked for" and "shouldn't complain". Ms Messenger agreed that she quite possibly did suggest to the complainant that she should set up some form of time management plan to attempt to meet the requirements of the course taking into account the accommodations.
Ms Messenger said that she could not precisely remember the details of the meeting: she said it was a single meeting and there was no follow up. However, she did remember that the complainant was distressed and although she could not remember precisely what her responses were she said that she did know what she would say on a professional basis. She said that although all responses are specific to the requirement of the particular student, responses relating to policy and legislation are quite consistent and she believed that she would have given such consistent responses.
3.2.3 Lynette Tonkin
Lynette Tonkin gave sworn evidence. She is a lecturer at the University of South Australia and in semester one 1995 lectured in Language/Arts II at Flinders University.
Ms Tonkin said that the complainant was in this class. She said that the assessment for the subject was comprised of two written assignments, the first of which was due on April 7, and an examination in the semester break. She said she did not recall the complainant ever approaching her to advise of a disability but if she had done so she would have referred the complainant to Ms Hancock if she were seeking an extension.
Ms Tonkin said that there were no difficulties with the complainant before the April 7 submission date but the assignment was not submitted on that date. Ms Tonkin said that at the end of week seven after the mid-semester break she spoke to the complainant and asked where her assignment was. The complainant said she had not done the assignment but did not offer any explanation, and asked her what would happen if she offered up the assignment late. Ms Tonkin said that she replied that generally a late assignment where there had been no extension would not be marked, but she did not refuse to mark a late assignment. She said she did not receive any medical certificate, and there was no discussion for any medical basis for the late submission. She said that the complainant did hand in the assignment on 8 May to Ms Hancock and Ms Tonkin marked it. She said the assignment failed and there was an additional penalty for its lateness.
Ms Tonkin said she subsequently spoke to the complainant about the failure of the assignment, at the end of a class sitting on a bench outside the classroom. She said she went through the paper and explained to the complainant where the assignment was deficient and that the main problem related to the style and the addressing of issues, and the answering of the specific question, rather than of the substantive material. In her evidence the complainant had initially agreed that she remembered Ms Tonkin going through the assignment one day after class, but later denied this.
Ms Tonkin said that the two required assignments were separate. Assignment one was concerned with the characteristics of reading, and assignment two was concerned with the report of a reader and tasks with working with a child. There was no particular link between the two assignments other than the general one of course structure, and if a student failed the first assignment they could get on with the second assignment.
Ms Tonkin said that the normal procedure for seeking an extension of time for an assignment was that a student would be referred to subject coordinator. Ms Hancock was the subject coordinator. Ms Tonkin said it was important that the consultation and decision be made by the subject coordinator in order to be fair to all students, rather than extensions be granted on an ad hoc basis by different lecturers. However, she said that the complainant never approached her seeking an extension although, if she had, she would have referred her to Ms Hancock.
Ms Tonkin said that she had not known that the complainant had a disability until Ms Hancock advised her of this after she had been contacted by the Disability Liaison Officer. She said she thought that this was sometime between the due date of the assignment and the actual submission of the assignment but she believed that she did not know this at the time that she spoke to the complainant about her non-submission. She said she could not recall any discussion with Ms Hancock about the complainant's attendance in class and nor could she remember the complainant say anything about any difficulties she had with her memory or that she was unable to answer questions in class. She said she never saw any information about the complainant's disability. She also denied the complainant's allegation that she had said that she would lose any appeal or that she (Ms Tonkin) "knew her rights". She said that she did not remember ever saying that, notwithstanding her disability, the complainant would be "treated equally": she said that she did not know that the complainant had a disability, but her view was that each student would be treated equally taking into account any relevant differences.
Ms Tonkin said that she had an answering machine in her office at the University of South Australia and also had a secretary. She said her home phone number was made available to students and a message could be left at her home. She said she would not know if the complainant had made any attempt to contact her if no message was left: Ms Tonkin said a message could also be left for her by voicemail, by her secretary, by letter, by leaving a message at home, or through Ms Hancock. She said no message was left by the complainant through any of these means.
Ms Tonkin said that she had undergone training for dealing with students with disabilities: this was through workshops the University arranged and by general discussion with colleagues. She said she understood that training was provided by the respondent with respect to its equal opportunity policies: she said she had not undertaken any such training at Flinders University in 1995 because she had worked there before, and had liaised with staff at Flinders University over a lengthy period of time. She said that she also had been employed at the University of South Australia for some years and she said it was no doubt assumed that she had such relevant training there. She said that she had received such training at the University of South Australia and she had a copy of the University's Uniability document in her office and had read it.
3.2.4 Joelie Hancock
Ms Hancock is a senior lecturer employed by the respondent over a period of twenty years. She gave sworn evidence. Ms Hancock told the inquiry that she had taught Language/Arts for more than twenty years.
Ms Hancock said her first dealing with the complainant was early in semester 1, on 21 March 1995. She was unaware whether the complainant had been sent to her by Ms Tonkin: she said that may have occurred as it was appropriate for her to deal with applications for extension. Ms Hancock said that the complainant told her that she had a disability and had asked for some special considerations with respect to the date for the assignment. Ms Hancock told her that some medical evidence would be required to assist her in making a decision about an extension. Ms Hancock said that the complainant was not happy about this. Ms Hancock said she was open to providing accommodations for students for all sorts of reasons, but extensions will not be granted simply because they are requested. Ms Hancock said that she needed to make a professional assessment of the complainant's need for an extension and believed that some medical or health supporter's advice was appropriate. She said she did not need specific information about the complainant's disability but general information. She said that the complainant did not make any specific request for accommodation at that time but a general one. Ms Hancock denied that she told the complainant that that extension was not negotiable because this was not true, and she denied that she told the complainant that she would not get an extension. Ms Hancock said that the complainant did not provide her with the necessary information at the meeting on 21 March.
Ms Hancock said she first received some further information from the complainant after the first assignment was due. The complainant had not submitted that assignment but she subsequently received a message from Mr Sewell who asked if the complainant's assignment would be marked if submitted late with a medical certificate. Ms Hancock said that she replied "yes". Ms Hancock said she subsequently received a letter from the complainant's general practitioner. She did not know whether the complainant's assignment and the medical certificate came in together. The complainant's assignment was submitted on 8 May 1995. It had been due on 7 April, and no extension had been granted because no medical information had been provided by the complainant until 8 May.
Ms Hancock says that on the same day, 8 May, she received a request from Melissa Madsen relating to possible accommodations for the complainant, in particular the splitting of assignments and re-weighting of work. Ms Hancock said she had a telephone discussion with Ms Madsen on the following day and on 10 May 1995 she sent a memo to Ms Madsen agreeing to the request. She said she thought she could hardly have acted more quickly.
Ms Hancock said that the complainant's assignment failed. She said it would not have passed even if no penalty had been imposed. She said that on 18 May she agreed to new submission dates for assignment 2 and a new assignment which would cover part of the examination, and notified the complainant of these on the same day. She said no further assignment was submitted by the complainant and she had no further message, correspondence, visit or request from the complainant, either to discuss the assignment or to seek further accommodations.
Ms Hancock said that there was a re-submission policy in the University but it was not offered as a general rule. She said that the complainant had not approached her to request a re-submission, or to discuss the second assignment. Ms Hancock said that the second and subsequent assignments stood quite separately from assignment 1. She said that the complainant did not sit the exam.
Ms Hancock said that she had read the complainant's assignment after Ms Tonkin had marked it and given it a fail. She said that she and Ms Tonkin routinely conferred on borderline and fail papers and she had to confirm the validity of such a mark assigned by the primary examiner. She said that Professor Trent then requested that the paper be re-marked, and she had sent the paper to another lecturer, Lyn Wilkinson, as both she and Ms Tonkin had already formed a view about it. The assignment had been marked on its merits and then from the mark the penalty was deducted. She said it was quite usual and routine to confer on marks if there was any uncertainty or if it was a borderline or fail. She said that the paper was a clear fail even without the penalty.
Ms Hancock emphasised that the complainant had not sought to re-submit, and she was not offered a viva voce examination because that was not appropriate. She said this might have been an appropriate step if the student had not addressed the question but the contents showed an understanding of the material: under those circumstances an oral examination would give the student an opportunity to explain the ambiguity. Ms Hancock said that viva voce examination is very rarely used, and was not appropriate in this case.
Ms Hancock said that the second assignment was due on 26 May but an extension was granted to 26 June. The exam and the third assignment set for the complainant were for 21 June. Ms Hancock said she also made an agreement that the complainant could take two pages of notes into the exam instead of the usual one page. She said she understood from the complainant's letter of 9 June that a further extension was necessary and the complainant would contact her. She agreed that of course it was not reasonable for the complainant to contact her while she was in hospital, but Ms Hancock said she did not know this and so could not have taken it into account.
Ms Hancock said that she knew that the complainant had been advised by letter of 18 July that a supplementary exam had been granted to her and she expected to hear from her within the next few weeks. She was unaware that the complainant had been ill or that letters to her had been misdirected or gone astray. Because of this long lapse in communication Ms Hancock assumed there was no point in pursuing further negotiations with the complainant. She said that while she was aware of the complainant's disability she knew little detail and only really understood that there were problems with short term memory and concentration.
Ms Hancock believed that she had adequate training to deal with students with disabilities. She said she had a copy of the University's policy and the Uniability document. She said she understood that all reasonable accommodations are to be made for students with disabilities so they can reach the appropriate outcome of their studies without being disadvantaged by their disabilities. She said she had negotiated such accommodations for many students and she believed that reasonable accommodations had been offered to the complainant. She said she was limited in the arrangements she was immediately able to make for the complainant because the complainant was not specific about her disability and did not make any specific requests for accommodation. She said the first specific request she received was in the memo from Melissa Madsen dated 8 May and she had agreed to the accommodations proposed and communicated this to Ms Madsen by 10 May. Ms Hancock denied that she had said that students with disabilities "don't get through the course", "drop out", "don't make good teachers", or "can't teach". She said she believed that people with a wide variety of circumstances were needed as teachers to teach children.
Ms Hancock said that Ms Tonkin did not have a reputation for sarcasm and she had received no complaints from students concerning Ms Tonkin's behaviour. She said that reports concerning Ms Tonkin in student evaluations were positive and there was nothing in any student evaluation to suggest that any concerns about her manner were inappropriate.
3.2.5 Faith Trent
Professor Trent has been Dean of Education at Flinders University since July 1994. She said that since 1982 she has been actively involved in education, and she believed she was adequately trained to deal with students with disabilities. She said a long standing part of her academic and professional experience involved dealing with a large range of students with special needs. She has been the chair of three University disability committees working on the policy and wrote the first policy on students with disabilities at Flinders University. She said that the discipline of education involves dealing with people with special needs and there were students with disabilities in all courses at all levels in the School of Education.
Professor Trent said that all staff had the responsibility to be familiar with University policies including those relating to students with disabilities. She said that as Dean of Education she was responsible to ensure that her staff were aware of such policies and implementing them, and part of the function of staff was to be familiar with such policies and their implementation, and her staff were particularly sensitive to issues of diversity, discrimination and disability. Professor Trent gave some further evidence concerning her practical and theoretical knowledge and experience in relation to disability policies.
Professor Trent said she had two separate dealings with the complainant. One was with respect to the re-marking of her Language/Arts II assignment, and the second in respect of the Teaching Practicum.
Professor Trent said she received a letter from the complainant dated 8 June 1995 requesting that a penalty for late submission be removed from an assessment and that the paper be re-marked. Professor Trent said she sought advice from Ms Hancock and then made arrangements for the essay to be re-marked and had it passed to a second marker without reference to the penalty. The second marker assessed the paper, made comments, and advised that it failed because it did not address the relevant issues. Professor Trent said she advised the complainant that the essay had failed and subsequently advised by further letter as to the reasons which had been provided by the independent marker.
Professor Trent said her second dealing with the complainant related to the Teaching Practicum. She said that the first knowledge she had that there was any concern about this was a memo from Ms Madsen dated 25 August 1995 to Dr Baker, the coordinator, of the Teaching Practicums. Dr Baker had contacted Professor Trent concerning this memo which set out recommendations by Mr Litt as to the way in which the complainant ought be permitted to perform her Teaching Practicum. Dr Baker raised with Professor Trent his concern that the accommodations sought raised very fundamental issues about what accommodations could be consistent with the academic integrity of the course. Professor Trent said that she gave Dr Baker advice as to her view on these issues and said she had particular concerns about the first recommendation made by Mr Litt, that is, that the placement be on a part time basis of 2 days on, 1 day off and 2 days on, and the second, that the complainant have "the ability to take personal time and space at lunch breaks". Professor Trent said she understood that Dr Baker advised Ms Madsen that a part time Practicum was not appropriate. Professor Trent said she further understood that the complainant had not passed Language/Arts II which was a prerequisite to the Teaching Practicum but she said she understood that the complainant needed to have arrangements in place in case they were needed. Professor Trent had told Dr Baker she would discuss the matter with the complainant if necessary.
Professor Trent said that the only issue in granting the accommodations sought was whether a part time Practicum could damage the academic and professional integrity of the course. She said the Teaching Practicums, especially the final one, are essential to the degree. She said the final Teaching Practicum brings together all of the three years of study which the student has undertaken: it is an application of all the theoretical learning gone before and provides an opportunity to demonstrate in a real environment that the student has understood the knowledge which has been the subject of study. Professor Trent said that the complainant had successfully completed the first two Teaching Practicums. The first Practicum is done early in the degree and was part of introducing the student teacher to the sense of working in a school and to get some idea of the practical environment into which theoretical learning would need to be injected. The second year Practicum was built on curriculum areas studied by the student putting them into a practical environment. The student therefore undertook some teaching to demonstrate skills and to show an understanding of methodology. There was contact interaction with the class and the staff, but the student was not responsible for taking classes. Professor Trent described the third and final Teaching Practicum as involving a "quantum leap": its purpose was to simulate "real teaching" and it occurred when the rest of the core curriculum was completed and the student was in a position to apply all previous theoretical and practical studies and knowledge.
