Mrs Cowell and Fleur Cowell v. A School
IN THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
DISABILITY DISCRIMINATION ACT 1992 (CTH)
JUDGE: KATHLEEN
McEVOY
No. H97/168
Number of pages - 20
DATE OF HEARING: 12 and 14 July; 6 October 1999
DATE OF DECISION: 10
October 2000
PLACE: ADELAIDE
#DATE 10:10:2000
Appearances
Complainants represented by: Mrs Cowell for herself
and on behalf of Fleur Cowell.
Respondent represented by: Lindy Powell QC instructed
by Mellor Olsson, Solicitors.
Decision
Complaint dismissed.
KATHLEEN McEVOY
REASONS
FOR DECISION OF INQUIRY COMMISSIONER
1. INTRODUCTION
Inquiry Commissioner Sir Ronald Wilson handed down a decision dated 23 March
1998 which made determinations concerning a complaint originally made by Mrs
Cowell on behalf of herself and her daughter (Fleur Cowell) ("the
complainants"), pursuant to the Disability Discrimination Act 1992 (Cth) ("the Act"), in August 1996. The Disability Discrimination Commissioner
had referred that complaint to the Commission for a public inquiry and that was
conducted by Commissioner Wilson in November 1997.
Commissioner Wilson made an order at the commencement of his inquiry pursuant
to section 87(1)(c) of the Act which suppressed the identity and names of the
complainants and the respondent. Part of the suppression order continues in
place and I shall refer to this matter below.
The subject matter of the original complaint related to allegations of both
direct and indirect discrimination by the respondent school ("the School") in
relation to Fleur's education while she was enrolled in the School, and of
allegations of harassment on the ground of her disability occurring towards the
end of her period of enrolment with the respondent School. Fleur suffers from
a disability within the meaning of the Act: she was diagnosed in 1987 with
Perthes' disease. This affected her right hip and caused mobility
difficulties. Fleur attended the School in 1994, 1995 and 1996, and during
that period underwent surgery to correct her hip problems as a consequence of
the disease. The complaint alleged Fleur was unable to attend some of her
classes during that period due to their location in the school premises: her
school "House" was located upstairs, and she was unable to manage the stairs.
Accordingly Fleur was located for much of her schooling downstairs in the
library. It was also alleged Fleur was prevented from attending school
functions and academically and socially disadvantaged by the actions of the
School. The respondent denied the allegations of discrimination and its view
was that it had done everything it reasonably could to accommodate Fleur's
disability. The respondent did not contest Fleur's assertion that she suffered
from a disability within the meaning of the Act.
Commissioner Wilson made a number of findings in his determination of 23 March
1998. In particular he dismissed Mrs Cowell and Fleur's complaint pursuant to
sections 6 and 22 of the Act that Fleur had been subjected to indirect
discrimination by the School: Commissioner Wilson's view was that no
requirement or condition had been imposed by the respondent on the complainant
with which a person without a disability would be more able to comply. This
complaint had been made in relation to Fleur's school House being located in an
upstairs classroom which Fleur was not able to attend because of her disability
which made it very difficult for her to deal with stairs.
Commissioner Wilson also dismissed the complaint of harassment contrary to
section 37 of the Act, finding the complaint not substantiated.
Commissioner Wilson found the complaint of direct discrimination contrary to
sections 5 and 22 of the Act to be substantiated. In making this finding,
Commissioner Wilson concluded that "the discrimination was of a relatively
minor nature, contributing to Fleur's subsequent distress and damage only in
the proportion of 25%". He made no finding as to quantum of compensation, as
it had been agreed at the hearing conducted by him that this matter would be
dealt with separately.
Subsequent to the handing down of this decision both the complainants and the
respondent sought judicial review of Commissioner Wilson's decision, pursuant
to the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the
ADJR Act"). The application for review was heard by Mansfield J in the Federal
Court of Australia on 15 May 1998 and he handed down his decision on 11
November 1998 (A School v Human Rights and Equal Opportunity Commission (No
2) and anor (1998) 55 ALD 93). Mansfield J set aside the decision of the
Commission that the School directly discriminated against Fleur contrary to
sections 5 and 22 of the Act, and the Commission's decision that the School was
responsible for a specified percentage of any damages suffered by Fleur.
Mansfield J referred back to this Commission for re-hearing the question of
whether the School directly discriminated against Fleur, and further to make a
determination as to any relief appropriate for Fleur, should such
discrimination be found to have occurred. Mansfield J also referred back to
the Commission the issue of a complaint of harassment alleged to have occurred
contrary to section 37 of the Act in relation to one of the incidents of
harassment alleged to have occurred at the start of Term 1 in 1995. Mansfield
J was of the view one of the allegations of harassment had not been dealt with
by Commissioner Wilson in his determination of the complaint, although evidence
had been given in relation to that particular allegation.
In all other respects Mansfield J upheld the Commission's decision.
Accordingly, this matter was listed for a further public inquiry which was
conducted by me in Adelaide pursuant to section 79 of the Act on 12 and 14 July
1999. Both parties then provided written submissions and a further day of
discussion of those submissions was held on 6 October 1999. Mrs Cowell made a
number of requests and submissions relating to this matter: in particular she
made submissions in relation to the suppression of the name of the
complainants; and further requested, on 8 March 2000, that I hear further
evidence by way of examination of a diary of Fleur's which had come to light
since the hearing and to provide to Mrs Cowell an opportunity to further
cross-examine a teacher at the School.
In relation to the application to re-open the evidence, having considered the
written submissions made by Mrs Cowell and the respondent, I decline to reopen
the matter. I do not consider that my decision will be assisted by the further
evidence sought to be adduced and it would be highly irregular to admit
evidence of this nature at this stage of the proceedings.
In relation to the suppression orders, Mansfield J, in separate reasons for
decision, also published on 11 November 1998, made the following
direction:
"Pursuant to section 50, [of the Federal Court of Australia Act 1976 (Cth)] I
make an order forbidding until further order the publication of the names of
the applicant and of the second respondent to these proceedings, and the names
of the teachers at the school who were involved in the matters about which the
complaint to the Commission was concerned, and the name of the House at the
school to which the younger respondent was attached upon her enrolment at the
school. I give liberty generally to the parties, and any person showing a
proper and sufficient interest in so doing, to apply to vary or discharge that
order."
In the course of the public hearing which I conducted in this matter, on
application by Mrs Cowell I indicated that I would vary the Commission's
suppression order to the extent that it would no longer apply to the identity
of Fleur. However, I indicated to Mrs Cowell that in my view she had still to
make application to the Federal Court of Australia to have Mansfield J's order
discharged or varied. Mrs Cowell has advised that she has made an application
to the Federal Court of Australia to vary the order of Mansfield J insofar as
it related to the second respondent to the proceedings before him and that, by
consent, this variation has been granted. I have been provided with a copy of
the order of Mansfield J dated 19 January 2000 to this effect. Under these
circumstances the order suppressing the publication of the names of Fleur and
Mrs Cowell no longer applies. I have made no order in relation to the name of
the School and the teachers and to this extent the Commission's suppression
order and that of the Federal Court continues to apply. However, in light of my
findings I can see no reason why the entirety of the suppression order should
not be lifted and I give either party leave to make application to the
Commission for this to occur. Of course, further variation of the order of
Mansfield J of 11 November 1998 would also be necessary.
At the inquiry the subject of this determination, evidence was given by two
further witnesses: one witness was a teacher at the school, and the other a
former student. For the present, in the light of the continuing order of the
Federal Court and in order to be consistent with Mansfield J's order, I will
direct that the names of both witnesses and anything tending to identify them
not be published. This direction is made pursuant to section 87(1)(c) of the
Act.
There are only two matters in issue before me at this inquiry. The issues were
identified by Mansfield J in the reference back to the Commission in his
judgment of 11 November 1998. The issues were clearly set out in his judgment:
first, whether the School directly discriminated against the complainants, and,
if so, was the appropriate remedy applicable in relation to the complainants.