Professor Trent said that the final year Teaching Practicum was described in all University documentation as a full time Practicum, and the same principle applied throughout Australia. She said that nowhere in Australia is a final Teaching Practicum offered on a part time basis. She said that the continuing processes in a class room, school and community are an essential part of the Practicum. She said that if a student is performing the Practicum on a part time basis it might well be possible to assess that student can give lessons by looking at the content of classes, but it would not be possible to assess if the student is able to provide the process of education. She said that successful completion of the Practicum will indicate that the student can do all things that are part of the role and package of being a teacher. Professor Trent said that if a student attempted a Practicum on a part time basis, and in particular on the basis proposed by the complainant, it would not be possible to make any assessment of her ability to provide the process of education. She said that in particular if a student teacher was away each Wednesday, as proposed, it would be impossible for an assessor to tell whether an inability to follow through with students and classes resulted from the student's own lack of ability, or whether it resulted simply from the student not being there in the middle of the week.
Professor Trent said that she was unaware of the detail of the impact of the complainant's disability on her work. She said she was not concerned with the specific details of the complainant's disability, but rather of its impact in terms of her performance and her ability to meet the requirements of the course. She said she had asked for further details in order to make this assessment and had sought such permission before from other students. She said she recognised that there was a need for confidentiality and privacy but it was important for her to have appropriate information upon which to base her judgement.
Professor Trent said that she received a letter from Helen Finch requesting a meeting to discuss the complainant's possible preclusion from the course and the Teaching Practicum. In the end there was no necessity to discuss the issue of preclusion because a decision was made by the Academic Board that the complainant would not be precluded. The meeting with Ms Finch and the complainant was to give the complainant an opportunity to explain her situation. It was the first time she had met the complainant. It was also an opportunity to expand the issues and the point of view of the School of Education, and to explore the possibility of finding some common ground and make some way forward to overcome the complainant's difficulty. In particular Professor Trent said she was concerned to look at other options if the Practicum was not going to be possible for the complainant. She said she had no preconceived outcome at the beginning of the meeting.
Professor Trent said the meeting lasted "over a couple of hours" and was not focussed on any allegations of discrimination. She said the complainant complained about difficulties she had with the course, but not specifically in terms of discrimination. The complainant told her she had a disability and that this led to loss of concentration, poor memory, and difficulties in response to stress. Professor Trent said she told the complainant in response to this that such problems might lead to difficulties as a teacher because issues of memory and handling stress are very important for a teacher. The complainant had said that she did not intend to be a full time teacher but Professor Trent said this was not relevant, as the purpose of the course is to enable students to qualify for an academic degree pursuant to which they can hold themselves out as qualified to be teachers. What each individual graduate does is his or her own concern. She said she told the complainant this at the meeting.
Professor Trent said that she explained to the complainant that it was a compulsory requirement of the course that the Practicum be full time, however she denied that she refused the complainant's request for accommodations and indeed said that the arrangement made at the end of the meeting was that the complainant could undertake the Practicum on a part time basis, but she would be required to do it on four successive days rather than in the way she had initially proposed. Professor Trent said that on the balance, a full time Practicum was in the best interest of the student, but nevertheless because of the complainant's concern she agreed to arrange a four day week Practicum which would then extend over ten rather than eight weeks. She said she subsequently discussed this with the Teachers Registration Board and was advised that it would accept the accreditation of the degree under those circumstances.
Professor Trent said she that she did have some continuing concerns about a four day week Practicum. She said that the nature of education is a matter of process as much as of product and the Practicum emphasises the ability of students to follow through with school students on a daily basis to modify their ongoing learning, and to be part of the school and staff environment dealing with colleagues and parents. All of that may be negated unless the Practicum is on a continuous and full time basis. Professor Trent said that the middle of the week is important: Monday is a starting up time and Friday is a winding down time and the period in the middle of the week is probably the most important. She said this was very important particularly in considering education as part of an ongoing process. Under these circumstances Professor Trent said the four day Practicum was a very significant and important accommodation and modification. She said in her view it was not in the best interests either of the complainant as a student, or of the academic integrity of the course, and she knew of no other student to whom such a modification had been made, even for part time students with full time employment.
Professor Trent denied that she had made any suggestion at any time that the complainant posed any physical risk to students: she said that indeed she had emphasised precisely the opposite and said that this was clearly accepted: if the complainant had been regarded as posing any form of risk to students no Practicum would have been offered at all. This was not the case.
Professor Trent said that if the complainant had undertaken the four day week Practicum this would have to be spread over a ten week period. She said she did indicate to the complainant that this imposed other costs on the University, but she did this after she had agreed to the modification, and not to indicate to the complainant that the modification was not possible. She said that the University had to work on a tight budget, and to extend the Practicum would not only involve making other arrangements with the relevant school, but that University would have to hire additional staff, as the regular staff would be back at their normal teaching duties by that time. Further, the school would have to be paid more. She said that it was implicit in making the offer of the part time Practicum that the University would fund it, but she did indicate these issues to the complainant.
Professor Trent said that she also discussed other options that may be open to the complainant, and had raised these because if the accommodation did not work out or the Practicum was not done or was failed, she did not want the complainant to lose the benefit or credit of the work she had already done. Accordingly, she undertook to investigate other courses which the complainant might consider, and her aim in doing so was not to get the complainant out of the teaching course but rather to help her to achieve her goals in case it was not possible for her to achieve them in the particular area that she was then pursuing.
Professor Trent gave some further evidence of the purpose and importance in academic terms of the full time Teaching Practicum. She said that she believed the objective of the Practicum and the course could not be achieved by the complainant's requested accommodation. She said that the role of the University in determining the nature of courses and curriculum is to set up circumstances where it can be satisfied where a person who has completed a professional degree is capable of being registered should registration be sought. Professor Trent emphasised that there no sense in which she regarded the University as "gatekeepers for employment" and she said empathically that this was neither the role nor responsibility of the University. She said the purpose of the University is not employment: Universities have many purposes, one being that if it provides a professional degree the University must be able to hold out in respect of that professional degree that the graduate can perform consistently with that professional qualification. Professor Trent said that some students might regard a degree as a gateway to employment, but whether or not a student uses a degree to obtain employment was that person's choice, and not a concern of the University in conferring the degree. Professor Trent said the purpose of the final Practicum as was, as far as possible, to simulate the world of the full time teacher in a school, and to enable the student to be assessed as having the appropriate coverage of curriculum and skills. It was therefore necessary to foster the appropriate classroom culture as well as the culture of the broader life of the school. The object of the Practicum in this sense for the University as part of its degree is to provide a basis for an assessment of the student's ability and understanding of the work which had already been studied at a theoretical level. She emphasised that she and other professional educationalists regarded it as essential that the Practicum be done on a full time basis to enable the appropriate assessment.
Professor Trent said that she had not spoken to Mr Litt although she was aware that he had corresponded with Ms Madsen. She said that in her view Mr Litt did not have the appropriate or relevant qualifications to determine whether the complainant would be able to successfully achieve the purposes of the Teaching Practicum if she undertook it on the basis that he suggested. She said she believed that was a matter for her academic and professional judgement and was not likely to be a judgement which fell within Mr Litt's professional capacity, as he was not an educationalist. She said that in retrospect it may have been useful for her to have contacted Mr Litt but she was aware that this needed the complainant's permission and that permission was not sought or given.
Professor Trent said she believed appropriate accommodations had been offered to the complainant. She said that the accommodation proposed by Mr Litt was not an acceptable one as it was not consistent with the academic integrity of the course and the purpose of the Practicum itself. She said that it would not have been possible to assess the complainant's performance if she engaged in the Teaching Practicum in such a fragmented way. Professor Trent said that in her view the University's policies about students with disabilities only required accommodations which do not undermine the integrity of the course: she said she did not regard it consistent with those policies to give accommodations which would undermine the course. All students with or without disabilities must complete the inherent requirements of the course to get a degree, and Professor Trent said that while accommodations could address any student's disability, they could not do so in such a way to remove the inherent requirements of the course.
3.2.6 Gordon Baker
Dr Gordon Baker, lecturer and teaching experience coordinator, gave evidence on affirmation. He said he had worked for the respondent since July 1989 and was responsible for the academic oversight and administration for Teaching Practicums. In particular he said he engaged in the design of the course and the structure of topics, placement of students in schools, supervision in schools, budgetary matters and some counselling.
Dr Baker said he believed that he had been adequately and appropriately trained to deal with students with disabilities and he considered that he was aware of University policies and had familiarised himself with them. He considered it a responsibility on him to implement University policies in particular because he worked very closely with students in practical settings.
He said he was familiar with the University's Uniability book. He said that on numerous occasions he had arranged accommodations for students with disabilities in the Teaching Practicum: he said, however, this was essentially by way of providing additional academic support for them. He said it was difficult to alter the structure of the Teaching Practicum because it was necessary to maintain academic standards. Generally, providing additional support meant working more closely with the staff at the school, being available for more time in observing, providing more assistance and planning, and working through issues with the students. He said that he regarded his obligation as being to provide an opportunity to students for success, and often it is necessary to accommodate a student's particular disability "so that those disabilities do not get in the way of academic success". Dr Baker said that he was made aware that the complainant had a disability of a psychiatric nature although he did not know the details. He knew what accommodations she was seeking.
Dr Baker said he met with the complainant in August 1995, when she came to ask if she could undertake the final Teaching Practicum on a part time basis. He said he indicated to her that he had grave reservations about that but would work with her to look at any difficulties which might arise. However, he told her that doing the Practicum on a part time basis might jeopardise the academic integrity of the Practicum and under those circumstances it would not be possible. When Melissa Madsen subsequently contacted him he told her that the policy was that the Practicum had to be undertaken on a full time basis and that could not be changed.
On 25 August Dr Baker received a memo from Ms Madsen which set out the proposed accommodations that Mr Litt had suggested in respect of the complainant's Teaching Practicum. He said he discussed these proposals with Professor Trent and the course coordinator. He said of the specific proposals suggested by Mr Litt only two caused any difficulty: the others all represented part of the normal processes for setting up the Practicum. The two which caused difficulties were the first, which suggested a part time placement with two days on and one day off, and the second which was "the ability to take personal time and space at lunch breaks". Dr Baker said that he had advised that in his professional judgement it was not possible to undertake the Practicum on a part time basis because this would jeopardise the academic and integrity of the course, and this would also occur if the complainant were not committed to the classroom or school but was permitted to leave at any time for "personal time and space". Dr Baker agreed that he had expressed "grave concerns" about the proposal: he said that these related not to the complainant's disability but rather to offering the Practicum on a part time basis. His "grave concerns" were about maintaining academic standards.
Dr Baker said that the complainant was offered the opportunity to undertake the Practicum on a four successive day basis. He said as far as he knew no one else had ever been offered such accommodation and it was a very significant accommodation. Dr Baker expressed reservations about this arrangement and he still said he felt very uncomfortable about the proposal. He said, however, that he had been persuaded by Professor Trent that such compromise might be helpful for the complainant, and that the University was also prepared to provide the complainant with other additional support during her Practicum: he said that it was likely that the University would work more closely with teachers and the school principals, and be more often involved in the supervision process during the course of the complainant's Practicum in order to provide her with additional support as necessary.
Dr Baker said it was most important that the complainant undertake the Practicum on successive days rather than on the "two on, one off" as proposed by Mr Litt. He said that part of the purpose of the Practicum was to simulate real teaching and this could not be done on the basis proposed by Mr Litt. He said that this would be building an even greater interruption and disjointedness than four rather than five days. He said that further, the purpose of the Practicum was to provide some basis for assessment of the student's ability to sustain relationships, work with stress, and undertake continuing planning and class management, and every change moves further away from the reality of the classroom. He said that the Practicum required the students to be prepared to work within the confines of professional behaviour in the school, and reliability, punctuality and participation in the broad life of the school are extremely important, and are difficult to assess if the student is not at the school on a full time basis. Further, he said that he believed a student would be disadvantaged if the student missed out on some of these aspects of school life. Planning and teaching are the important aspects which were required to be assessed in the Practicum, and it is important that students had long term planning and teaching examples to support their work in the final Practicum. If the Practicum were broken it would be difficult for a learning program to be pursued in the school and this would disadvantage the student in terms of assessment. He said further that students needed to provide effective plans for development of lessons, and if the lessons were broken up because of the student's frequent absence from school this would be difficult. He said, in particular, having a Wednesday off would break into the prime learning time and to miss a Wednesday would involve major interference with the learning and teaching process. Ongoing evaluation and modification of further lessons would be very difficult. He thought there might also be issues relating to class management and stability and consistency within the school, as it is much more difficult on a part time basis consistently to apply management strategy and deal with inappropriate behaviour.
Dr Baker said that the issue of occupational suitability was significant. One of the purposes of his lectures and counselling is to provide an opportunity for students to judge if they want to be teachers. He said it was not his job to tell students that teaching was likely to be a suitable career, but it was his role to raise the question if it seemed relevant and appropriate. He said the complainant certainly had not been singled out by any reference to occupational suitability: this was raised in many cases by him to large numbers of students. In any event he said he could not recall ever having any discussion with the complainant in which he did raise the issue of occupational suitability.
Dr Baker said that the complainant had previously successfully completed two earlier Teaching Practicums in 1991 and 1993. He said that some concerns had been expressed in respect of her first Practicum but it was successful. There had been more difficulties in the second Practicum when she had to withdraw from the school and be placed in a different school outside the normal teaching times. In this Practicum she was supervised by Dr Baker and although there were some difficulties nevertheless the Practicum was successful. Dr Baker said that he was unaware at the time of these two earlier Practicums that the complainant had a disability as she had not drawn this to his attention. He said that after the second Practicum he had made reference in his report to "emotional trauma", however, he said he did not regard emotional trauma as the same thing as a disability, and he was not aware that the complainant's emotional trauma was either the result of, or equal to, a disability. He said that the complainant had not sought any accommodations with respect to either of the two earlier Practicums. He said that most students undertake significant stress and trauma with respect to the Teaching Practicum and he did not regard the complainant as being singled out. However, because of difficulties at the initial placement it was suggested that the complainant attend another school for the balance of the placement and Dr Baker sought out a supportive teacher and involved himself in the complainant's supervision in order to give her more support. He said that the complainant had not asked for any other options at the time, and when she queried at the inquiry as to how she was to know what options were available, Dr Baker said she "only had to ask".