The second issue is to make a determination in relation to the allegation of
harassment not determined by Commissioner Wilson.
At the inquiry Mrs Cowell argued strenuously I should consider broader issues
and in particular whether her complaint alleging indirect discrimination should
be reconsidered. Justice Mansfield clearly upheld Commissioner Wilson's
determination in relation to the complaint of indirect discrimination:
Commissioner Wilson found this complaint not to be substantiated and this was
upheld in the Federal Court action.
In relation to the proceedings before me, I determined it was unnecessary to
rehear evidence already the subject of a determination. Justice Mansfield
suggested this course of proceeding would be possible and desirable, pursuant
to section 94 or 98 of the Act. Section 94 does not seem to precisely apply in
relation to evidence given before this Commission in a previous public inquiry
of a complaint made under the Act, but I note section 98 of the Act provides
the Commission in conducting an inquiry is not bound by the rules of evidence,
and may inform itself in such manner as it thinks fit: s.98(1)(a), and further,
in s.98(1)(b) the Commission in conducting an inquiry "must conduct the inquiry
with as little formality and technicality, and with as much expedition, as the
requirements of this Act and a proper consideration of the matters before the
Commission permit". In reliance on section 98 of the Act I propose to take
into account all the evidence provided at the public inquiry into Mrs Cowell's
and Fleur's complaints before Commissioner Wilson. The parties did not have
any objection to this at the inquiry, although Mrs Cowell wished to call
further witnesses. There was some discussion at the inquiry as to which
witnesses Mrs Cowell would call, and indeed she proposed to call some witnesses
who in the event were unavailable. However, Mrs Cowell called two witnesses
who gave evidence at the inquiry: in the light of my direction above, that
consistent with the order of Justice Mansfield the names of witnesses before
this inquiry should not be published, those witnesses will be identified as Mr
PX a student, and Mr CY a member of the teaching staff of the School. I shall
deal with their evidence below.
Pursuant to section 85(2) of the Act I gave leave to both parties to have legal
representation before the inquiry. The complainants were not in the event
legally represented: Mrs Cowell explained she had sought legal support from the
Legal Services Commission but support by way of representation had not been
granted. Nevertheless, I am satisfied the continuing legal representation of
the respondent did not present any hindrance to the presentation of her case by
Mrs Cowell, and the respondent's legal representation was of assistance to the
Commission in the conduct of the inquiry. This was particularly the case given
the way in which the matter had proceeded to this further inquiry: the matters
before me were essentially legal matters referred back by the Federal Court.
Further, I considered it would be unfair at this stage of the inquiry to
exclude legal representation to the respondent, as from the commencement of the
proceedings before this Commission it had leave to be legally represented. I
note further there was no other representative within the School who had the
carriage of this matter, and in my view it would not have been possible for the
respondent to present its case at the public inquiry without legal
representation.
I note, as did Commissioner Wilson in his determination, that Mrs Cowell
conducted the representation of her complaint and the complaint she made on
behalf of her daughter with considerable skill and capacity.
2. THE LAW
The following sections are relevant to the complainants' case:
Section 5. Disability Discrimination
5(1) [less favourable treatment] For the purposes of this Act, a person
("discriminator") discriminates against another person ("aggrieved
person") on the ground of a disability of the aggrieved person, if, because
of the aggrieved person's disability, the discriminator treats or proposes to
treat the aggrieved person less favourably than, in circumstances that are the
same or are not materially different, the discriminator treats of would treat a
person without the disability.
5(2) [where different accommodation required] For the purposes of
subsection (1), circumstances in which a person treats or would treat another
person with a disability are not materially different because of the fact that
different accommodation or services may be required by the person with the
disability."
Section 22. Education
22(1)...
22(2) [Access to benefit, expulsion] It is unlawful for an educational
authority to discriminate against a student on the ground of the student's
disability or a disability of any of the student's associates:
(a) by denying the student access, or limiting the
student's access, to any benefit provided by the educational authority; or
(b) by expelling the student; or
(c) by subjecting the student to any other
detriment."
Section 37. Harassment in Education
37 It is unlawful for a person who is a member of the staff of an educational
institution to harass another person who:
(a) is a student at that educational institution or
is seeking admission to that educational institution as a student; and
(b) has a disability;
in relation to the disability."
3. THE EVIDENCE
I have commented above that I propose to take into account the relevant
evidence presented at the public inquiry before Commissioner Wilson. This is
the only evidence before me in relation to the complaint of harassment. In
relation to Mrs Cowell and Fleur's complaint of direct discrimination further
evidence was called by Mrs Cowell, but no further evidence was called by the
respondent. The respondent referred me to specific aspects of the evidence
presented before Commissioner Wilson and I take these into account. There had
been a very significant amount of evidence given before Commissioner Wilson and
the respondent made very detailed submissions concerning them. The respondent
also provided a schedule of the aspects of the evidence which it considered
relevant to its submissions and provided these to Mrs Cowell prior to
submissions being made at the inquiry.
3.1 Complaint concerning harassment.
In her original complaint, Mrs Cowell alleged Fleur had been subjected to
harassment in the course of her enrolment at the School. Commissioner Wilson
dealt with two allegations of harassment which were alleged to have been made
on or about 1 March 1996 when Fleur returned to school after a long absence.
Commissioner Wilson found those complaints of harassment not to be
substantiated, and his finding was upheld by Justice Mansfield. However,
Justice Mansfield concluded Commissioner Wilson did not deal with a third
allegation of harassment alleged to have occurred in the course of a maths
class in 1995. Justice Mansfield set out the evidence relevant to this given
by Fleur in the following account:
"In Term 1 in 1995, the incident of alleged harassment, contrary to s37 of the
DD Act occurred. AJ was transferred from one class group to another, so that
she could be taught a particular subject downstairs. She complained in
evidence that the teacher
"...didn't treat me well at all. He was quite rude. He asked me things he
knew I didn't know in front of the class. He always seemed kind of amused if
he knew I didn't know the answer, and I said that I didn't know it, or I got it
wrong. Yes, he just looked sort of a bit - yes, just amused.
...
At the start I didn't really understand what was going on. I didn't really
understand that I'd been bullied, but then I started to get really
disappointed."
The teacher concerned denied rudeness, and denied consciously asking Fleur
questions knowing she would be unable to answer, and that he showed any
amusement at her inability to answer questions. He pointed out that it is
routine to ask questions to determine whether a student knows a particular
topic, and to ascertain the foundation from which to build further learning.
The Commission did advert to this evidence briefly in the following passage
recording finding on facts:
"Unfortunately, AJ felt that it was all beyond her and it embarrassed and
upset her because she felt Mr S exposed her difficulty with the subject to the
rest of the class.""
Justice Mansfield's view was that "the Commission has failed to make a decision
on this aspect of the complaint".
I was referred to Fleur's evidence which related to this allegation of
harassment. In examination-in-chief Fleur said she was put into Mr S's maths
class which was at a grade higher than the one she had previously been in. She
found the work more difficult and she gave the evidence that Mr S "didn't treat
me well at all" referred to above. She further said she felt "really nervous"
and that she felt as though she would "get picked on or asked something I
didn't know" in Mr S's class. In cross-examination Fleur said "the whole
class" was present when Mr S was rude to her, and named several of the other
students. However none gave evidence. Mr S gave evidence he had taught Fleur
in Year 9 in 1995, having taught her science in the previous year. He gave
evidence he had been aware of Fleur's difficulties and the seriousness of the
illness from which she suffered, and that he was familiar with the difficulties
which Perthes' disease creates for a child. He gave evidence he had discussed
with Fleur the fact that he knew another person (also a member of the
respondent's staff) who had a child with Perthes' disease.