Dr Baker emphasised that all of the accommodation sought by the complainant had been addressed in conjunction with Professor Trent. The only aspects of the accommodations which she sought which were not accepted by the respondent were that her placement be on a part time, two days on, one day off, basis, and that she had the ability to take "personal time and space" at lunch breaks. The part time placement as such had been accepted, but it was his professional opinion that the maximum accommodation that could be permitted would be that it was four successive days Tuesday to Friday, without it being a broken time. He said it was not possible for the complainant to have a capacity to leave the school or classroom: he said that Melissa Madsen had told him that what the complainant wanted was to be able to leave the classroom or the school for a period of time whenever she felt stressed. At the inquiry the complainant told him that what she meant by needing personal time and space was her "own desk space". Dr Baker said that he had understood that it meant more than that but if that was all the complainant wanted then that would be part of normal arrangements. All the other accommodations suggested by Mr Litt are a normal part of arrangements for the Teaching Practicum. Under those circumstances Dr Baker said the only aspect that was not agreed to was that the complainant have a broken week for the part time Practicum. He emphasised that he believed that this was simply not possible because it was too fundamental, and would undermine the academic legitimacy of the exercise as part of the academic degree. Dr Baker emphasised that with a broken week it would not be possible for the complainant to demonstrate the required competencies within the course and to pass, consistent with academic standards. He said any failure would not necessarily reflect the complainant's capacity, but the fact of the broken week. Under those circumstances the proposed achievements of the course could not be demonstrated by a broken week and so it was not an appropriate accommodation. Dr Baker said that he believed that the University was "bending over backwards to accommodate" the complainant, and the only reason for not allowing her to undertake the Teaching Practicum in the way she sought was because he and the University had a responsibility to uphold the academic standards of the degree. He regarded this as "a very serious and significant responsibility". His judgment in the end was that the academic integrity of the course was at risk if there were a midweek break. He said he had conceded that the course could, under the complainant's circumstances, be undertaken on a part time four successive day basis with additional support but no further accommodations were possible.
Dr Baker also gave evidence of his knowledge of the University's policies relating to students with disabilities. He agreed that there were guidelines relating to the undertaking of the Teaching Practicum which had been developed from a broad consultation within and outside the University including consultation with students, teacher and employer organisations, and parent organisations. He said the guidelines were described as "expectations" in documents about the Practicum, but in his view "it was a matter of semantics" as to whether these were described as "policies", "guidelines", or anything else. He said students were expected to adhere to the expectations set out. Within the guidelines there was a capacity for flexibility because each circumstance was different, and although the expression "expectations" was used, rather than "policies", he believed the purpose of the statement of expectations was to indicate to students the skills needed to be demonstrated. He said he had no doubt in his own mind that these were in fact "policies" in the sense that they set out the responsibilities, assessment, criteria and general expectations relating to the Practicum. He said the document was very specific and coherent and all expectations are clearly stated and made available to students.
3.2.7 Mem Fox
Associate Professor Merriam ("Mem") Fox gave affirmed evidence at the inquiry. She said she had taught in the School of Education for twenty four years, and was also a "writer of some renown which is itself a qualification". Ms Fox said she felt adequately trained to deal with students with disabilities and was familiar with the Uniability document of the respondent. She said that she understood that a student's disability must not be discriminated against and must be accommodated, but it was necessary to do this without compromising academic standards. Ms Fox said she first taught the complainant in 1991 in Language/Arts I and the complainant passed this subject. She was unaware at that time that the complainant had any disabilities. The complainant again enrolled in her course in 1994 in Language/Arts II. Ms Fox said she remained unaware that the complainant had any disability until a problem arose after a class in 1994.
Ms Fox said there were two episodes in relation to Language/Arts II in 1994 where there were difficulties with the complainant. The first was with the first assignment which was called the "big book" assignment. This was due on 21 March and Ms Fox returned the marked work to students on 29 March. Ms Fox said that the plan for the "big book" assignment was that students would produce a "big book" in the nature of an autobiography. She said that the complainant told her that she did not want to do this because she regarded it as an intrusion on her privacy. Ms Fox said she felt "mortified" that she had not thought of this aspect and agreed that the complainant could do her "big book" on something else non-fictional. She said the complainant did submit a "big book" "but it was an appalling example of the genre": Ms Fox said it was ill spelt, inappropriate, and so beneath the required standard that it was a immediate fail. She said she had a discussion with the complainant and she accepted it was of fail standard. She did not seek leave to re-submit and Ms Fox said she did not consider it appropriate to offer her a re-submission. Ms Fox said that part of the exercise of discretion in permitting a student to re-submit a unsatisfactory assignment related to the quality of the assignment that was submitted, and the complainant's assignment was so below the quality expected that a re-submission was inappropriate. Ms Fox said that she was unaware that the complainant had any disability at this time and had she known of the disability she would have allowed the complainant to put in all her assignments at the end of the semester. However, she said that the complainant did not fail the "big book" assignment because of difficulties that might have related to poor concentration and short term memory: she failed because of the totally inadequate standard of the work that she produced. The assignment was "nowhere near passing" and she regarded the work as representing the work of a student who was "bone idle, running rings around me, expecting me to accept work of such an appalling standard". She said that in her view any disability of the complainant's was not pertinent to the literary standard of the "big book": there was in her view no connection between the poor standard and quality of the assignment and short term memory loss or difficulty of concentration. In any event no extension was sought nor application to re-submit was made by the complainant, and at that time Ms Fox was unaware of her disability.
Ms Fox said that the second episode concerning the complainant was about two weeks after the "big book" was returned and arose in a class where she required the group to perform for her a poetic ballad ("Sailaway") which all members of the class were required to perform by heart. Ms Fox gave the students appropriate advance notice and the complainant made no objection. She said the students organised themselves to perform the poem, grouping themselves around a table. The complainant was at the back of the group, on the table. Ms Fox said that some students had books with them and she told them to put the books down because the poem had to be recited by heart. Other students closed their books but the complainant did not do so. She said she specifically spoke to the complainant and said, "[W], close the book," but the complainant refused. Ms Fox said she repeated, "[W], close the book," and the complainant replied to her "I refuse to close the book". Ms Fox said she would not continue the class unless the complainant closed the book and she said that the complainant then jumped off the table and threw the book across the room, saying, "for the sake of the class I will leave the room", and did so. Ms Fox said she saw this as "a real battle of wills", and saw the complainant as questioning her authority to run the class. Ms Fox said she felt very confused by this.
Ms Fox said that she had never allowed students to use books as a prompt in this exercise as it would make it completely pointless. She said that she had explained to the class why it was important for them to know the work by heart, and told them of the theory relating to recitation by heart as a form of story telling, and had demonstrated the "magic" of storytelling by heart to them. She said that the complainant had misunderstood if she had believed that she could ever have used the book as a prompt and she was most adamant that she had never allowed this. Ms Fox said that everyone was very embarrassed after the complainant left the room and she felt concerned. Ms Fox said that the complainant had not said that she was unable to do the task without the book, and nor did she say that she would explain to Ms Fox in private why she was unable to do so. Ms Fox expressed outrage at the account of the complainant's evidence relating to the events of the class: she said she had a very clear and vivid recollection of the event which she described as "apocalyptic" in her experience in teaching.
Ms Fox said that the complainant did return to that class later on and she was pleased she had done so. At the end of the class an arrangement was made for the complainant to discuss the matter with her the next day.
Ms Fox said that when the complainant attended the following day to discuss the matter she made arrangements for a secretary to be present in her office to take notes of the meeting. She said it was "well known" that the complainant was "well read in the University statutes" and she decided to have someone present to take some notes of the meeting. She said that she did not regard this as altogether unusual, but she had been concerned at what she regarded as the complainant's "extraordinary" behaviour on the previous day in class and she considered that it might be appropriate to keep a record of the discussion, particularly because it was known that the complainant was "expert at knowing every rule". Ms Fox said the complainant had "a reputation amongst staff as a problem student", and that her behaviour from time to time had been discussed casually among academic staff. Ms Fox said that when the complainant came into her office the complainant said "do you need protection? Don't worry I have left my gun and knives at home". Ms Fox said that she replied good humouredly "maybe I should have put you through a scanner", and the complainant replied "you think I'm joking don't you?".
Ms Fox said that at that discussion the complainant explained to her that she had a disability. This was the first Ms Fox had known of the complainant's disability. She said that if she had known of the complainant's disability she would have made different arrangements and perhaps would have given her an option of a shorter piece with rhythm repetition. She said it was difficult to deal with a student with this form of disability in the context of class work because other students would want to know why different treatment was being made available to another student and under those circumstances it is difficult to maintain confidentiality. However, Ms Fox said the issue of the complainant's disability did not impact on the issue relating to the "big book", because the complainant's failure there involved a major lack of effort. However, the "Sailaway" arrangements might have been made differently.
Ms Fox said that the complainant's withdrawal from the subject was because of the failure of the "big book" assignment, not because of the episode with the poem. She said that the poem was not an assignment as such, it was simply a required part of the course. While she accepted that the problem with the "Sailaway" episode was a result of the complainant's disability this did not lead to her failure in the course. Ms Fox said that the complainant had never asked to re-submit the "big book", but conceded that she had never really given her a chance to do so.
Ms Fox said that she did have a strict policy for extensions for written work. She said this did not mean that she did not grant extensions, but she did not do so lightly, and believed that extensions should be granted in a very even handed way. She said that she regarded it as very important to get papers back quickly and was keen not to delay this process so that students could move on to the next part of the course. She said that she believed it was not only more efficient but fairer to have a clearly stated position relating to extensions. However, she said that she granted extensions if there were good reasons. She said that the complainant did not fail the "big book" assignment because of any "no extension" policy, but because it was of fail standard. Nor had she asked for any extension for the work to be done in relation to that assignment.
4. LEGAL SUBMISSIONS
The complainant and the respondent each made detailed written submissions subsequent to the inquiry, and further extensive submissions in reply.
4.1 The complainant's submissions
The complainant submitted that she was diagnosed with a psychiatric illness classified in standard psychiatric texts, for which she was receiving treatment. She referred to the oral evidence of Mr Litt and the report of Dr Rozenbilds as indicating that the symptoms of her disability included depression, short term memory loss, poor concentration, withdrawn and racing thoughts, hypermania, confusion, forgetfulness, thought disorder, and anxiety. The evidence also indicated that her symptoms are erratic and episodic, and affect her ability to study. The complainant submitted that she did not take medication over any sustained period because of her sensitivity to its side effects. Her symptoms are exacerbated by stress, and she had been hospitalised in relation to her disability in June of 1995. The complainant submitted that her condition came within the definition of "disability" in s.4(1)(g) of the Act.
The complainant submitted that her complaint of unlawful discrimination was made out in respect of a number of persons employed by the respondent and a number of circumstances. They were as follows: in relation to the subject in which she enrolled in 1993 taught by Dr Philip Slee and a further subject taught by Dr Slee in 1994; the refusal of Ms Fox to provide accommodations to the complainant in the subject Language/Arts II in 1994; in relation to the various negotiations which had been on going in relation to Language/Arts II in 1995; in relation to the negotiation of accommodations for the Teaching Practicum in 1995; in relation to a Teaching Practicum undertaken by the complainant in 1994; the University's failure to supply adequate training to its employees in respect of disability discrimination and the requirements of the Act; and in detriment she had suffered as a consequence of breaches of her right to privacy by the respondent.
4.1.1 Philip Slee
The complainant makes reference to information contained in her initial complaint that in 1993 "I disclosed the nature of my disability to a lecturer who strongly advised me to withdraw from his topic". In her complaint the complainant says she did not withdraw from the topic and passed without accommodation or adjustment. In further information which the complainant provided to the Commission on 10 July 1996 she made more specific allegations naming Dr Slee in relation to two subjects Child Peer Relations from Primary to Middle School (1993), and Pupils Learning and Teaching (1994). The allegation is that she disclosed the nature of her disability to Dr Slee early in 1993 and his response was to suggest that she withdraw from the topic. She did not do so and she passed the subject. In her original complaint she states that Dr Slee "did not make himself available" in relation to the 1994 subject, and as she was therefore unable to discuss any accommodations she withdrew from the subject.
The complainant submitted that Dr Slee's behaviour in relation to both subjects constituted discrimination under the Act.
4.1.2 Mem Fox - Language/Arts II 1994
The complainant submitted that Ms Fox had refused to provide accommodations to her in this subject and in particular by excluding her from the class activity "Sailaway", and by not permitting her to re-submit the "big book" assignment which she had failed.
The complainant's submission is that although she failed the assignment this was because of Ms Fox's "no extension policy" which the complainant submitted was itself in breach of the University's relevant guidelines, in that it suggested that no possible accommodation would be available even if a student had a disability. Accordingly, the complainant had not sought an extension and agreed that she had submitted material of fail standard. The complainant submitted that Ms Fox herself had agreed that she rarely granted extensions, even while acknowledging that some students might be reluctant to reveal disabilities and seek special assistance.
The complainant further submitted that she was not permitted to re-submit her failed assignment. She submitted that other students were permitted to re-submit assignments and that she was not treated equally to those other students. Ms Fox was aware of her disability and under those circumstances the complainant submitted that Ms Fox had treated her differently from other students because of that disability.
The complainant agreed she had not informed Ms Fox of her disability prior to the meeting after the "Sailaway" episode, but that she submitted that Ms Fox should have been aware, through observations of the complainant's behaviour, that there may have been a difficulty, and further that the Faculty Assistant Registrar should have advised Ms Fox that the complainant had a disability.
With respect to the "Sailaway" presentation, the complainant submitted that her evidence that she stated at the time of the class that she was unable to perform without the book should be preferred to that of Ms Fox, whose evidence was that she simply refused, without giving a reason. The complainant submitted that she was unable to undertake the work as required because of her disability and that Ms Fox failed to accommodate that disability even when she became aware of it subsequently. The complainant submits that the presentation, memorising and performing a ballad was not an inherent part of the subject, but the effect of her exclusion from that particular class "would have been failure in the topic despite the fact that the exercise was not an inherent requirement." The complainant said that under these circumstances she withdrew from the course. Her further submission was that even when Ms Fox formally became aware of the complainant's disability she did not discuss or negotiate any form of accommodation for the "Sailaway" performance or the resubmission of the "big book", which the complainant had already failed. The complainant submitted that these actions constituted a breach of the legislation.
4.1.3 Language/Arts II 1995
The complainant's submission in relation to this subject was that the complex and difficult nature of the negotiations to obtain accommodations in respect of the assessment in this subject was so protracted as to constitute discrimination under the Act. Further, she submitted that she did not receive the accommodations which she sought and this also constituted discrimination. She submitted that there was also a refusal to continue to negotiate accommodations; that the application of a 20% penalty of a late submission of an assignment was discriminatory; the decision not to remove this penalty was discriminatory; and the whole process of negotiation for accommodations was discriminatory under the Act.
The complainant submits that the evidence indicated that the negotiations to obtain accommodations for assignments were protracted and took from March 1995 to September 1995, and at that time further negotiations were refused by Ms Hancock. Furthermore, the complainant submitted that the evidence made it clear that Ms Hancock was not willing to accept all the accommodations requested and in particular the request for extensions. The complainant suggested that the imposition of a 20% penalty which she said was not removed when the assignment was re-marked meant that she failed the assignment despite the provision of medical evidence supporting her request for accommodations because of her disability and she was not permitted to re-submit that failed assignment. Nor was she provided with a viva voce examination. The complainant further submitted that she had requested through the University's Disability Liaison Officer particular accommodations, especially in respect of "maximum extensions" and although extensions were granted these were not the "maximum extensions" which she had sought. She conceded that although she did receive some accommodations this was only after extensive negotiations and correspondence, and not in accordance with the advice of her specialist.
The complainant submitted that it was the requirement of Ms Hancock that documentation be provided before any accommodations could be arranged and this held up and complicated the process. She submitted that the accommodation requested was reasonable and if she had obtained these accommodations early in the semester, rather than being required to engage in extensive negotiation, she would have been able to perform appropriately. Further, she submitted it was the process of negotiation itself which led to a further deterioration in her health requiring hospitalisation in June 1995, making it impossible for her to undertake work which she intended to do during the period of the extensions that were granted in respect of the assignments. Her recovery from this hospitalisation also interfered with her work.
The complainant submitted that Ms Hancock refused to continue to negotiations in respect of this subject on 15 September 1995.
The complainant submitted that the requirements of the University in respect of negotiations placed too much stress on her, particularly taking into account her disability, for her to be able to negotiate effectively. She stated that she did not delay in providing sufficient and appropriate evidence of her disability and submitted that the accommodations that she requested were not particularly extensive had they been granted at the early stage of the semester when she had requested them. The complainant submitted that delays in respect of negotiations in second semester were due to her illness and hospitalisation, and that the evidence indicated that she had not delayed in respect of any of the matters requested in the negotiations during first semester. The complainant submitted that the accommodations eventually provided were not substantial or effective in addressing any of the difficulties which her disability imposed on her, and were therefore insufficient and led to her failure in the subject.
4.1.4 Teaching Practicum
In her submission the complainant conceded that the University had now indicated that it was prepared to make all the concessions that she sought in respect of the Teaching Practicum other than that relating to the days on which she wished to attend (that is, 2 on, 1 off, 2 on). However, in her submission the complainant states that "at no time (prior to the hearing) was it indicated to me that the recommendations requested in the letters [from Mr Litt] were acceptable". The complainant submitted further that insofar as the University had not accepted the recommendations made by Mr Litt and in offering alternative course options (by Professor Trent), the University had discriminated against her.
The complainant submitted that the grounds that the respondent relied on in denying the accommodation she requested were unreasonable. She submitted that Dr Baker, who denied the accommodation she requested, did not have the professional expertise or qualifications to make such assessment, and that the University, rather than accommodating her disability, had introduced or proposed measures based on assumptions about her disability, and that this was apparent in Dr Baker's evidence. Further, the complainant suggested that the argument that there was no precedent for the type of accommodation she sought should be ignored, as this did not justify the denial of a reasonable accommodation in line with recommendations made by her specialist. She submitted that the argument that a fractured Practicum would make issues of assessment very difficult should not be used to deny her the opportunity to undertake the Practicum and attempt to achieve the required competency. The complainant submitted that difficulties in making assessment are matters for the University to make adjustments for and to address as an educator. The complainant also submitted that the argument that she would not be able to meet the required standards "by definition" was unreasonable, and that the way in which she had proposed to undertake the Practicum would in fact extend her teaching over a ten rather than an eight week period and therefore require more teaching. The complainant also submitted that the claim made by Dr Baker, that the primary aim of the final Teaching Practicum is to simulate first year teaching, should be ignored. The complainant argued that one of the reasons for not accommodating the part time Practicum was because of the University's view of its obligations to the Registering body, which she submitted was improper, as the University was not able to preempt the decision of such a body.
Further, the complainant submitted that the evidence of Ms Finch supported the account she has given of the meeting with Professor Trent, and that Professor Trent, had made no attempt to accommodate her disability in respect of the Teaching Practicum.
4.1.5 Teaching Practicum 1994
The complainant submitted that the evidence given by Dr Baker at the hearing indicated that he had behaved towards her in a discriminatory way in respect of his "accommodation" of her difficulties in her teaching at South Road Primary School in the Teaching Practicum in 1994. The complainant describes this increased observation provided by Dr Baker as "surveillance", and that it amounted to discrimination.
4.1.6 Staff development
The complainant submitted that the respondent's witnesses Margaret Messenger, Melissa Madsen, Lyn Tonkin, Gordon Baker, Faith Trent, Joelie Hancock and Mem Fox were not adequately trained by the respondent in respect of their duties towards students with disabilities. She submitted that Ms Tonkin, Dr Baker, Ms Fox and Ms Hancock had not attended any in-service training provided by the University in this respect, and Ms Hancock took no action to ensure that Ms Tonkin, one of her staff, attended training. Ms Messenger, head of the Equal Opportunity Unit, and Ms Madsen the Disability Liaison Officer, had agreed that University staff might put the University's Uniability document "on their bookshelves", and the complainant submitted the implication of their evidence was that staff at the University were not adequately familiarising themselves with the policies. The complainant submitted that Dr Baker's evidence indicated that the University does not provide any follow up to ensure its information on students with disabilities has been understood or is being applied, and that the evidence of Ms Fox and Ms Hancock indicated that they neither complied with, nor were familiar with, the University's policies in this area.
The complainant submitted that in light of this evidence I ought to make findings that there is a lack of effective in-service training and follow up to employees of the respondent relating to disability discrimination, the Act, and the associated University policies, and this lack of training has led to discriminatory behaviour towards her which is in breach of the Act.
4.1.7 Privacy and disclosure
The complainant submitted that she had a legitimate complaint relating to a breach of her right to privacy. In particular, she referred to the evidence of Ms Fox and Ms Hancock, who both indicated that the complainant's behaviour had been discussed with other staff, and that the complainant had a reputation "as a problem student" or "a different student". The complainant submitted that this evidence indicated a failure to comply with the obligations contained in the University's relevant policy "to respect the rights of people with disabilities to privacy and confidentially", and "ensure that information is kept confidential, consistent with the requirement of the relevant legislation". The complainant submitted that the evidence of Ms Hancock and Ms Fox indicated that there was broad based discussion involving her and her behaviour, indicating a breach of the policies and legislation.
The complainant's submissions addressed the evidence in some detail and included various tabulations setting out the accommodations which were offered to her compared with those she had sought, and time lines of the various negotiations.
4.2 The respondent's submissions
The respondent also provided extensive submissions subsequent to the hearing as well as submissions in reply addressing issues raised by the complainant in her initial submissions. The respondent's submissions also included extensive reference to the evidence and tabulations setting out the various accommodations granted to the complainant, and the chronology and time lines as asserted by the University. It also included copies of further documentation which was not tendered at the hearing (copies of this documentation was provided to the complainant before she made her submissions in reply): these documents include a memorandum from Ms Madsen to Ms Hancock, with a copy to the complainant, dated 22 May 1995 concerning the examination date as a due date for assignment 2, in Language/Arts II and reiterating a request for "a maximum extension for assignment 2" and indicating that the complainant "wishes to pursue other avenues of appeal"; a letter from the complainant to Ms Hancock dated 29 May 1995 thanking Ms Hancock for the offer of the extension on the second assignment until 26 June 1995 and indicating that if she is not able to meet the date of that assignment she would contact Ms Hancock; a medical certificate from Flinders Clinic dated 7 April 1995 in respect of the complainant indicating that she was suffering from "viral U.R.T.I - Myalgia," and would be unfit for work for the period 7 April 1995 to 10 April 1995; and a memorandum from Ms Madsen to Mr Jones, the Manager, Academic and Student Services of the respondent, covering a letter from the Disability Discrimination Commissioner to Deakin University, regarding the relationship between professional registration bodies and tertiary institutions. This letter is dated 12 December 1995 and is information and advice from the Commissioner to the Deakin University Disability Liaison Unit and is provided as a matter of information. I have noted the contents of the materials provided by the respondent with its submissions but note that they did not constitute the evidence presented at the inquiry. I am aware that the complainant has seen this documents and has addressed these documents in her own submissions.
The respondent invited me to dismiss the complainant's complaint. The respondent stated that the complainant's complaint was identified in her initial complaint as relating to "two topics for which Flinders University is considering precluding me due to the failure of these topics twice". In respect of one of these topics in relation to which preclusion had been considered (Pupils Learning and Teaching), the complainant gave no evidence of discrimination in the course of the inquiry. The respondent submitted that the complainant's failure to complete the second subject, Language/Arts II, was due to her failure in disclosing, or delay in disclosing, her disability to University staff; delay in the provision of sufficient evidence of that disability to enable it to be appropriately accommodated; lack of timeliness in responding to requests in order to negotiate the accommodation for her disability; and her inability to undertake the work to fulfil the topic requirements even with the accommodations provided. The respondent submits that quite substantial accommodations were made "promptly", and that in any event the potential discrimination of which the complainant complained did not occur, as she was not precluded from re-enrolling.
The respondent submits that the complainant complained that it had discriminated against her by not agreeing to each accommodation she sought in respect of the final year Teaching Practicum. The respondent submitted that it had made every reasonable adjustment that could be made to the requirements of this aspect of the course in order to accommodate her disability as requested without compromising the inherent academic requirements of the course.
With respect to the complainant's allegation that the University had provided inadequate training to its employees to enable them to deal appropriately with students with disabilities the University submitted that there was no evidence to support the complainant's allegation.
The University submitted that the complainant had alleged that she had been discriminated against pursuant to s.5 of the Act, and that in order to establish this the complainant had to show that she had been treated less favourably than others on the basis of her disability. The respondent submitted that no evidence had been adduced to support this complaint other than the complainant's own assertion that in her experience she had been more successful in negotiating extensions as a single mother than she had been in attempting to negotiate accommodations on the basis of her disability. She did not provide any evidence as to the circumstances of other students in order to establish the comparison required by s.5. In any event the University submitted that the complainant had been treated more favourably than other students in particular in relation to provision of accommodations to her by way of altering assignments, extending assignment dates, altering course assessment arrangements, and permitting the accommodations requested in respect of the Teaching Practicum, including being permitted to undertake it on a part time basis. Further, she was not precluded from re-enrolling despite two fails in Pupils Learning and Teaching, and she was granted supplementary examinations. The respondent suggested that the complainant's allegation of direct discrimination contrary to s.5 of the Act is misconceived, because the alleged inadequacy of the accommodation provided where different accommodations were requested cannot amount, in the University's view, to less favourable treatment within the meaning of s.5.
With respect to s.6, the respondent submitted that the complainant must establish evidence to comply with each of the three aspects of s.6: that is, that she was required to comply with a requirement or condition with which a substantially higher proportion of people without her disability were able to comply; which was not reasonable having regard to the circumstances of the case; and with which the complainant did not or was not able to comply. The respondent submitted that the complainant's evidence focussed solely on the second aspect of this test: that is, that she was not provided with reasonable accommodations for her disability, but adduced no evidence with respect to the first or second aspects of s.6. In any event, the respondent submitted in all the circumstances the accommodations provided to the complainant in respect of Language/Arts II were reasonable. The respondent made the same submission in respect of the accommodations and the general course requirements in respect of the final year Teaching Practicum, submitting that the topic and course requirements were reasonable in all the circumstances.
With respect to s.22 of the Act, the University submitted that the complainant's allegations was that the University had imposed discriminatory terms of admission to the final year Teaching Practicum. The University submitted that this was misconceived, as the complainant's complaint was really about the reasonableness of accommodations sought by her, rather than the terms of admission to that subject of the course. Insofar as the complainant complained that there was a breach of s.22(2)(a) of the Act because she found lecturers "a little more difficult to access" than some other students and did not "get extensions quite as easily as other students", the University submitted that there was no evidence in respect of the first allegation, and the second allegation was peripheral to the primary complaint of indirect discrimination. In any event the University submitted that it had granted her substantial accommodations, in particular in respect of extensions.
With respect to the complainant's allegation that she was "expelled" from Language/Arts II in 1994 because of her inappropriate behaviour, alleging a breach of s.22(2)(b), the University submitted that the complainant was not expelled, but as she had failed her first compulsory assignment she chose to withdrew from the subject to avoid HECS fees and a recorded failure. Her disability was not known to Ms Fox at that time and her behaviour, although on the complainant's evidence a consequence of her disability, was not relevant. With respect to the complainant's allegations of a breach of s.22(2)(c) because she was subjected to "detrimental allegations that regular students don't have to go through" in Language/Arts II in 1995, the University submitted that the complainant's negotiations were not detrimental and "more than reasonable accommodations" were made for her.
The University submitted finally that the complainant's general complaint that its staff are not adequately experienced and trained to deal with persons with disabilities does not amount to discrimination within the meaning of ss.5, 6 or 22 of the Act.
The respondent also submitted that the complainant's primary purpose in her complaint of 23 October 1995 was to avoid preclusion from re enrollment and to negotiate a part time Teaching Practicum. The University submitted that preclusion has not been an issue since December 1995 and it had already offered to accommodate the complainant's disability in respect of the Teaching Practicum so that she could complete it on a part time basis, although not in the sequence that she had requested. The University's submission was that any further alteration of the Teaching Practicum, and in particular an alteration of the Practicum as requested by the complainant, would fundamentally compromise the inherent academic requirements of the course. The University referred to the unchallenged expert evidence presented by Professor Trent and Dr Baker.
The University also made some other submissions specifically directed to certain areas of evidence.
The University submitted that in general the complainant's evidence was confusing and self contradictory, particularly in respect of dates. Although she complained about the extensive time over which negotiations in relation to Language/Arts II occurred, in cross-examination she agreed that "turn around was fairly quick". She conceded that the University had responded promptly but she had been unable to obtain specific evidence "overnight". The University submitted that the complainant perceived these negotiations as prolonged, but in fact the primary delay between 21 March and 8 May was the period whilst the University was awaiting medical evidence from the complainant. As soon as that was provided the complainant's requested changes to the topic assessment were negotiated and granted, and by 18 May new assignment due dates had been agreed.