Mr S categorically denied he had been rude to Fleur. He said he believed he
had not been rude to any of his students and believed he had never used the
expressions to Fleur which she alleged: in particular, "you have no idea". He
gave evidence as follows:
I asked questions. I ask questions in a maths class as part and parcel of
teaching maths, but whether the student knows the answer of course, you can't
guarantee that. You ask a question to find out what in fact they know so that
you can build on what's known, and obviously that's the reason for the
questioning."
Mr S said it would be "quite pointless" to ask Fleur a question knowing she did
not know the answer, and he further denied he had ever been or appeared amused
when she was unable to answer his questions. In cross-examination Mr S said he
did not believe he had asked questions specifically of Fleur, but rather had
asked questions "generally across the classroom to find out just what the level
understanding is, that you might build upon that". He denied he had singled
Fleur out in any particular manner. He concluded it "was very evident" Fleur
was having problems with maths, but he continued to ask questions to the class,
and denied he was amused at Fleur's expense. He said he could not recall Fleur
looking "uncomfortable and embarrassed" in class.
3.2 Evidence on direct
discrimination.
Most of the evidence relevant to the complaint of direct discrimination is also
contained within the transcript from the previous inquiry conducted by Sir
Ronald Wilson. I take this into account and refer to it further below.
However, Mrs Cowell called two witnesses and I deal with their evidence here.
3.2.1 The evidence of PX.
Mr PX was aged 17 years when he gave sworn evidence at this inquiry. He told
the Commission he had commenced as a student with the School in Year 4 in 1991.
In 1996 he had broken both legs and had both his legs in plaster casts, and he
was off school for two weeks. The period of time he was away from school was
while exams were being conducted or just prior. He told the Commission he had
been told to do revision work at home, and areas where he was advised to revise
were identified. He was not sent work as such. He did not receive any
assignments to do but undertook revision work. He said he did not recall his
sister, who was also a student at the School, bringing work home for him, or
his mother bringing work home.
When he returned to the School he was told he could have breaks during the
exams and could work in the library if he could not manage the stairs. He was
not given any individual classes or support when he went back to school, and
nor was this suggested.
3.2.2 The evidence of CY.
The other witness called by Mrs Cowell was Mr CY, a teacher with the School for
more than 20 years. Mr CY gave evidence on affirmation, and said he would have
taught "thousands" of children in his time with the School.
Mr CY said when students were away from school for any period of time after
illness, as their teacher he would always make sure he caught up with the
student to give notes and worksheets which had been provided during the
student's absence from school. He said if he were requested to send work home
for the student to do while away, he would do so, but not automatically: he
would only do so on request, and certainly would not do so if it appeared the
student was unable to do the work at home. Mr CY said it was school policy to
always provide every assistance to students, and if a student returned to
school after a prolonged absence he would invite the student to come to see him
and make himself available to provide assistance. He said generally parents
would pursue this practice in any event. Mr CY said there were no formal
arrangements within the School as to what action should be taken if a student
was away for an extended time. Sometimes in teachers' meetings individual
students and their circumstances might be discussed, although this more
generally happened with the teachers who were specifically involved with the
student. Mr CY could not recall Fleur being discussed at any general teachers'
meetings, but he said her circumstances were discussed at House meetings. Mr
CY said there was a teacher employed at the School who dealt with students with
special learning needs: this teacher provided extra tuition and in particular
supported students in English and language. A student who had lost a
considerable amount of time from school for illness or some other reason would
generally be put into a different class when they returned to school: however,
the student would not be provided with a special teacher, but would be put in a
class generally targeted for students having difficulties with a particular
subject. Mr CY said individual teachers might assess a student as having
special needs for whatever reasons and recommend that student attend the
special class. Mr CY believed there was no reason why this facility would not
be available to Fleur, or why any issues would not be discussed with Mrs Cowell
and her husband.
In cross-examination Mr CY explained further that the special needs teachers
were generally provided for students with specific learning difficulties,
rather than those who had simply fallen behind: if a student had fallen behind,
rather than having special learning needs, they would simply go into a lower or
different class. He believed this was Fleur's situation: she did not have a
learning difficulty, but her circumstances were such that she had fallen behind
in her work. Mr CY said the School's philosophy, which he personally endorsed,
was to try to extend children, not close off their options before it was
necessary to do so. He believed it would be inappropriate where a student did
not have a special learning difficulty, but rather had just fallen behind in
their work because of illness or circumstances, to send that student to a
special needs teacher. However he believed it was appropriate to make an
individual assessment for each student's needs, and he believed this was done
in Fleur's case.
Mr CY said the responsibility for making arrangements to send work home, if
this were seen as appropriate, would generally rest with the head of House: at
the relevant time this was Mrs M, who gave evidence at the inquiry held by
Commissioner Wilson. Mr CY described Fleur's long period of absence as "most
unusual". However, if arrangements were made for work to be sent to Fleur and
this was not returned, there was not much value in continuing to send more
work. Mr CY said under those circumstances, further work would probably only
be sent on a specific request, and again, the teacher could only make a guess
at what level of work might be appropriate to send. Mr CY considered if work
was not being consistently undertaken and returned by the absent student so it
could be consistently assessed by the teacher at the school, there would be
little educational value in sending work home spasmodically.
Mr CY believed a student returning to school after an absence of two terms
would expect to receive special attention from the School, and this would be
appropriate. The form of that attention might not necessarily be the provision
of notes, but was more likely to entail extensive discussion, and the student
might simply be given some current work to see how he or she coped after the
absence.
Mr CY believed he had provided Fleur with back notes to cover the period she
was away and he had seen her working alone in the library.
3.3 The comparator to Fleur.
The evidence that was relevant to address the issue of direct discrimination
related to establishing a comparator for Fleur's circumstances. To establish
direct discrimination, Fleur must demonstrate that on the ground of her
disability she was treated "less favourably than, in circumstances that are the
same or are not materially different", a person without her disability would
have been treated. Accordingly, Fleur ought to provide the inquiry with
evidence as to how persons without her disability were treated in circumstances
the same or not materially different to her's. Mr PX's evidence was directed
to this, on the basis that Mr PX did not have Fleur's disability but his
circumstances were the same or not materially different from her's, in that he
was absent from school for an extended period. Mr CY's evidence was directed
to demonstrating to the inquiry the School's general practice in relation to
students without a disability but whose circumstances were the same or not
materially different from Fleur's: that is, students without a disability but
who were absent from school for a lengthy period. There was no other evidence
presented in relation to this particular issue.
4. SUBMISSIONS
Both Mrs Cowell and Ms Powell for the respondent made both written and oral
submissions to the inquiry. I shall deal with the respondent's submissions
first.
4.1 The respondent's submissions.
4.1.1 Complaint of harassment.
The respondent submitted I should make a finding the complaint of harassment in
relation to the alleged behaviour of Mr S is not substantiated. The respondent
directed me to the evidence which I have recited above.
4.1.2 Submissions on direct
discrimination.
In relation to direct discrimination under section 5 of the Act, Ms Powell
directed my attention principally to the effect of section 5(2). She submitted
it was section 5(2) which determined the extent of the respondent's response to
Fleur's disability. Her submission was that section 5(2) made it clear the
respondent was required to have a "reasonably proportionate response" to the
complainant's disability, but did not require the respondent to take
"affirmative action" in relation to that disability.
Ms Powell submitted section 5(2) would not become relevant unless there were
findings that Fleur had been treated less favourably than a person without a
disability. If that finding were not able to be made then section 5(2) was not
relevant. She submitted however that "the effect of section 5(2) is to prevent
avoidance of liability, not to extend the liability created by section 5(1)".
She submitted that although on her suggested interpretation of section 5(2) no
affirmative action was required, the respondent conceded even without a
positive obligation placed on it, nevertheless a reasonably proportionate
response was appropriate.
Ms Powell however submitted the School had responded to Fleur's disability in a
reasonably proportionate way. In particular she submitted the primary
complaint made by Mrs Cowell and Fleur was one which in its fundamental aspect
was no longer relevant as it related to a complaint of indirect discrimination
which had been held to be not substantiated by Commissioner Wilson:
Commissioner Wilson's finding in this respect was upheld by the Federal Court.
This complaint was that Fleur had been subjected to discrimination in that she
had not been provided with a downstairs teaching environment. Her complaint
was that her House had its "home room" upstairs and the School had refused to
transfer this home room downstairs. Commissioner Wilson found from March 1994
and consistently thereafter, the School had offered Mrs Cowell and Fleur a
change of House so that Fleur could be taught in a downstairs room. Mrs Cowell
and Fleur consistently rejected that offer as Fleur wished to remain in the
House in which she had been originally enrolled. It was this refusal which
meant Fleur was, for a number of lessons, alone in the library, rather than in
a classroom environment with her peers.
Although the central and primary aspect of this complaint was, in Ms Powell's
submission no longer relevant, she submitted nevertheless that a number of
Fleur's other complaints were a direct consequence of her refusal to accept the
transfer to another House. She submitted "there was a causative relationship
between Fleur's refusal to change Houses and the subsequent matters of which
she complained". Commissioner Wilson rejected Mrs Cowell and Fleur's evidence
that they had not been offered a change of House after the initial very early
offer in March 1994. It was the rejection of that evidence which led to the
dismissal of the complaint of indirect discrimination. Ms Powell submitted,
having rejected Mrs Cowell and Fleur's allegation that no change of House was
offered and therefore Fleur was obliged to have all her lessons outside the
classroom and in isolation, "means that the circumstances of detriment now
complained about are causally linked to the complainants' own decisions and
actions, not to the school's treatment of her". Ms Powell further submitted:
"It would be untenable to argue that a disabled person could create, by her own
actions, circumstances whereby services could only be provided by the
implementation of exceptional strategies, and then complains that the failure
to implement those strategies amounted to less favourable treatment".
Ms Powell submitted the onus of proof to establish the discriminatory action
lay with the complainants. She submitted the complainants had not discharged
that onus of proof. She conceded the onus of proof was extremely difficult
for a complainant to establish: the complainant, to discharge that onus of
proof, needed to provide evidence that students without a disability enrolled
in the School had been or would have been treated differently from Fleur if
their circumstances had otherwise been the same as her's, and that such
different treatment would have been or was more favourable. Ms Powell conceded
in discussion it would be extraordinarily difficult for a complainant to
establish an appropriate comparator: this was what Mrs Cowell had sought to do
in calling the witness PX. The relevant comparator must be a student without
disabilities, but who has for some reason had extensive absences from school,
and as a consequence fallen behind in their school work.
In her submissions concerning the allegations of direct discrimination, Ms
Powell identified the evidence given at the previous inquiry before
Commissioner Wilson, and I set this out below. The submissions she made
relating to the allegations of direct discrimination were that there was no
evidence supporting the allegations made by Mrs Cowell and Fleur, or that there
was evidence the School had made a reasonably proportionate response to Fleur's
disability, and the circumstances alleged by Mrs Cowell and Fleur therefore did
not constitute direct discrimination under the Act. Ms Powell also submitted I
should adopt the submissions made before Commissioner Wilson at the previous
inquiry, and in particular the factual analysis presented in those submissions.
Mrs Cowell did not object to this, and I considered this to be the appropriate
approach to take, and I do adopt that analysis.
Ms Powell listed the allegations made by Mrs Cowell and Fleur which constituted
their claim in relation to direct discrimination. The first two allegations
relate to Fleur's circumstances whereby she spent a good deal of time at the
School working alone downstairs in the library. This arose because Fleur's
House "home room" was situated upstairs which Fleur had great difficulty in
accessing. Ms Powell submitted these allegations relating to this aspect of
Fleur's complaint could not be sustained, as Commissioner Wilson had found
there was no discrimination by the respondent against Fleur in the provision of
the downstairs teaching environment: this finding had been endorsed by
Mansfield J. Ms Powell's submission was that a number of the other
circumstances of discrimination alleged by Mrs Cowell and Fleur flow directly
from Fleur's inability to have her schooling in a classroom with her peers.
Ms Powell submitted there was no evidence to support the complainant's
allegation she was discriminated against, in that no arrangements were made for
her to receive tuition outside classes when she was unable to attend in the
classroom. Ms Powell submitted there was no evidence that tuition outside
classes was offered to non-disabled students, and indeed the evidence of Mr D
(before Commissioner Wilson) was that parents would often make arrangements to
engage a tutor where their child was falling behind in school work for whatever
reason. There was no evidence of any school policy in relation to such
tuition, and Mr CY, called by Mrs Cowell before this inquiry, did not give any
indication this was an arrangement the School would make: Mr CY gave evidence
of the arrangements the School would make once the student returned to
school.
In relation to the complaint that Fleur was subjected to discrimination in that
she was not provided with the same materials as other students, and feedback on
her work, Ms Powell submitted the School faced very real and practical problems
in providing ongoing assistance while Fleur was away from school, because she
did not return work which had been sent to her already. Mr CY gave evidence on
this matter, and indicated that if work sent home was not returned with
regularity it was inappropriate for the School to continue providing work, as
the School would not be able to make an assessment as to what work was
appropriate. His view was that such a practice would be educationally
disadvantageous for the student. Ms Powell submitted there was evidence given
in the previous inquiry that it was often the case the School was not notified
when Fleur would be at school and when she would return to school, and under
those circumstances it was very difficult for the School to prepare work for
her to do out of class, either at home or in the library. Ms Powell submitted
the same considerations were relevant with respect to Fleur's complaint that
she was discriminated against in that she was not provided with regular contact
with members of the teaching staff, or that she was not provided with the same
materials or feedback as other students.
In relation to Fleur's complaint that she was not provided with a designated
person for support, Ms Powell submitted the evidence indicated Fleur and Mrs
Cowell were aware of the existence of the school counsellor, but chose not to
consult with him, other than once in March 1996. Commissioner Wilson found the
head of Fleur's House, Mrs M, provided significant "pastoral care" to Fleur,
but of course was not in a position to provide this on a one to one basis
permanently. Ms Powell submitted Mrs M and the librarian both responded
appropriately when assistance was sought. Ms Powell submitted "it would be
beyond a proportionate response" to impose any further obligation on the
School, beyond that which was requested, when it was clear a school counsellor
was available. Further Ms Powell submitted, there was no evidence any other
student, whether disabled or not, was provided with such a service.
In relation to Fleur's complaint that she was placed in a class "for which she
was unsuited", Ms Powell submitted there was no evidence of an objective nature
that such conduct occurred. Ms Powell submitted the only evidence in support
of this allegation was the "subjective assessment" by Mrs Cowell and Fleur, but
the evidence of teachers who gave evidence before Commissioner Wilson was that
Fleur was placed in classes which provided an appropriate teaching environment,
having regard to her particular circumstances.
In relation to the complaint that she did not receive newsletters during her
absences from school, Ms Powell directed my attention to Mansfield J's
indication that the evidence was clear that the School did not send home weekly
notices unless requested by parents. In any event, Fleur's sister who was a
student at the School in 1995, received the newsletters herself to take home.
Fleur also made complaints she was not provided with adequate assignments and
other tasks during her absences, nor provided with extra classes or tutoring.
Ms Powell submitted the School had considerable difficulty in setting
assignments and providing them to Fleur while she was away from school, as they
were rarely returned, and it was neither sensible nor appropriate to continue
to provide work when it was not possible to make any assessment of how she was
keeping up. In addition, Ms Powell directed my attention to the evidence of
the witness PX: he gave no evidence which supported Fleur's suggestion that
other students away from school for a period of time but without disabilities
were provided with such assistance. Fleur also complained the School did not
monitor her academic progress with her Open Access Program in 1995: Ms Powell
indicated the evidence of Mr L was that although the School was aware Fleur was
engaged in the Open Access Program, it was never provided with any results or
details. In relation to this matter, Ms Powell also submitted that to suggest
the School had treated Fleur less favourably as a consequence of her disability
by failing to obtain the results, cast a positive duty on the School which was
beyond both the obligations imposed on it by the legislation and any
proportionate response to Fleur's disability. In addition, there was no
evidence provided to the inquiry that the School sought out such results on
behalf of any other students.