The University also submitted that the complainant was incorrect in some of her evidence, in particular that she was required to complete and pass assignment one in Language/Arts II before she could move on to the other assignments. The University states that the evidence indicates that this was not the case.
With respect to the complaints the complainant made concerning training, the University referred to the evidence of Ms Madsen setting out the development of the University's policy statement on students with disabilities; an action plan pursuant to that policy; guidelines for reasonable adjustments to assessment for students with disabilities; the University's budget for the provision of special services for students with disabilities; the University's resource centre in the library for students with disabilities; the University's orientation sessions for new staff, including training to assist them with students with disabilities; and the publication of the University (along with the other Universities in South Australia) Uniability. The University also referred to the evidence that there is a section on enrolment forms where students can identify themselves as having a disability if they so choose. Students have this opportunity each year they re-enroll, but the University emphasised that it is not a requirement that such students identify themselves. The University submitted that none of the evidence concerning its policies and actions taken in respect of students with disabilities were challenged by the complainant. The University referred to the evidence of Ms Madsen, Ms Messenger, Ms Tonkin, Professor Trent, Dr Baker, Ms Hancock and Ms Fox in respect of this issue.
The University submitted that the allegations made by the complainant with respect to Philip Slee in 1993 and 1994 ought not be regarded as proven: it emphasised that the complainant gave no oral evidence concerning her allegations and they amount to no more than bare assertions. In respect of the subject the complainant undertook with Mr Slee in 1993, no specific discrimination has been alleged by the complainant, as she did not request any accommodations and passed without them; the allegations with respect to 1994 involves a "bare assertion" by the complainant that Mr Slee made himself unavailable because of the nature of her disability, but no evidence was presented. The University submitted that this aspect of the complaint should be dismissed.
With respect to the complaint regarding Language/Arts II 1994 taught by Ms Fox, the University submitted that Ms Fox's evidence should be preferred to the complainant's where there is any conflict. In particular the University refers to the fact that Ms Fox showed that she had a very good memory of the relevant events and was able to present a clear sequence of events, in contrast to the complainant's evidence. In addition the University submitted that some of the complainant's assumptions which underlay her evidence were fallacious: in particular her assertion that students had in the past been able to use the book as a prompt for the exercise which she was unable to perform, and the allegation that Ms Fox had a "no extension" policy. The University submitted that it is clear from Ms Fox's evidence that no student had ever been able to use the book for a prompt in the "Sailaway" exercise, and that Ms Fox did permit extensions, but made it clear that it was only in exceptional circumstances. In any event no extension was ever requested by the complainant for the work she undertook with Ms Fox. Nor was Ms Fox aware of the complainant's disability at the time of the "Sailaway" exercise or the submission on the "big book".
With respect to the allegations concerning Language/Arts II in 1995 and in particular involving Ms Hancock and Ms Tonkin, the University submitted that these allegations are not proven by the complainant. The University submitted that the complainant failed that subject because she failed to submit three of the four aspects of assessment, the first assignment being tripled marked and failed on each occasion, even with the exclusion of a late penalty. The University submitted that reasonable accommodations had been made for the complainant in respect of this subject and were made within a reasonable time. Any unreasonable delay in respect to these accommodations related to the complainant's own delays and failure to provide information in a timely manner. The University submitted that there was in fact a very quick response to the complainant's request and accommodations were agreed to by Ms Hancock very quickly, as soon as the information requested was provided: in particular the accommodation was agreed to the day following (9 May) the first request for medical information, and then subsequently within a week of the second request on 12 May. A further extension was then granted on 26 May. The University submitted that is was not until 8 May that any substantiation of the complainant's disability came forward and an earlier medical certificate presented by the complainant on 7 April 1995 referred to "Viral URTI-Myalgia", which the University submits indicates no reference to the complainant's disability. (In her submissions in reply the complainant asserted that this virus may have been related to her disability). The University submitted that even as late as 18 July 1995 the complainant was granted a right to a supplementary assessment in relation to this subject and was permitted to re-negotiate extended deadlines for submissions of outstanding work but made no attempt to contact Ms Hancock until September 1995 when she was notified of a fail in her subject. The University submitted that the evidence indicated that the complainant had made no attempt to contact Ms Hancock or Ms Tonkin at the relevant times.
With respect to the Teaching Practicum the University submitted that the complainant's allegations of discrimination in this respect were not proven. The University submitted that its expert witnesses, Dr Baker and Professor Trent, gave evidence that most of the requirements requested by the complainant as accommodations in this respect would have been provided as a matter of course. The University states that at the inquiry the complainant indicated that the request for "personal time and space" was a reference to her requirement for a desk of her own in the class room, and the University indicated that this would certainly be accommodated. The University submitted that this had not been its understanding of the request made by the complainant.
The University states the only accommodation in respect of Teaching Practicum not granted specifically in the terms requested by the complainant was that the Practicum be performed on a part time, "2 on, one off, 2 on", basis. The University stated that a significant concession had been made to the complainant to permit her, because of her disability, to undertake the Practicum of a part time basis, but it considered that it had to be performed on four consecutive days in order to maintain the academic integrity of the subject.
The University also submitted that the evidence that Ms Turner and Mr Sewell should not be accepted as reliable, and further submitted that Mr Litt's evidence should not be accepted except insofar that it related to the complainant's disability. The University made it clear in its submissions that it did not challenge the evidence of Mr Litt as to the existence and nature of the complainant's disability. Further the University submitted that Ms Finch's evidence should not be accepted where it conflicted with that of Professor Trent.
In addressing the complainant's specific submissions the University has submitted that it is not responsible to ensure the complainant's success in her studies, rather that its responsibility was limited to ensuring that the complainant received equality of opportunity, as distinct from the equality of outcome. The University rejected submissions made by the complainant that her failure in 1995 was a consequence of difficulties in negotiating with the University: the University submitted that it was unaware of her ill health in 1995 until the time of the hearing. The University submitted that there were a number of circumstances where the complainant had not established that her disability was related to her difficulties in her study, in particular the failure of the assignment with Ms Fox. The University submitted that it was not obliged to make accommodations for students with disabilities purely on the basis that the student requested such accommodation: rather, while the University had an obligation under the Act to grant accommodations, this was only insofar as it could be done while maintaining the academic integrity of the course.
With respect to the complainant's final submissions relating to the Teaching Practicum in 1994 and the issue of privacy and disclosure, the University submitted that I ought not take the submissions into account. The University submitted that no complaint had been made concerning the 1994 Teaching Practicum until the time of the hearing, but in any event the complainant had not established any discrimination under the Act as any difficulty to which she was referring was in respect of the earlier Teaching Practicum. Dr Baker's "increased observations", and his comments at the end of the Practicum were not established by any evidence to be on the basis of her disability. With respect to the complainant's complaint about "privacy and disclosure", the University further submitted that this too was a new complaint, but in any event that the complainant had not presented any evidence to indicate that any of the comments made about her in the evidence of Ms Hancock and Ms Fox had occurred with any knowledge of her disability or on the basis of her disability. Accordingly, the University submitted I ought not to take these complaints into account, but if I did so they would not be substantiated.
5. FINDINGS OF FACT
I have carefully considered all the evidence presented in respect of the complainant's complaint, including that contained in the report provided by the Commissioner when the matter was referred to hearing (which was admitted into evidence with the consent of both parties), the further detailed information provided by the complainant on 10 July 1996 in support of her complaint, and the oral evidence presented by the parties and their witnesses at the inquiry. I have also taken into account (although it was not formally put in evidence) the report of Dr Rozenbilds: I note that the University in its submissions opposed this being taken into account as part of the evidence, but in my view it was clearly before me in the course of the inquiry and the University had access to Dr Rozenbilds' report. Further I note that Dr Rozenbilds' report describes the complainant's symptoms but refers in particular to Mr Litt as the complainant's treating specialist as the person whose evidence was most likely to be of use in this matter. I have also had reference to the information provided by the University with its submissions but I note that this did not constitute evidence put before me at the inquiry. The evidence relating to this matter was very extensive and complex and numerous matters arose between the referral of the complaint for inquiry and the holding of the inquiry, at the inquiry, and subsequently in the submissions which had not been referred to in the original complaint made by the complainant. These additional matters as well as the volume of the information have made this matter one of significant complexity.
On the basis of this evidence I make the following findings of fact:
_ The complainant has a disability.
_ The symptoms of the complainant's disability include poor concentration, poor short term memory, difficulties with continuity and difficulties with dealing with stress. They are erratic and episodic.
_ The complainant is presently receiving treatment from health professionals in respect of her disability but she rarely has medication because of her severe reaction to side effects of medication.
_ The complainant's treating specialist says her prognosis is good and that she is about half way through her treatment of the unspecified condition leading to her disability.
_ The complainant has been hospitalised as a result of her disability on several occasions but in particular was hospitalised from 25 June 1995 to 30 June 1995.
_ The respondent is an educational authority.
_ The complainant was enrolled with the respondent from 1993 on a part time basis in the Bachelor of Teaching Degree.
_ In 1993 the complainant undertook as part of the requirements of the course a Teaching Practicum. This was successful.
_ In 1994 the complainant again undertook a Teaching Practicum as required for the degree. There were some difficulties in undertaking this Practicum and the complainant had to change schools. The difficulties which she encountered and the way she dealt with them were noted in the report made by her supervisor Dr Baker. The Practicum was successful.
_ In 1994 the complainant was enrolled in Language/Arts II.
_ One of the lecturers of the subject was Ms Fox.
_ The complainant withdrew from Language/Arts II on 31 March 1994.
_ In 1995 the complainant re-enrolled in Language/Arts II in semester 1.
_ Ms Hancock was the course coordinator of this subject and Ms Tonkin was one of the lecturers.
_ The complainant expected to undertake her final year Teaching Practicum in first semester 1996. This is a compulsory part of the course for the degree.
_ In March 1994 the first compulsory assignment for Language/Arts II, called the ""big book"", was due.
_ The complainant submitted this assignment. She had requested and had been granted a different topic to that originally set.
_ The complainant failed this assignment.
_ The complainant did not seek and was not offered a resubmission of this work and had not sought any extension for its submission.
_ The right to a re-submission of failed work is discretionary, but depends on the quality of the work originally submitted. The complainant's "big book" assignment was such a poor fail that it did not attract a right of re-submission.
_ On 30 March 1994 the complainant was required as part of the class to recite by heart a preset ballad.
_ At the class the complainant refused to do this and she was told that the class would not continue if she kept the book. She left the class.
_ The complainant met with the lecturer Ms Fox on 31 March 1994 and advised Ms Fox that she had a disability which led to difficulties with her memory and her inability to perform as required at the class on 30 March. Ms Fox previously had no knowledge of the complainant's disability.
_ On 31 March 1994 the complainant withdrew from Language/Arts II, having already failed the compulsory assignment of the "big book".
_ In Language/Arts II in 1995 the assessment arrangements were advised at the commencement of the semester and were as follows: assignment one due 7 April 1995 worth 30%; assignment two due 26 May 1995, worth 30%; and an examination worth 40% on 21 June 1995.
_ Materials distributed at the commencement of the semester indicated that unsatisfactory written work could be re-submitted at the discretion of the tutor but only in special circumstances and only on one occasion.
_ On 21 March 1995 the complainant approached Ms Hancock and advised that she had a disability and sought a two week extension in respect of the first assignment due on 7 April 1995.
_ Ms Hancock advised that to grant the extension sought she required supporting medical documentation. The complainant did not have that documentation with her at the time. No extension was granted at that time.
_ The University's Disability Liaison Officer Melissa Madsen contacted Ms Hancock on 10 April 1995 requesting information on the requirements of the course and Ms Hancock replied to her on 21 April 1995.
_ There were various discussions between 24 April 1995 and 28 April 1995 between the complainant and Ms Tonkin concerning the failure to submit the first assignment on time and a possible late submission and Ms Tonkin advised Ms Hancock that if she made a late submission of her work a penalty would be imposed if no extension were granted or no medical evidence provided.
_ On 4 May 1995 Ms Hancock was asked if she would accept the complainant's late assignment with medical evidence and she agreed to do this.
_ The assignment was submitted on 8 May 1995 with medical evidence relating to the complainant's disability. A late penalty of 20% was imposed and the complainant was given a fail grade in respect of that assignment. The paper had been independently double marked, and both examines recorded a fail mark independently of the penalty.
_ On 8 May 1995 the Disability Liaison Officer made a proposal to Ms Hancock with respect to an altered assessment scheme to accommodate the complainant's disabilities. This scheme was suggested by the complainant's treating specialist Mr Litt and proposed that she undertake three assignments each weighted at 30%, with an examination of 10% and with altered assignment due dates.
_ On 9 May 1995 Ms Hancock agreed to these proposed accommodations.
_ A further request on 12 May 1995 sought different assignment dates, namely, 9 June and 21 June as the dates for the submission of the assignments, with the examination on 21 June. These were agreed to by Ms Hancock.
_ On 25 May Ms Hancock agreed to a further extension to 26 June for the submission of the second assignment.
_ On 29 May 1995 the complainant met with Margaret Messenger, Head of the Equal Opportunity Unit, and Melissa Madsen. This meeting was at the complainant's request and there was some discussion of the extensions sought by the complainant in respect of Language/Arts II. Ms Messenger was not asked to take any action as a result of this meeting.
_ The complainant did not submit the second or third assignment or sit for the examination.
_ On 18 July 1995 the complainant was granted a supplementary exam and a right to re-submit the assignment in respect of Language/Arts II. However, she did not respond to this communication to make the required arrangements.
_ On 8 September 1995 the complainant was advised that she was at risk of preclusion from her enrollment because she had twice failed two subjects namely, Pupils Learning and Teaching, and Language/Arts II.
_ On 15 September 1995 the complainant was advised by Ms Hancock that a fail was recorded in Language/Arts II as there had been no contact from her following the notification of 18 July.
_ Prior to this the complainant had sought to have her first assignment re-marked and on 14 July 1995 the complainant was advised that her paper had been re-marked and had been recorded as a fail, even with the 20% late penalty removed.
_ The University has no policy for a viva voce examination for such assessment and none was made available to the complainant.
_ In about July 1995 the complainant made inquiries relating to possible accommodations in respect of her disability in respect of the Teaching Practicum which she expected to undertake in semester one 1996. She discussed the request with the Practicum coordinator Dr Baker.