In relation to Fleur's complaint the School had not ascertained her academic
progress and determined what additional assistance might be appropriate, Ms
Powell submitted there was no evidence to establish that complaint. Ms Powell
directed my attention to evidence given before Commissioner Wilson concerning
consultations about Fleur's placement in the School when she returned in 1995,
and the evidence of the strategy adopted by the School in relation to Fleur's
circumstances as a result of missing so much school. The evidence was that it
was the School's policy to make an individual assessment of each child's
educational needs, and there was no evidence to suggest this did not occur in
relation to Fleur.
Fleur's final remaining complaint was the School had not maintained contact
with her during her absences in 1995. Ms Powell directed my attention to
evidence given before Commissioner Wilson indicating there had been
communication with Fleur during her various absences from school, including her
suspended enrolment period. When she was in hospital flowers and goodwill
messages were sent to Fleur from the School.
Ms Powell's overall submission in relation to the allegation of direct
discrimination was that it should be dismissed. In terms of the application of
the legislative requirements, Ms Powell submitted there was no need for any
affirmative action or positive action by the respondent, but rather that the
respondent respond in a reasonably proportional way to Fleur's disability. Ms
Powell submitted this was the only possible way in which the issue of a
relevant comparator could be established, as it was clear it was not possible
to find a real comparator. Ms Powell then submitted all the evidence
demonstrated the School had responded in a reasonably proportionate way to
Fleur's disability: the classroom was reorganised to accommodate the
disability; timetables were altered; and there were attempts to facilitate
teaching downstairs, even though Fleur had declined the invitation made on
several occasions to move to a downstairs House. Further, the School permitted
the use of inside stairs to the computer room. Ms Powell further submitted
none of the allegations of direct discrimination as set out above were
substantiated by the evidence. Moreover, many of Fleur's allegations of direct
discrimination resulted from her refusal to move to a downstairs House. Under
those circumstances much of what she complained of as direct discrimination was
directly as a result of her refusal to move downstairs, initially offered in
March 1994. Ms Powell submitted in that sense, any disadvantage suffered by
Fleur was in a causative sense ascribable to this decision she made herself.
Ms Powell submitted Mrs Cowell and Fleur had failed to establish on the balance
of probabilities there was any discrimination such as that proscribed by the
Act established on the evidence. Most of Mrs Cowell and Fleur's statements of
direct discrimination were simply assertions of discrimination with little
evidence to support it. In particular there was no relevant evidence of a
comparator: Ms Powell submitted there must be evidence upon which the relevant
comparison can be made in relation to less favourable treatment and no evidence
of such a relevant comparator was provided. Ms Powell submitted where Mrs
Cowell and Fleur had asserted that they did not believe other students were
treated in the same way as they believed Fleur was treated, this was rejected
by the School in direct evidence, but in relation to other assertions which
required evidence of a comparator, no such evidence was provided.
4.2 The complainants' submissions.
Mrs Cowell made both written and oral submissions at the inquiry. She also
requested I take into account submissions made earlier at the inquiry before
Commissioner Wilson, insofar as they dealt with the issues presently before me.
I take those into account. Mrs Cowell's submissions essentially took the form
of a summary of the evidence and a restatement of the complaints. Mrs Cowell
did not specifically address the legal questions raised by Justice Mansfield,
but in the event these issues were widely canvassed in the oral discussion at
the inquiry.
Mrs Cowell submitted Fleur was treated "far less favourably than other
students", "because of the fact that she has a disability". Mrs Cowell
asserted she and her husband had consulted with the relevant person at the
School and had specifically asked for work to be sent home when Fleur was
absent; that Fleur's home room be moved downstairs so that her classes were
held downstairs; and for the support of a peer group and friends. Mrs Cowell
asserts she and her husband were told to find another school, as the School
could not be of any assistance. Mrs Cowell conceded Commissioner Wilson did
not accept this evidence, but accepted the School's evidence that Mrs Cowell
was not told she should find another school for Fleur.
Mrs Cowell said the School had been well aware of Fleur's disability and that
it was a long term illness, from the time she applied for enrolment. She
submitted the School had provided Fleur with less favourable treatment in
respect of all of the aspects of direct discrimination alleged, including not
sending home school work when Fleur was absent from school; not notifying her
of special school events that would benefit her education; not keeping her
parents involved by provision of school notices; not contacting Fleur when she
returned to school to provide her with back notes or discuss the work she had
missed; or assisting her in free lessons. Mrs Cowell directed my attention to
the evidence of Mr CY who stated the School responded to requests for
assistance if a student or parents requested extra help, but indicated Fleur
did not receive any extra help. She also indicated Mr CY's evidence that
although the School had special education teachers available, he was not aware
of why the attention of special education teachers would not have been provided
to Fleur. Mrs Cowell said she had not been made aware of these teachers or the
services they could have provided, and believed they could have provided
assistance to Fleur. She submitted these teachers were available to all
students other than Fleur, and this was on the basis of her disability.
Mrs Cowell submitted the evidence was clear that teachers were notified when
Fleur went to school and was in the library, but there was rarely any response
to this. She submitted "teachers made the presumption that [Fleur] could not
do her exams, and did not bother to help her when she said she wanted to sit
them. This was less favourable treatment.". She submitted the School's
asserted policy to extend a child's individual ability was not applied in
Fleur's circumstances.
Mrs Cowell submitted I should not accept the evidence of Mr D who gave evidence
before Commissioner Wilson, or that of Mrs M in relation to her notes
concerning her discussions with Fleur's father.
Mrs J's final submission was that Fleur's "access to benefits provided by the
school was restricted on the grounds of her disability". She submitted the
grounds for direct discrimination were clearly made out.
Mrs Cowell also submitted the School had harassed Fleur as a consequence of her
disability by placing her in a class she could not manage. In particular, Mrs
Cowell submitted the evidence of Fleur made it clear Mr S harassed her with
inappropriate questions and responses when her work was behind due to absence
as a result of her disability, and submitted a reasonable person would have
anticipated that Fleur would be offended and humiliated by this conduct. She
submitted I ought make a finding Fleur had been subjected to harassment on the
ground of her disability.
Mrs Cowell submitted there was no evidence before me to show that teachers made
any attempt to help Fleur in the way she submitted other students were helped
by the School.
5. CONSIDERATION OF THE LAW
5.1 Harassment - section 37 of the
Act.
The only issue of harassment before me is the allegation that one of the
teachers, Mr S, asked Fleur questions to which she did not know the answer and
which he could have been expected to know she would not know the answer, and
appeared amused at her confusion and embarrassment in class when she revealed
her lack of understanding. Fleur's evidence was that Mr S was rude and she
felt she had been bullied by him. Mr S denied he had been rude to Fleur, and
denied he had consciously asked her questions which he knew she would be unable
to answer. He also categorically denied showing any amusement at her inability
to answer the question. His evidence was that it is routine to ask questions
of students in class, and explained in his evidence it was necessary to do this
as part of the general learning and educative process.
I did not have an opportunity to observe Mr S or Fleur as they did not give
evidence at this inquiry. Nevertheless, their evidence is clear from the
transcript and the general tenor from the submissions made before me by Mrs
Cowell and Ms Powell.
Mrs Cowell did not call any other witnesses in support of her allegation of
harassment, although the evidence suggests the circumstances which Fleur found
difficult and of which she complained occurred before a whole class of
students. In her evidence Fleur named some of the students, but I note no
other students were called to give evidence either before Commissioner Wilson
or at this inquiry.
I am not satisfied the allegation of harassment has been made out. I am
satisfied the events which occurred in this class were part of the ordinary
process of teaching and it seems likely that Fleur's disability and
circumstances may have led to a heightened sensitivity about the extent to
which she had fallen behind in her work, leading to embarrassment and
unhappiness. I note documentation tendered at the previous inquiry indicates
that maths was one of Fleur's weaker subjects and any falling back in her
studies was likely to affect them most.
I am satisfied the claim of harassment against Mr S is not substantiated, and I
propose to dismiss this complaint pursuant to section 103(1)(a).
5.2 Direct discrimination.
There was much discussion at the inquiry as to the meaning of section 5 and the
way in which the notion of direct discrimination can be established in relation
to disability discrimination. It is clear the onus of proof in this matter
lies with the complainant, who must satisfy the Commission on the balance of
probabilities that the proscribed behaviour set out in section 5(1) has
occurred. Accordingly, the complainant must establish that because of Fleur's
disability she was treated less favourably by the respondent than other persons
without the disability in the same circumstances as she found herself in (or
ones that were not materially different). Fleur therefore must establish less
favourable treatment; that the less favourable treatment was on the ground of
her disability; and further, that other persons in a similar situation to
her's, but without the disability, would not have been subjected to that less
favourable treatment.
It is clear Fleur was certainly disadvantaged most significantly as a result of
her disability, and the disadvantages she faced included educational
disadvantage. This is quite clear from any consideration of the complaint and
the evidence before Commissioner Wilson, and his decision and that of Mansfield
J. This documentation, including the transcript before the previous inquiry,
shows graphically the very great difficulties resulting from her disability
which Fleur and her family faced. I have very great sympathy for Fleur and the
difficulties and disadvantages for her and her family which resulted from her
disability. It is also clear from the documentation and submissions before me,
which include the materials referred to above, that the School also had (and
maintains) considerable sympathy for Fleur and her family. The evidence makes
it clear the School acted as it saw appropriate to assist her in relation to
the disadvantages consequential upon her disability which were relevant to her
education, and it is also clear the School saw a need to bear in mind in so
doing, both Fleur's and other students' educational needs. The issue before me
in this context is whether the School's response which it saw as appropriate,
was sufficient in law.
5.2.1 The requirements of section
5(1).
Section 5(1) requires three factors to be established for direct discrimination
contrary to the Act to be made out as a result of a complaint. First, the
aggrieved person must have received less favourable treatment; second, this
less favourable treatment must be on the ground of the aggrieved person's
disability; and thirdly, the less favourable treatment must be compared with
treatment provided to others without the disability but "in circumstances that
are the same or are not materially different" from those of the aggrieved
person.
There are significant difficulties for a complainant to make out a complaint of
direct discrimination under this section. First the complainant must establish
the less favourable treatment on a comparative basis. This is emphasised as the
core of the difficulty established by Mansfield J in relation to this matter
before the Federal Court: section 5 requires that a comparator be established
so a comparison can be drawn between the way a person with a disability is
treated and the way a person in similar circumstances but without a disability
is treated. The view taken by Mansfield J is that there is no obligation to
treat a person with a disability more favourably than the way in which a person
without a disability would be treated: the obligation is to not treat the
person with the disability "less favourably". Further, any less favourable
treatment must be on the ground of the disability. Commissioner Wilson saw as
"a critical question" in relation to this complaint, whether the respondent
School was responsible to some degree for Fleur's personal distress and lack of
educational achievement because it treated her less favourably than it treated
other students. Justice Mansfield accepted this was an appropriate
identification as the issue, and was satisfied this identification was not
equivalent to imposing a positive obligation on the School to act more
favourably towards Fleur: Mansfield J commented it was not contended by the
complainant that any positive obligation was imposed by section 5.
However, what obligation is placed on a respondent is raised by the expression
in section 5(1) "to treat...less favourably": the concepts of equality and
discrimination applied in Australian law (and indeed by common sense) make it
clear that people can be treated in exactly the same way but this can
nevertheless amount to less favourable treatment for one of those persons
because that person has a disability. In the context of constitutional law,
which includes discrimination as a constitutional concept, the High Court, in
cases such as Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR
436, has considered this issue. At 478, Justices Gaudron and McHugh considered
in what circustances a law could be discriminatory within the meaning of the
Constitution:
"A law is discriminatory if it operates by reference to a distinction which
some overriding law decrees to be irrelevant or by reference to a distinction
which is in fact irrelevant to the object to be attained; a law is
discriminatory if, although it operates by reference to a relevant distinction,
the different treatment thereby assigned is not appropriate and adapted to the
difference or differences which support the distinction. A law is also
discriminatory if, although there is a relevant difference, it proceeds as
though there is no such difference or, in other words if it treats equally
things that are unequal - unless, perhaps, there is no practical basis for
differentiation."
Although this analysis of the concept of discrimination was there applied in
the context of constitutional law, it is relevant to apply generally in
developing a theory of discrimination to apply to the relevant Commonwealth
legislation, which includes this Act.
Section 5(2) can provide some assistance in determining what obligation is
imposed on a supplier of (as in this case) educational services, in relation to
a person with a disability in establishing the appropriate level of behaviour
which will truly not amount to less favourable treatment.
5.2.2 Section 5(2): The obligation placed
on a respondent.
There was considerable discussion both in the written and oral submissions as
to the appropriate interpretation of section 5(2) of the Act. The respondent
submitted there was no positive obligation imposed on it by the Act to act to
affirmatively assist Fleur in relation to her disability: the respondent argued
rather, it must have a proportionate response to Fleur's disability, but there
was no obligation to positively discriminate. This matter was also considered
by Mansfield J in the Federal Court.
Does section 5(2) simply provide a description of what amounts to a material
difference, or does it set out a means of establishing how to make
circumstances of disability such that they are not materially different from
persons without a disability? The issue is of considerable significance: if
section 5(2) defines the level of response required by a respondent, then it
enables section 5(1) to operate more effectively to describe what "material
difference" might mean. Otherwise, section 5(1) presents a considerable
difficulty to a complainant, as in this case, in establishing a relevant
comparator.
In his judgment Mansfield J comments it was not contended before him that
section 5 imposed any positive obligation on the School. Nevertheless he
commented:
"I do not wish to be taken as accepting that the obligation not to discriminate
against a person with a disability under the DD Act does not involve some
obligation to take positive action with respect to a disabled person." (at
103).
He continues, "the accommodation of that need may well require some positive
action to be taken" (at 103).
He notes there are some limitations expressed in the legislation as to the
extent of any obligation not to treat less favourably imposed on a respondent:
in particular, references in several sections of the Act which limits the
action which might otherwise be required to be taken if such action would
impose "unjustifiable hardship" on the person providing the goods or services
or other relevant service. In relation to education, this is reflected in
section 22(4) of the Act: however that qualification of unjustifiable hardship
only operates in respect of a refusal to accept a person into an educational
institution where admission as a student "would require services or facilities
that are not required by students who do not have a disability and the
provision of which would impose unjustifiable hardship on the educational
authority". The limitation of unjustifiable hardship does not apply to the
educational institution once the person with the disability has been admitted
as a student. Mansfield J comments that the central issue thus for a student
with disabilities once admitted to a school is to be found in section 5, not
section 22, as section 22(2) does not carry an equivalent exempting provision.
Mansfield J comments that what amounts to less favourable treatment must be
measured in circumstances that are not "materially different", and section 5(2)
provides that a requirement for different accommodation or services cannot
itself provide a basis for establishing that material difference. Justice
Mansfield concludes there may therefore be some positive obligation on a
respondent to provide for the needs of a person with a disability such as Fleur
in some circumstances.
Justice Mansfield did not express any concluded view on this matter, although
he made it clear he was of the view there were some obligations which were
imposed on a respondent in a case such as this, the limitations of which might
well be found in section 5(2).