_ On 25 August 1995 the Disability Liaison Officer advised Dr Baker of the accommodations sought by the complainant as advised by her treating specialist Mr Litt in respect of the Teaching Practicum. The accommodations sought included undertaking the Practicum on a part time basis, and the complainant having her "personal time and space". The part time basis proposed by Mr Litt was that the complainant would attend the school on Monday and Tuesday, have Wednesdays off, and re-attend the school for the Teaching Practicum on Thursday and Friday.
_ Dr Baker advised that this was not an accommodation to which he would agree.
_ On 9 November 1995 the complainant met with Professor Trent Head of the School of Education in the company of her advocate Ms Finch, to discuss her possible preclusion from re-enrollment, and the arrangements for her Teaching Practicum.
_ There was discussion at that meeting in respect of the issue of occupational suitability, possible options of alternative studies that the complainant might undertake, and the difficulty of meeting the accommodations sought by the complainant in respect of the Teaching Practicum.
_ The complainant has clarified her requirement for "personal time and space" to mean her own desk in the school.
_ All accommodations sought by the complainant in respect of the Teaching Practicum were acceptable to the University, other than the sequence in which she sought to undertake the Teaching Practicum: the University agreed that the complainant could undertake the Teaching Practicum on a part time basis extending over four days instead of 5 days per week, and the period of the Practicum to be extended by two weeks, but advised that she would be required to undertake the Practicum on four consecutive days per week, not on the fractured basis which she had sought.
_ To undertake the Teaching Practicum on a fractured basis as sought by the complainant would undermine the academic integrity and purpose of the Teaching Practicum and make it impossible for the University appropriately to assess the student against the academic requirements of the subject.
_ In July 1993 the University developed a policy statement relating to students with disabilities and has subsequently developed an action plan pursuant to that policy and established a committee to oversee the implementation of the policy.
_ The University has developed guidelines for reasonable adjustment to assessment for students with disabilities.
_ The University has allocated a budget for the provision of special services for students with disabilities and has set up a resource centre in the University library for students with disabilities.
_ The University conducts orientation sessions for new staff including training to deal with students with disabilities, and on induction each new member of staff is provided of a copy of Uniability, a joint publication by the three South Australian Universities for staff, which deals specifically with students with disabilities in higher education. This document was distributed to all existing staff by early 1994.
_ The University's policy on student load and assessment deals with students with disabilities for the purpose of incorporating the disability policy into mainstream University policy so that it is clear that accommodations and procedures are available to all students with disabilities.
_ The University's enrollment form, for both initial enrollment and re-enrollment, has a section where a student can advise of any disability.
_ If such information is advised by the student on the enrollment form the Disability Liaison Officer will contact the student and provide a package of information setting out the rights of students with disabilities and advising of contact persons if they require further information.
_ The complainant did not advise that she had a disability on her enrollment form in 1993, 1994 or 1995. Ms Tonkin, Ms Hancock, Professor Trent, Ms Fox and Dr Baker all gave evidence that they were appropriately familiar with the University's policies relating to students with disability and that they considered that they had been adequately trained to deal with students with disabilities in order to enable them to comply with the Act. Margaret Messenger is the Head of the Equal Opportunity Unit in the University and Melissa Madsen is the Disability Liaison Officer for the University. I accept that all these witnesses are appropriately familiar with the relevant University policies and obligations under the legislation towards students with disabilities.
_ Ms Tonkin, Ms Hancock, Professor Trent, Ms Fox and Dr Baker all gave evidence that they were appropriately familiar with the University's policies relating to students with disability and that they considered that they had been adequately trained to deal with students with disabilities in order to enable them to comply with the Act. Margaret Messenger is the Head of the Equal Opportunity Unit in the University and Melissa Madsen is the Disability Liaison Officer for the University. I accept that all these witnesses are appropriately familiar with the relevant University policies and obligations under the legislation towards students with disabilities.
There was a large amount of other evidence relating to these episodes in respect of which I have made specific findings and there was also further evidence generally about matters in which I have made no findings. In particular I make no findings as to the specific nature of the complainant's disability: I note that the complainant has declined to give any specific identification of her disability for reasons both of privacy and a concern this will lead to "labelling". The complainant had not identified her disability at any earlier stage to the respondent and nor did she do so at the inquiry. I note that Mr Litt in his evidence has advised that the complainant's prognosis in terms of the treatment of the symptoms of her disability is good, and I have made findings concerning the complainant's symptoms. I note further that the University has not challenged the complainant's assertion of her disability either during the course of the negotiations relating to accommodations in various subjects which occurred in 1995, nor at this inquiry.
My findings have indicated that in respect of the negotiations for accommodations in Language/Arts II in 1995 there were considerable delays, particularly between the date on which the complainant advised her disability and initially sought an extension from Ms Hancock (21 March 1995), and the date on which she provided the medical information which she was told was required (8 May 1995). The complainant complained of the protracted time that these negotiations took and suggested that the length of time taken by the negotiations negated the value of the accommodations which she agreed she did obtain. I accept the complainant's statement that it was difficult for her to obtain medical information "overnight", and I also accept that because of her disability it may have been more difficult for her to make appropriate arrangements to obtain the relevant medical information and consult with other relevant persons. Nevertheless, it is my view that the University is not responsible for this delay as the complainant had not advised Ms Hancock in any detail of the nature of her disability and clearly the University could not have obtained the medical information regarding the complainant which it required. I also note that in this context the complainant had not identified herself as a student with a disability on the enrollment form and accordingly this was Ms Hancock's first notification of the complainant's disability. I note that Ms Fox had been informed by the complainant that she had a disability in 1994 but there is no evidence to suggest that Ms Fox did, or should have, informed anyone else of this advice from the complainant. I further note that when Ms Fox was advised of the complainant's disability she was given no details relating to its nature or it symptoms other than those relating to poor short term memory.
The complainant's assertions that the establishment of the accommodations took a very lengthy period of negotiation essentially focuses on the fact that it was not until July 1995 that she was advised that the paper had been re-marked. She also said that there had been a lack of communication with her as to the operation of the 20% late penalty, and indeed it was part of her complaint that the penalty was imposed even though she provided medical support for the lateness for her submission. The complainant said there were further lengthy negotiations to have this 20% penalty removed and effectively negotiations continued until she was advised that she had failed in September 1995. I do not accept this lengthy time frame relates in a specific way to the accommodations being sought by the complainant. It is certainly the case that there were protracted discussions relating to the accommodations sought and the complainant's performance in Language/Arts II in 1995, but it is my view that all accommodations sought by the complainant, as communicated to Ms Hancock by Ms Madsen on 12 May 1995, were accepted by Ms Hancock very promptly. These were quite significant accommodations both in terms of extensions for submissions of assignments and the reweighing and reorganisation of assessment for the whole subject. Even after this the complainant sought further accommodations in terms of more extensions, and she did not submit the further assignments or sit for the examination in the subjects. I accept that her failure to submit the other assignments probably related to her worsening state of heath as a result of her disability which led to her hospitalisation in late June. However, I also accept that the University was unaware of this until the time of the hearing and accordingly was unable to take these circumstances into account. Further I do not accept the complainant's evidence, which is contradicted by that of Ms Tonkin and Ms Hancock, that the second and subsequent assignments would not be able to be undertaken unless the first assignment was passed. I note that the extended submission dates were set after 12 May, and 26 May at which time the complainant's first assignment had been marked and failed. Accordingly, it was clear that Ms Hancock was of the view, even if a student had failed the first assignment, that the second and any subsequent assignments could be undertaken and submitted. Ms Turner also suggested that the second assignment could not be undertaken if the first assignment had not been passed, as it built on work done for the first assignment: this was consistent with the complainant's evidence but I do not accept that it was the case, other than that it was most likely the case that all work undertaken in the course builds upon work already done. In that sense the second assignment built on the first, and failing the first assignment would probably make it more difficult to successfully approach the second assignment, both in terms of understanding and of morale for the student, but this is not the same as saying that if the first assignment was failed the second or any subsequent assignment could not be undertaken.
I have made a formal finding on the basis of the evidence of Ms Tonkin and Ms Hancock, that as a fail paper the complainant's first assignment in Language/Arts II had already been double marked, and I note that this was as a matter of routine. This was prior to her request to Professor Trent to arrange a double marking. Under these circumstances I note that the paper was in the end marked three times and each time it failed. The complainant gave evidence that she had never been advised that the 20% late penalty had been removed and she submitted that if the penalty had not been imposed it may have been the case that she would have passed. However, I note that this is not the case: Ms Hancock was quite clear in her evidence that the 20% penalty was imposed after a mark had been arrived at by the original marker and that this mark was already a fail: and I further note that in Professor Trent's advice to the complainant on 14 July 1995 she advised that the paper had been re-marked and was still a fail, even with the 20% penalty removed. I also note that the University has no policy for a viva voce examination in respect of failed written assignments, and that Ms Hancock indicated that such a process would be most unusual and would only occur where it was clear that the student had a good understanding of the material covered but had perhaps misinterpreted the question, so that there was ambiguity which could be addressed in the viva voce examination. Ms Hancock said that neither of these factors were present in relation to the complainant's paper.
There was also a considerable amount of evidence given in respect of Language/Arts II undertaken by the complainant in 1994 with Ms Fox. Ms Fox gave a very detailed account of the episode on 30 March 1994 when the complainant had been unable to perform the "Sailaway" ballad without a book and she emphasised that she had such a clear memory because the occurrences at the class had been so extraordinary as to make them very memorable. I prefer Ms Fox's account of the events on that day to that of the complainant where they conflict. The most central aspect of conflict between the two accounts is the complainant's assertion that she said to Ms Fox in the class that she was unable to perform the ballad without the book and that she would explain in private her reasons for this. Ms Fox said that there was no such statement and I accept her evidence. I also accept Ms Fox's account of the general tenor of the conversation and as it occurred in the class, and the consternation and embarrassment which it caused.
I also accept Ms Fox's evidence that she did not have a "no-extensions" policy in Language/Arts II in 1994. I note that her evidence was that she made it very clear to students that she expected assignments to be submitted by the due date, and that she did grant extensions but only in very exceptional circumstances. I do not accept the complainant's evidence on this point where it conflicts with that of Ms Fox and I do not regard the evidence of Ms Turner in this respect as of any assistance.
With respect to the meeting between Professor Trent and the complainant in the company of Ms Finch, I preferred the evidence of Professor Trent where it conflicts with that of the complainant or Ms Finch. On the whole my view is that Ms Finch's evidence accords fairly closely with that of Professor Trent. I note that Ms Finch made it clear in her evidence that although there was discussion of occupational suitability and possible alternative courses of study to which the complainant could transfer (with which evidence Professor Trent agreed), it was not suggested that the complainant was studying "for therapeutic purposes", and Ms Finch said that "everyone was treading very carefully as one does when one is dealing with someone with a psychiatric disability". Ms Finch's evidence was that uppermost in her mind, and she assumed the complainant's at the time of the meeting, was the issue of preclusion from re-enrollment. Ms Finch said that she "gained the impression" that it was impossible to have the accommodations that the complainant sought to the Teaching Practicum because of the requirements of the Teachers Registration Board. Ms Finch said that the complainant and Professor Trent appeared in her view to be somewhat at cross purposes because each wanted a different outcome. Ms Finch's evidence was largely of the impressions that she had and it was clear from her evidence that she did not then or indeed at the time of the hearing have a clear knowledge of the events which had occurred relating to the accommodations sought by the complainant, or indeed what actions the complainant had taken in respect of those accommodations and this complaint.
Nor have I made any findings relating to the evidence from Ms Hancock and Ms Fox concerning discussion of the complainant generally amongst staff. Ms Hancock's evidence was that there had been some discussion of the complainant and that she was regarded as a "different student": Ms Fox gave evidence that the complainant had "a reputation" of "being very well read in the statutes", and as "a problem student", and that there had been discussion of difficulties concerning the complainant among other members of staff. She gave no details of those discussions or of the matters to which they referred. There is no other evidence before me as to the nature of such discussions or who other than Ms Hancock or Ms Fox have participated in any such discussion. There is no evidence before me to suggest that such discussions related to the complainant's disability, or to her behaviour arising as a result of her disability, or were among members of staff who had any awareness of the complainant's disability, other than Ms Hancock or Ms Fox. Nor was there any evidence that Ms Hancock or Ms Fox discussed the complainant's behaviour after they became aware of her disability, or in the context of her disability or behaviour resulting from her disability.
Further, I make no findings relating to the behaviour towards the complainant of Dr Slee. Although Ms Hancock referred to Dr Slee by name in the additional material which she provided to the Commission on 10 July 1996 and referred to her concerns in her original complaint, she presented no oral evidence concerning Dr Slee. Nor did the University provide any evidence concerning Dr Slee and Dr Slee himself did not give evidence. The complainant has provided no details as to any discrimination in respect of either of the subjects taught to her by Dr Slee, and I note that she did not seek any accommodations in relation to Dr Slee's subject in 1993, which she passed and she has simply made an assertion that Dr Slee "made him-self unavailable" to her in 1994 because of the nature of her disability. She has presented no evidence at all in support of either assertion relating to Dr Slee and I am unable to make any findings concerning him.
At the inquiry the complainant was in general very impressive in the presentation of her evidence, in cross-examining the respondent's witnesses, and in the general presentation of her case. In respect of her evidence there was some confusion with respect to dates, particularly in relation to the events relating to Language/Arts II in 1995, but I did not regard this as material, especially bearing in mind the complainant's disability and that she was quite ill, resulting in hospitalisation in the middle part of 1995, therefore likely confusing in her own mind the sequence of events, as some of these events occurred whilst ill or subsequently hospitalised. In the oral presentation of her case and evidence the complainant's demonstrated some difficulties in being objective about the circumstances: this is not surprising and is does not necessarily reflect on the complainant's general credibility, but it does influence my view where her evidence in relation to specific processes and dates conflicts with that of the respondent's witnesses. I appreciate the complainant's submission that the respondent's witnesses were all its employees, but nevertheless I accept that these witnesses were all professional and objective and their evidence appeared to me to be credible. There were indeed very few variations in the evidence presented by the complainant and that of the respondent's witnesses: by and large, apart from differences in detail the circumstances relating to the complainant's complaint are documented, and the differences are matters of impression and interpretation rather than fact.