The central issue in Mansfield J's consideration of the Commission's previous
determination was that it had not addressed the lack of a comparator which is
required by section 5(1). Rather, Commissioner Wilson focused on how Fleur was
treated or could or should have been treated by the School, without considering
how the School treated or would or should have treated a comparator student:
that is, a student in similar circumstances to Fleur but without her
disability. Commissioner Wilson's conclusion was in terms of what the
respondent ideally should or could have done for Fleur, rather than in terms of
whether it treated her less favourably, compared with the way it treated a
comparator non-disabled student. Mansfield J's conclusion relevant to this
issue is set out at 106:
"Irrespective of the consequences of s5(2) upon the proper construction of
"discrimination", clearly a comparison is required between two sets of
circumstances to enable a decision to be made as to whether there has been
discrimination. One is the real set of circumstances as to how Fleur was in
fact treated. The other is the hypothetical set of circumstances as to how a
student or students without that disability would have been treated, or the
real set of circumstances as to how a student or students without that
disability have been treated in circumstances that are the same or not
materially different. Section 5(2) elucidates what may, or may not, constitute
a material difference."
Justice Mansfield identified the matters in which he considered the
Commission's previous consideration had been deficient and which were required
to be addressed in this inquiry. He indicated it was necessary to make very
specific comparisons: "The factual findings...were expressed in terms of what
was needed for Fleur in her particular circumstances. The comparison with
other non-disabled students is of course a difficult one to make. That is
especially so in the face of what the Commission described as "unusual and
extremely difficult" circumstances. Those students not forced to be absent
from school by disability, would not have prolonged absences or periods of time
in the library working alone. The Commission has not made any observations as
to whether there were other students who experienced prolonged or broken
absences from school...or how they were treated." Justice Mansfield concluded
it was necessary to consider what treatment would have been accorded to other
students without Fleur's disability in the same or similar circumstances; why
in the event of any such differential treatment that differential treatment
occurred; and if there were any differential treatment whether one reason for
it was Fleur's disability.
The issue of less favourable treatment in the context of the Act is extensively
and sensitively discussed by Commissioner Nettlefold in his decision in Garity v Commonwealth Bank of Australia (No H97/191, 25 January 1999).
He concluded that "the `principle of reasonable accommodation'...should be
regarded as a central principle of disability discrimination law. The proper
construction of the Act shows that the principle of reasonable accommodation is
contained in it." Commissioner Nettlefold considered this was recognised in
section 5(2) and other sections of the Act. His view was that "the use of the
word `favourably' [in section 5(1)] adverts to the notion of giving aid or
help. A mere mechanical measure of the aid or help given, which ignores
disparate capacities, needs, and circumstances is not sufficient."
Commissioner Nettlefold adopted "as correct and applicable" the statement by
Commissioner Wilson quoted by Wilcox J in Commonwealth v Human Rights
Commission (1993) 119 ALR 133 at 151, and by other courts elsewhere:
"It would fatally frustrate the purposes of the Act if the matters which it
expressly identifies as constituting unacceptable bases for different
treatment, could be seized upon as rendering the overall circumstances
materially different, with the result that the treatment could never be
discriminatory within the meaning of the Act."
I too adopt as correct and applicable that statement.
So how does section 5(2) operate to assist in the interpretation of section
5(1), and in particular the "less favourable" means? The discussions to which
I have referred above indicate a general view that section 5(2) does not
provide just a description of what amounts to material differences: rather, it
assists in determining how to make circumstances of disability not materially
different. That is, in some circumstances there may be some positive
obligation on a respondent to take steps in order to ensure there is no
material difference between the treatment accorded to a person with a
disability and the treatment accorded to a person in similar circumstances but
without a disability. Mansfield J alludes to this in his judgment in this
matter. It is my view that without this interpretation of section 5(2), it
would be difficult to establish direct discrimination under the Act, except in
the most blatant circumstances, and a person subjected to discriminatory
treatment within the intention of the Act would most often have to rely on
section 6 and establish indirect discrimination.
It is my view the substantial effect of section 5(2) is to impose a duty on a
respondent to make a reasonably proportionate response to the disability of the
person with which it is dealing in the provision of appropriate accommodation
or other support as may be required as a consequence of the disability, so that
in truth the person with the disability is not subjected to less favourable
treatment than would a person without a disability in similar circumstances.
This conclusion seems consistent with the approach taken by Commissioner
Nettlefold in Garity, and with the suggestions of Mansfield J in the
Federal Court. In the submissions before me my attention was drawn to the
discussion of this issue by the US Court of Appeals in Southern Community
College v Davis (442 US 397 (1979)), and further discussions by Kirby P (as
he then was) in Jamal v Secretary, Department of Health (1988) 14 NSWLR
452. In both these cases, the US Court of Appeal and the Court of Appeal in
New South Wales were seeking to distinguish between those adjustments for
disability which are "fundamental" or "substantial" (and therefore not required
from a respondent), and those which are "reasonable" and therefore required as
an appropriate response to disability. The conclusion in Davis endorsed
in Jamal is that suggested above: that there is no requirement of
affirmative action or positive obligation on a respondent, but there is some
need for an appropriate response to disability. It was submitted this should
be described as a requirement of a reasonably proportionate response, and in my
view that is an appropriate expression to use, and one increasingly used by the
courts.
My attention was also directed to the decision of the New South Wales Court of
Appeal in Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13.
That case considered New South Wales legislation, but the structure of the
legislation before the Court of Appeal was similar to that contained in section
5 of this Act. The Court's view was that the legislation was concerned with
"the detriment concept of discrimination", rather than "reverse discrimination"
or "affirmative action discrimination". The Court considered the reference to
being treated less favourably "in circumstances that are the same or are not
materially different" to "represent merely the draftsman's necessary drawing
out of the meaning of `less favourably'. I do not think they are intended to
limit the circumstances in which less favourable treatment could operate as
discrimination".
I am of the view these considerations represent an appropriate and workable
interpretation of section 5 of the Act. Once Fleur, with an agreed disability,
was admitted as a student with the respondent School, the School could not rely
on the defence of "unjustifiable hardship" in section 22(4) in relation to
providing her with any particular needs as a consequence of her disability. It
was obliged not to treat her less favourably, than in circumstances in which it
would treat a student without a disability whose circumstances were not
materially different from Fleur's, where the less favourable treatment was on
the ground of Fleur's disability. This obligation did not impose a positive
obligation to discriminate in Fleur's favour, but it does impose an obligation
on the respondent School to establish a proportionate response to Fleur's
disability so that the issue of discrimination against her on the ground of her
disability was truly addressed. In my view the limits of the respondent's
obligations are to be established by considering what amounts to a
proportionate response to Fleur's disability. I am quite satisfied a proper
reading of section 5 does not establish any positive obligation on the
respondent to take affirmative action towards Fleur, but the respondent
certainly could not necessarily treat Fleur the same as another student without
a disability who was away from school for a long period, as that comparator
would never be sufficiently precise to take into account the consequence of
Fleur's disability. Fleur's disability meant not only that she was away from
school for long periods and therefore fell behind in her school work, it also
meant when she was at school she often worked downstairs, she lost touch with
her peers and she, as well as having the other consequences of her illness and
disability such as loss of energy and pain, had also lost confidence. A
student who is away from school for long periods, for example because he or she
is engaged in elite sports training, is a comparator in one sense (the absence
from school), but is unlikely to be a sufficiently precise comparator in
relation to Fleur's particular circumstances consequential upon her actual
disability.
5.2.3 Application to Fleur's complaints of
direct discrimination.
In none of the evidence presented before me or before Commissioner Wilson did
Mrs Cowell provide clear direct evidence of a comparator relevant to Fleur's
circumstances. Mr PX gave evidence: he was a student who had been away from
school for two weeks as a consequence of both his legs being broken, but as a
comparator this was inadequate. Mr PX was away for only a short period of time
(relative to Fleur's extensive absences as a consequence of her disability),
and at a time when it appeared there was no substantive teaching going on: it
was just before the exams and he was revising. As a comparator he did not
provide a helpful counterpoint, but in any event the evidence he gave was not
helpful to Fleur's case. It was clear the School did not provide him with any
particular assistance, but this of course could have been because it was a
period just prior to the exams, and as Mr PX said he was just revising.