I accept Mr Litt's evidence relating to the complainant's medical condition and its symptoms and treatment, and I note that the respondent did not challenge it. However, I accept the respondent's submission that there is no basis to give any credibility to Mr Litt's statements relating to the complainant's academic capabilities or likely abilities as a student teacher or a teacher. I am unaware that Mr Litt has any knowledge or qualifications in respect of such matters and his evidence on those issues is therefore of no value. This does not effect the credibility of his evidence concerning the complainant's disability and symptoms.
With respect to the evidence of Ms Finch, Ms Turner and Mr Sewell, it is my view that it takes the matter very little further. Ms Finch was very qualificatory in her evidence and she emphasised that much of her impression of the meeting with Professor Trent was merely that: impressionistic, with much "reading between the lines". In substantive terms neither Ms Turner or Mr Sewell added very much.
I accept Professor Trent and Dr Baker as expert witnesses on the necessary aspects of the curriculum of the Bachelor of Teaching Degree and in particular in respect of the nature of the final Teaching Practicum. Further I accept them as expert witnesses in respect of the appropriate means of teaching and assessing the Teaching Practicum.
Where there is a conflict I prefer the evidence of Ms Hancock, Ms Tonkins, Professor Trent and Ms Fox to that of the complainant because of their clarity of memory of events (this is in particular in relation to Ms Fox and Professor Trent), and because, in the case of Ms Tonkin and Ms Hancock they, are either giving accounts of arrangements formally in place, or supported by extensive documentation.
6. THE LAW
The relevant legislative provisions are set out above. In the course of the inquiry some other issues were raised: in particular the complainant referred to s.5 as relevant to her complaint, and the respondent in its submission raised some questions relating to the scope of this inquiry and the precise complaints which are its subject.
6.1 Identification of complaint
On 2 October 1996 I determined that the complaints the subject of this inquiry relate to ss.6 and 22 of the Act. Those complaints are set out in the complainant's original complaint of 23 October 1995 which raised two issues: the inadequacy of training provided by the respondent to its employees in terms of information and training relating to disability discrimination and the respondent's obligations under the Act; and the complainant's alleged inability to gain "reasonable adjustments" in respect of her studies. The complainant's complaint was that her efforts in this respect "have been mostly unsuccessful, and extensively negotiated with unsatisfactory outcomes." I also determined that the appropriate respondent was the Flinders University of South Australia rather than individuals who were subsequently named in information lodged with the Commission by the complainant on 10 July 1996. In that information the complainant had raised the issue of harassment on the basis of her disability, and provided information concerning a number of identified members of the respondent's staff. At the same time she submitted that her complaint ought also encompass ss.37 and 39 of the Act. In my determination of 2 October 1996 I considered that the complainant's complaint which had been referred to the Commission for an inquiry did not involve any complaints against individual members of the respondent's staff and that it was very explicit in its original terms: and it was that complaint which had been referred to an inquiry, and therefore the only complaint in respect of which I had jurisdiction. My conclusion was that the complainant's complaint before me for inquiry is limited to a complaint against the University and related to the issue of the University's failure (in the complainant's view) to appropriately and adequately ensure that its staff could deal properly with students with disabilities, and in respect of the alleged difficulties in obtaining appropriate accommodations for her disability in certain courses she undertook. My conclusion was that this complaint could not extend to complaints against individuals in terms of ss.37 and 39 of the Act. However, I made it clear in that determination that I would hear evidence concerning the matters which the complainant raised in her information of 10 July insofar as these matters provided evidence relating to her original complaint. On this basis evidence was heard concerning the events referred to in the complainant's letter of 10 July 1996, and the "harassment" which the complainant alleged therein was part of the evidence which she presented in support of her complaint that the respondent had engaged in unlawful discriminatory behaviour towards her.
On this basis and for the detailed reasons that I gave in my determination of 2 October 1996, the complaint presently before me does not include complaints against any named individuals. The complainant in her submission invited me to make specific findings which named individuals had breached provisions of the Act: in particular that Philip Slee and Mem Fox engaged in actions which constituted a "breach of the Act". The section of the Act breached is not identified in the complainant's submissions.
There was no separate complaint before me concerning either Dr Slee or Ms Fox. Allegations were made in the complainant's original complaint that the behaviour of Ms Fox and Dr Slee respectively constituted examples of the discrimination of which the complainant complained against the University. In the complainant's further information of 10 July 1997 Dr Slee and Ms Fox were named. However, I determined on 2 October 1996 that the complaint referred for inquiry was not a complaint against Dr Slee and Ms Fox personally but was a complaint against the University and the University was identified as the sole respondent to that complaint. Accordingly although I take into account the evidence concerning Dr Slee and Ms Fox as part of the body of evidence relating to the complainant's complaint, consideration of that evidence will not in any event lead me to any determination relating specifically to those named individuals. Any determination made will relate to the complainant and the respondent in this case, and neither Dr Slee nor Ms Fox fall into those categories.
The complainant also made submissions concerning her South Road Primary School Teaching Practicum in 1996, and "privacy and disclosure". In respect of the 1994 Teaching Practicum the complainant submitted that I ought to make a finding that comments made by Dr Baker on her Practicum report "are in breach of the Act". In respect of "privacy and disclosure", the complainant invited me to make findings that the University had breached her right to privacy; failed to ensure that staff comply with its policy and action plan on students with disabilities; that she had been subject to detriment in that she had developed a reputation as a result of those breaches of privacy; and that the University ought to take positive action to correct the detrimental reputation that the complainant said she had developed as a result of her disability and the staff "grapevine". The University submitted that neither of these matters were subjects of the complainant's original complaint which has been referred to at this inquiry.
I accept the submissions made by the University in this respect. I have already indicated that in my view the terms of the complainant's complaint were very clear. The complaint referred to in the complainant's written submissions subsequent to the inquiry relating to Dr Baker and the 1994 Practicum is one which is not referred to in the complainant's additional information of 10 July 1996, although that document does refer to Dr Baker in respect of another matter. Nor is the complaint about "privacy and disclosure".
The complainant's submissions related to evidence which was discussed at the inquiry and which I take into account. However, I do not accept her submission that separate from her original complaint these two matters constitute proper subjects of inquiry presently before me.
6.2 Section 4(1): "disability"
The respondent did not contradict the complainant's assertion that she had a disability. The complainant did not provide any evidence at the inquiry as to the precise nature of her disability but she did describe some of its symptoms. Her evidence was supported by that of Mr Litt, her treating specialist, and the written report of Dr Rozenbilds. I have found that the complainant does have a disability and I am satisfied, despite the lack of precise evidence relating to the nature of her disability, that it is a disability which comes within the definition provided in s.4(1): that is, that the complainant has a disability in the nature of "a disorder, illness or disease that effects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour". It is possible that the complainant's disability also comes elsewhere within the definition of disability, as a "disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction", but there is insufficient information before me to make such a precise distinction. In any event I am satisfied that whatever the nature of the complainant's disability it falls within the meaning of disability under the Act.
6.3 Section 5: direct discrimination
Section 5 of the Act makes unlawful direct discrimination against a person on the ground of disability.
"5. (1) For the purposes of this Act, a person ("discriminator") discriminates against another person ("aggrieved person") on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
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 5 was referred to by the complainant in her opening statement at the inquiry and by the respondent in submissions. It is clear that pursuant to s.5 the complainant must establish that the respondent, because of her disability, treated her less favourably than it would have treated a person without her disability. Section 5 in particular appears to have been relevant to the issue of the negotiation of accommodations for Language/Arts II in 1995.
The complainant did not present any evidence as to how other students were treated in order to establish a comparator for the way in which she was treated. The only evidence which touched on such a matter was Ms Turner's evidence of her difficulties in obtaining an extension of work in Language/Arts II in 1995, and the complainant's assertions that she had no difficulties obtaining accommodations in other subjects on the basis of being a single mother, but she had great difficulty in doing so as a person with a disability. Clearly none of this evidence can be regarded as of much weight in relation to the specific allegation.
The respondent submitted that there could be no unlawful discrimination such as that referred to in s.5 in respect of the negotiations for accommodation in Language/Arts II in 1995 as the University treated the complainant more favourably in its view, as a result of her disability, because it provided her with extensive accommodations by way of several extensions for due work and a complete change in the assessment scheme for her.
It is my view that s.5 is not relevant to the complainant's case. The relevant assessment scheme and various University procedures are not susceptible of an argument of direct discrimination. Indeed the schemes are couched in language of formal equality so each student, regardless of his or her circumstances, has the same curriculum and assessment scheme with which to deal. On its face there is no discrimination, nor has the complainant presented any evidence before the inquiry to suggest that in a formal way she was treated any differently. Indeed the complainant's complaints are that because accommodations were available to students with disabilities it was this that led to increased difficulties for herself. That is, her difficulties were, on her evidence, with the amount of time it took to negotiate the accommodations in Language/Arts II in 1995 and in the nature of the accommodations granted in that subject, and in respect of those proposed for the final Teaching Practicum. These accommodations were of no relevance or interest to a student without disabilities. Insofar as there may be some suggestion that it was the particular nature of the complainant's disabilities that led to the difficulties which she alleges she encountered, it appears to me that s.5 can provide her with no assistance. At most it seems to me that the complainant's complaint is that because she had a disability, in order to have that disability accommodated she was treated in a way in which she would not have been treated if she had not had that disability and therefore did not require the accommodation.
This consideration directs attention to the reference in s.5(1) to treating the aggrieved person "less favourably" than the way in which a person without the disability would have been treated. I am of the view that s.5(2) of the Act covers this situation.
There is no evidence before me to suggest that in taking into account the different accommodations which the complainant required because of her disability she was treated any differently from the way in which a person without that disability would have been treated. The complainant did not present any comparative evidence and there is nothing in the evidence presently before me which in my view can sustain any other arguments.
6.4 Section 6: indirect discrimination
The terms of s.6 are set out above. However, it is important to note that s.6 requires four factors to be established:
(1) that the discriminator requires the aggrieved person to comply with the requirement or condition;
(2) that a substantially higher proportion of persons without the disability comply or are able to comply with the requirement or condition;
(3) the requirement to comply with the requirement or condition is not reasonable having regard to the circumstances of the case;
(4) the aggrieved person does not or is not able to comply with that requirement or condition.
Section 6 makes it clear that all four of these aspects are cumulative. This means that in order to establish her complaint under s.6, the complainant must present evidence which addresses each of these four requirements.
6.4.1 Was the complainant required to comply with the requirement or condition?
I am satisfied that the respondent did require the complainant to comply with a requirement or condition, in that in order to ultimately obtain her degree of Bachelor of Teaching, the complainant had to pass the required subjects. To do so she had to perform satisfactorily in the assessment dealing with the particular curriculum in each subject. It was compliance with the curriculum and the assessment requirements associated with each subject which in my view constitutes a requirement or condition which comes within the terms of s.6. That is, to pass Language/Arts II in 1995 the complainant had to perform satisfactorily in the assessment (including the deadlines) as agreed between her and Ms Hancock; and to satisfactorily complete the final Teaching Practicum, the complainant is required to perform in the way prescribed by the respondent, taking into account the accommodations for her disability which had been agreed.
6.4.2 Section 6(a): "With which a substantially higher proportion of persons without the disability comply or are able to comply"
The complainant did not provide any evidence with respect to this aspect of s.6. The respondent submitted that under those circumstances I ought to make a finding that no discrimination pursuant to s.6 could be established.
However, given that I have accepted the evidence presented by the complainant and Mr Litt as to the symptoms of the complainant's disability, it appears to me that I could safely assume that other persons without those symptoms are more likely able to comply with the University's requirements than was the complainant. Under these circumstances I am satisfied that a substantially high proportion of persons without the symptoms of the complainant's disability would be able to comply with the course requirements without any accommodation such as sought by the complainant.
6.4.3 Section 6(b): "Which is not reasonable having regard to the circumstances of the case"
The complainant's argument was that the requirements with which she had to comply in respect of her studies were not reasonable having regard to the circumstances of the case for two reasons: first, that negotiating and obtaining appropriate accommodations was protracted, lengthy, exhausting, and in her view detrimental to her health because of her disability; and in the second place, that the accommodations eventually achieved were inadequate to accommodate her disability. That is, the complainant argued that such accommodations that the University provided did not address her inability to comply with the University's requirement or condition. The respondent's view was that with respect to the accommodations in Language/Arts II in 1995, all accommodations provided to the complainant were reasonable in the circumstances (the respondent submits, "more than reasonable"), and were provided promptly; and in respect of the final year Teaching Practicum, all accommodations sought were granted, other than the sequence of the part time teaching. The University submitted that there was no evidence to suggest that the topic and course requirements (including the accommodations) in the final year Teaching Practicum were not reasonable in the circumstances and that the expert evidence before the inquiry indicated that the requirement was reasonable and appropriate.
With respect to Language/Arts II in 1995, it is my view that the requirements for assessment by the University were reasonable in the circumstances. The requirements of the University in the complainant's case included the accommodations which were agreed to in May and June of 1995, giving the complainant various extensions for the written work required and varying and re-weighting the assessment scheme to accommodate her disability. It is my view that the requirement of the University was that the complainant submit her assessment papers by the revised dates, and sit for a re-weighted examination on 21 June. Not only, however, did the complainant have to submit the assessment, but it had to reach a particular standard in order to pass the subject. This too is one of the requirements of the University. The complainant suggested that the imposition of the 20% penalty on her first assignment was discriminatory on the basis that the lateness of the submission was a consequence of her disability. I am not inclined to accept this submission, but even if I did so it appears to me that the issue of what is reasonable in the circumstances needs to be addressed: in any event, however, I am satisfied that the 20% penalty was eventually removed from the complainant's assignment, but the assignment failed from the outset, not taking into account the 20% penalty. In of those circumstances the argument on that point cannot succeed.
With respect to the Teaching Practicum I am satisfied that the course requirements which were required to be complied with were reasonable in the circumstances of the case. I accept the evidence of Professor Trent and Dr Baker that the maximum inroad into those requirements consistent with maintaining academic integrity had been granted to the complainant in that she was permitted to undertake the Teaching Practicum on a part time rather than a full time basis. I am satisfied that all other accommodations sought by the complainant and requested by her treating specialist Mr Litt were granted, in particular once the complainant explained that what she meant by "personal time and space", was a desk of her own. Under these circumstances it is my view that the requirements for the final year Teaching Practicum, taking into account the accommodations for the complainant's disability, were reasonable in the circumstances of the case.
In reaching this conclusion I accept the evidence of Professor Trent: the University, in requiring compliance with a requirement or condition related to the subjects presented for a degree in Bachelor of Teaching, must structure the curriculum of those courses and assess them with integrity so that those on whom the degree is conferred can hold themselves out as having the appropriate knowledge, experience and expertise implicit in the holding of the particular degree. It is (in part) in this respect that the University must maintain the academic integrity of all its courses and although it must provide appropriate accommodations to persons with disabilities so that they are not thereby precluded from undertaking such studies as they choose at University, this does not of course mean that the University is obliged to forgo the academic requirements of its courses for people with disabilities. It is these considerations which much be taken into account in considering what is "reasonable having regard to circumstances of the case". The circumstances of this case include the consideration that the requirement or condition relates to assessment leading to the conferral of a degree. Among the circumstances to be taken into account therefore are those which relate to the issue of academic integrity. This is not to accept the complainant's argument that the University is assuming that she wishes to, or will, become, a full time teacher: it is the conferral of the degree with which the University is concerned. Further, however, the maintenance of its academic integrity on a broad basis is absolutely fundamental to any University's overall function and credibility.
I am satisfied that the requirements or conditions in respect of both Language/Arts II in 1995, and those arranged for the final year Teaching Practicum, were reasonable having regards to the circumstances of the case.
6.4.4 Section 6(c): "When the aggrieved person does not or is not able to comply"
The complainant asserted that she was not able to comply with the requirements or conditions prescribed for Language/Arts II in 1995 even taking into account the accommodations that were made available to her, and that she would not be able to comply with the requirement that she undertake the Teaching Practicum on a four consecutive day basis.
The complainant's assertion with respect to Language/Arts II in 1995 is not entirely supported by the other evidence. It is clear that in 1995 the complainant was significantly affected, especially in June, by the symptoms of her disability, and I accept that because of her disability she was unable to comply with the requirements to submit her final assignments and sit the examination. These were required (26 June and 21 June respectively) in a period very close to and indeed partly overlapping her hospitalisation. However, there is other clear evidence before me that the complainant did not comply with requirements because of the quality of the work that she submitted on 8 May 1995. The complainant did not suggest that the quality of this work related to her disability: her evidence was that the lateness of the submission was because of her disability and that the failure that was recorded for that assignment was because of the 20% penalty imposed, not because of the quality of the work. I am satisfied that the assignment received a fail mark in its own terms regardless of the 20% penalty, and I accept the documented evidence from Professor Trent that the 20% penalty was removed and the paper nevertheless failed on its re-mark. Under these circumstances it appears to me very difficult to make any assessment as to whether the complainant was unable to comply with the requirement because of her disability.
The complainant's evidence was that she would be unable to comply with the requirement to engage in the Teaching Practicum on four successive days each week over a period of ten weeks. She was supported in this evidence by Mr Litt. Because of my findings with respect to s.6(b) above, any findings on this point are of no significance. However, again it is difficult to make such an assessment in this case. The complainant's two previous Teaching Practicums had been successful. These had entailed continuous days teaching over a shorter period. There were difficulties in respect of the complainant's second Teaching Practicum but these appear not to have been insurmountable (and it is not clear that they related to her disability). The complainant conceded that once she were engaged in the Teaching Practicum it may be that she would be able to manage the circumstances quite well, but she required the accommodation to enable her to have confidence in approaching the work. It is difficult to access whether a person is not able to comply with a requirement when that requirement has not yet been imposed and there is no equivalence in the past to compare it with. In any event I need make no findings on this aspect of the matter.
6.5 Section 22: Discrimination in the provision of education
The terms of s.22 are set out above. I am satisfied that the respondent constitutes "an educational authority" for the purposes of this section.
6.5.1 Section 22(1) Admission "as a student"
The respondent submitted that the complainant had attempted to bring her complaint relating to the final year Teaching Practicum within the terms of s.22(1), but that s.22(1) could not cover this aspect of the complainant's complaint.
I am satisfied that s.22(1)(a) and (b), where it refers to "admission as a student" and "to admit the person as a student", is referring to admission of the student at the point of enrollment with the educational authority either on a general basis, or in a particular subject, rather than in determining if a student has or is prepared to undertake requirements of particular part of the course. I am satisfied that the respondent has not refused or failed to accept the complainant's application for admission as a student in the final year Teaching Practicum or that it has discriminated against her in the terms and conditions on which it is prepared to admit her as a student in that course. Rather the University has indicated it preparedness to accept the complainant as a student for the final year Teaching Practicum with certain accommodations which it has negotiated with her (not entirely to her satisfaction). It is the complainant's capacity to successfully to pass the course to which she either has been or will be admitted as a student which is the subject of her complaint. The complainant's complaint is that without the accommodations which she has sought she cannot undertake the course with any hope of success because of her disability. It appears to me that her complaint is not one that comes within the scope of s.22(1) for this reason.
6.5.2 Section 22(2)(a): Discrimination "by denying the student access, or limiting the student's access, to any benefit provided by the educational authority"
The respondent identifies two aspect of the complainant's case which it submits she sought to bring within s.22(2)(a): that the complainant found lecturers "a little more difficult to access" than some other students, and further did not get extensions "as easily as other students". The University submitted that there was no evidence to establish either of these allegations or to support discrimination contrary to s.22(2)(a).
I am satisfied that none of the complainant's complaints can come within the terms of s.22(2)(a). The complainant did not suggest in her evidence that she found it difficult to "access lecturers": rather, in her written statement of 10 July 1996 she alleged that Dr Slee had "made himself unavailable" to her, and that she had been unable to contact Ms Tonkin in May 1995. She gave oral evidence concerning Ms Tonkin. There was no other evidence given in respect of Dr Slee or of this allegation and I am not satisfied that there is any basis upon which I can make any findings. With respect to the difficulty in contacting Ms Tonkin, I note Ms Tonkin's evidence that she received no message from the complainant in May 1995 although a message could have been left by a variety of means. No such message was left and given the variety of ways this could have occurred I am not satisfied that Ms Tonkin has been proven to be difficult to access. The complainant did not say how she had attempted to contact Ms Tonkin.
With respect to not getting extensions "as easily as other students", I am not satisfied there is any evidence before me to establish this. The complainant's evidence was directed at the difficulties she had in obtaining extensions, rather than that other students found it easier. There is no evidence before me that other students with or without disabilities, found it easy to get extensions, and indeed the only other student who gave evidence, Ms Turner, referred to her own difficulties and that of other students in obtaining extensions from Ms Fox, albeit in a different year than that in which the complainant had been enrolled.
I am satisfied that no breach of s.22(2)(a) has been established.
6.5.3 Section 22(2)(b): Discrimination "by expelling a student"
The University submitted that the complainant was suggesting a breach of s.22(2)(b) in alleging that she had been expelled from Language/Arts II in 1994 because of her inappropriate behaviour with the "Sailaway" class, and submitted that this was not the case.
I am satisfied that the complainant was not expelled from this class. I am satisfied that she chose to withdraw from the subject because she had already failed a compulsory assignment, and she chose to withdraw (on her own evidence) because it was the final day on which she could withdraw from the subject without incurring a HECS bill. Further I note that at the time the complainant's assignment was assessed as a fail Ms Fox was unaware that the complainant had any disability. The altercation which occurred in the "Sailaway" class on 30 March 1994 was prior to Ms Fox being made aware of the complainant's disability. There was some conflict in the evidence as to whether the complainant chose to leave the class or whether Ms Fox required her to leave: I prefer Ms Fox's account of this event and am satisfied that the complainant chose to leave the class rather than attempt to present the work without the book as a prompt. I am satisfied that the complainant was not "expelled" from that class, even if I were of the view that s.22(2)(b) had such a narrow application. However, under the circumstances I do not need to address this issue. I accept the complainant's evidence that her behaviour in the class was as a result of her disability, but this was a disability of which Ms Fox was then unaware, and under those circumstances I do not accept that there could have been any discrimination against the complainant on the ground of her disability.
6.5.4 Section 22(2)(c): Discrimination "by subjecting the student to any other detriment"
The complainant's primary evidence relating to this provision appears to be her assertion that she was subjected to detrimental negotiations in order to obtain accommodations for her disability, to which other students were not subjected.
There is no evidence that other students with disabilities were provided with accommodations for their disability without requirements for information, medical evidence and other negotiations. It is true that if the complainant did not have a disability she would not have been engaged in the negotiations for accommodations which she asserts were themselves detrimental. The detriment which she asserts arose from the additional stress to which she said she was subjected because of the University's requirements for medical and other information from her, and because of the time over which the negotiations were spread. However, this consideration raises the central issues in s.5 and 6: that is, that they must amount to "less favourable" treatment on the basis of the disability (s.5), or must impose a requirement in the circumstances described by s.6 which is not reasonable in the circumstances of the case.
The University submitted that the complainant's negotiations were not detrimental because the negotiations led to the arrangement of accommodations for her disabilities as she had sought, except in respect of one aspect of the accommodations sought relating to the Teaching Practicum. The University also submitted that insofar as the negotiations were stressful for the complainant and they have led to some other problems with her health, this was an assertion which was not supported by any other evidence. The respondent further submitted that insofar as it was the delay which constituted the additional stress, this was largely brought about by the complainant, as the University had acted promptly on her requests.
I accept that because of her disability, which made it necessary for her to seek accommodations so that she was not disadvantaged as a consequence of her disability, the complainant had to undertake negotiations and discussions which did not have to be undertaken by other students without such a disability. Those negotiations may have well have been stressful and I am conscious of the complainant's evidence that she was reluctant and anxious about discussing her disability. However, there no evidence that establishes that the University subjected the complainant to any such detriment: the evidence is that the University made available accommodations for persons with disabilities so that their disabilities did not preclude them from engaging appropriately in their studies. That the complainant chose to avail herself of such accommodations as might be negotiated does not mean that the process of negotiation was a detrimental process imposed on her by the University. I am conscious of the fact that the complainant's disability to a large degree may negate the notion of "choosing" to access accommodations for her disability: but I also note that the complainant has on occasion "chosen" not to seek accommodation for her disability and has successfully undertaken various courses without such accommodations. Nevertheless the evidence is that in the course of the negotiations for accommodations in Language/Arts II in 1995 there was a single demand by the University, through Ms Hancock, for medical support relating to her disability. I accept the evidence of the University that the requirement for medical documentation was necessary both to assess the nature of the accommodations which might be appropriate, and also to establish a proper basis for the accommodation sought. The evidence was that as soon as that medical evidence was provided, the accommodation requested was granted: the medical certificate was provided on 8 May and on the basis of this, the late assignment, (which would otherwise not have been marked) was marked, and further accommodations that were specifically requested on 8 May were agreed to on 9 May. Subsequent extensions and re-weighting of the assessment was also arranged within a week of the request.
The purpose of the University's request for the medical information was to consider whether the extension sought should be granted: in my view it can hardly be regarded as a detriment to require the complainant to provide the information, and further there is no evidence to suggest that the request for the information had any relevance to the complainant's disability, as it appears from the evidence that any other student seeking an extension would also have been required to produce medical evidence, even if the basis for the extension sought was not disability but rather a passing illness.
In my view the lengthy negotiations which then followed and of which the complainant complained really related to the 20% penalty and the request of its removal and for a re-mark. I am satisfied that these issues do not relate to the complainant's disability.
Under these circumstances I am satisfied that there is no discrimination pursuant to s.22(2)(c) of the Act and that the University did not subject the complainant to any detriment in respect of the negotiations for the accommodation in Language/Arts II in 1995.
6.6 Training of Staff
The first part of the complainant's complaint related to an alleged failure of the respondent to properly train its staff to deal with students with disabilities, and an alleged failure to properly advise its staff of their obligations under the Act. I have made findings above as to the actions taken by the University in developing and monitoring policies and guidelines with respect to students with disabilities, and of the information made available to staff (and students), and training and support provided.
In my view the complainant's complaint in this respect is misconceived in terms of the Act. If it were the case that the complainant's complaint had been made against individual members of staff she may have been able to pursue her complaint against the University on the basis that the University was vicariously liable for any unlawful acts of its employees. Under those circumstances a failure by the University to provide appropriate training and information to its employees may well have been of relevance. Although Part III of the Act makes provision for "action plans", and s.60 provides that "a service provider may prepare and implement an action plan" (s.59 provides that an educational institution is for the purposes of s.60 "a service provider"), this is not compulsory nor an obligation under the Act. In any event I am satisfied that the respondent has prepared and implemented an action plan within the meaning of s.61 of the Act.
However, even were it the case that no such "action plan" had been developed by the respondent any failure by the University to inform, advise or train its staff in relation to dealing with persons with disabilities is not discrimination within the meaning of ss.5, 6 or 22 of the Act.
For the reasons given I am satisfied that the complainant's complaints cannot be sustained under the Act. Her circumstances clearly demonstrate many of the difficulties which persons with disabilities may face but I am satisfied that she was not discriminated against directly or indirectly by the respondent on the basis of her disability. I am satisfied that the complainant's difficulties in Language/Arts II in 1994 occurred because she submitted an assignment of inadequate academic quality and therefore failed the assignment, and then because of her disability, as yet undisclosed to her lecturer, was unable to perform part of her class work. However, the complainant chose to withdraw from that subject because she had failed a compulsory piece of the assessment. She did not seek an extension or to re-submit that assignment. None of these difficulties resulted from discrimination on the basis of her disability, although they may well have resulted from her disability itself.
With respect of the complainant's difficulties in Language/Arts II in 1995 I am satisfied that she obtained all the accommodations for her disability that she had requested. I am satisfied these accommodations were granted with minimal delay by the respondent, but that the complainant's circumstances were made more difficult by the deterioration in her health leading to her hospitalisation in June. The respondent was unaware of this deterioration and hospitalisation. The subsequent protracted discussions in the latter part of 1995 related not to accommodations for her disability but to the re-marking of her paper.
With respect to the unsatisfactory (in the complainant's view) resolution of the negotiations for the accommodations in the Teaching Practicum, I am satisfied that the University has made such accommodations as can be made that are consistent with the academic integrity of the course. Under these circumstances although the complainant considers she will not be able to comply with the requirements, it is my view that the requirement imposed by the University, that is that there be four successive days of teaching in the Teaching Practicum, is reasonable in the circumstances of the case.
Accordingly, pursuant to s.103 of the Act I dismiss the complaint the subject of this inquiry.