It is clear the onus of proof is on a complainant to establish the appropriate
comparator and that the respondent has not responded reasonably proportionately
or appropriately to the disability. I am of the view this onus of proof has
not been discharged, either by direct evidence adduced before me, or in the
previous inquiry or by inference from that evidence.
In saying this I would comment it is a difficult task to establish direct
discrimination under this Act because of the need for a comparator: the
difficulties faced by a person with disabilities such as Fleur are such that it
is very hard to find a relevant comparator, or to effectively address or define
the issue of reasonably proportionate response. Justice Mansfield comments on
this. People without a disability will almost never be in circumstances
comparable to those with a disability: disability discrimination is in this
sense quite different from discrimination on the ground of sex or race. The
conclusion in this matter must be that Fleur was significantly disadvantaged in
her education (as in other things) because of her disability, but this
disadvantage resulted from her disability. I am of the view no disadvantage
such as that proscribed by the Act was a consequence of any unlawful
discriminatory treatment by the respondent.
I have carefully considered the matters identified by Justice Mansfield as
necessary for attention in determining Fleur's complaint. It is clear Fleur
was treated differently from other students: other students were not separated
from their classes or required or expected to work alone in the library.
However, no other students had Fleur's incapacity to work in their upstairs
home room. I am satisfied there was no obligation on the respondent to move
the whole class downstairs, but in any event it is my view such a response
would not have been proportionate. It was accepted by Commissioner Wilson and
in the Federal Court that the respondent had made offers and suggestions to
Fleur and her parents that she change to a House with a downstairs home room
from as early as March 1994, early on in her enrolment in the School. Fleur
and Mrs Cowell refused that offer, preferring that Fleur remain in the House in
which she had originally enrolled a week or two earlier. Consequently the
respondent School made other arrangements to accommodate Fleur's disability.
Those other arrangements included work in the library and in some other
downstairs classrooms, separated from the rest of her class. I accept the
arrangements made by the School were appropriate, given Fleur's rejection of
the offer to move to a House with a downstairs home room. It is these changed
arrangements, either proposed or made by the School, which appear to me to
constitute a proportionate response to Fleur's disability: these changed
arrangements include the offer to change Houses, changes in timetabling, the
use of inside stairs to access the computer room (acknowledging Fleur still had
very significant difficulties with the stairs but further that the computers
were located in a particular area requiring stair access), and other matters
referred to in the evidence.
There is some evidence before me as to what services were provided to other
students: it is clear under some circumstances work was sent home to be
completed by students who were away from school for an extended period. Some
work was sent home to Fleur. This was not however a consistent practice in
relation to Fleur. I accept the evidence before Commissioner Wilson, and
separately before me from Mr CY, that the fact the School did not persist with
sending work home to Fleur was based on its inability to maintain an ongoing
assessment of her capacity to continue with the work as the work was not
consistently completed and returned. This assessment by the School is linked
with other evidence before me and earlier Commissioner Wilson that the School
asserted it made individual assessments of each child to provide each child
with support according to each individual's educational needs. Fleur
complained she did not obtain the same feedback and support as other students,
was placed in classes for which she was unsuited and was not provided with
additional assistance such as extra classes and tutoring. However, I am
satisfied both that the School did provide Fleur with such educational
assistance and support (including placing her in an appropriate level class) as
was consistent with its assessment of her individual needs, and in any event
that there is no evidence before me that other students received additional
assistance that was not made available to Fleur. Fleur complained she did not
have access to a designated person or persons who could provide her with
ongoing support and assistance or with a special education teacher. The School
employed a school counsellor and special education teachers. I am also
satisfied Mrs Cowell was aware of the position of the school counsellor and
indeed contacted him, but did not seek his assistance on an ongoing basis. I
am satisfied the special education teachers employed by the School were not
teachers who were able to assist Fleur: Fleur's disability is not one in the
area with which special education teachers are able to assist. Fleur's
disability impacted on her educational circumstances because it necessitated
her taking extensive periods off school which put her behind in her studies,
rather than impeding her capacity in an intellectual sense to pursue them.
Further, I am satisfied there is no evidence that the school counsellor or
special education teachers were available to non-disabled students who had long
periods off school but who did not have specific learning difficulties. The
school counsellor was available to Fleur in the same way as he was available to
any other student, and Mrs Cowell was aware of his role but declined to utilise
it.
Nor am I satisfied there is any evidence to suggest the School maintained
contact with students away from school in any way differently from the level,
degree and nature of contact that was maintained with Fleur while she was away
from school. There was evidence that messages of goodwill and flowers were
sent to Fleur when she was in hospital; and the evidence was quite clear that
school notices were not sent home as a matter of course to students who were
absent from school unless requested. Fleur's parents did not request the
notices to be sent home, but in any event they were receiving the school
notices because Fleur's sister was also at the School at that time and would
have received them and taken them home. There was no evidence the School had
any practice of maintaining ongoing contact with a student away from school who
was conducting other studies such as Fleur's through the Open Access Program.
I accept the respondent's submission ongoing contact in an educational sense
with Fleur was extremely difficult for the School to maintain, as there was no
development by Fleur or her parents of an ongoing line of communication by
either notifying her presence at school or the periods of her absence;
returning assignments which had been provided to her to complete at home; or
advising her progress under the Open Access Program. In any event, there is no
evidence before me the School conducted such practices in relation to other
students without disabilities, or indeed that the failure of the School to
maintain such contact with Fleur when she was absent for such lengthy periods
of time could be regarded as constituting less favourable treatment on the
ground of her disability. It seems to me persistent attention from the School
while Fleur was unable to attend school because of the weakness, pain,
discomfort and difficulties which her disability created for her, particularly
when she was substantially immobilised following surgery, might have been
entirely inappropriate and disadvantageous to her recovery. Issues of
disability and illness are very difficult to assess for an outsider.
I also accept the respondent's submission that many of the matters of which
Fleur complained as examples of direct discrimination were matters which arose
directly as a consequence of her refusal to change Houses. It is clear many of
the disadvantages which she saw as accruing as a consequence of her House
having an upstairs home room, such as working in the library, feeling isolated,
not having the support of her peers, etc., were factors which followed from
this refusal. I am satisfied (as was Commissioner Wilson and Mansfield J) that
the offer to change Houses was made and was rejected by Mrs Cowell and Fleur.
Many of the matters complained of follow this decision.
The issue of the comparator student is to some extent a red herring in the
light of the view I have taken in relation to the obligation on the School to
make a reasonably proportionate response to Fleur's disability. However, there
is in any event, little evidence of any differential treatment of Fleur
compared with the way a student without a disability but in similar
circumstances may have been treated. It is clear Fleur's circumstances were
different by virtue of the fact that she was often not at school. When she was
at school she was severely inhibited in going upstairs and as a consequence was
behind in her work, and when she was at school was isolated in the library to
some extent. However, there is no evidence as to how the comparator student
without a disability but in similar circumstances was treated by the School.
The primary evidence that is before me, which I accept, is that the School made
an individual assessment of the needs of each student, including Fleur, and
engaged in its educational relationship with each student on that basis.
However, I have concluded above that mere lack of differentiation between the
way in which Fleur was treated, and the treatment accorded to a non-disabled
student, might not be enough. The School's response must be such that, while
not requiring positive discrimination in favour of Fleur, it must behave
proportionately and appropriately to ensure Fleur was not subjected to less
favourable treatment than the hypothetical comparator would have received. I
am satisfied on the basis of the evidence before me this was the case. I am
satisfied it was an appropriate and proportionate response of the school to
suggest to Fleur she change Houses so she could have a downstairs classroom.
Had she done so many of the matters of which she complained simply would not
have occurred. She would not have been separated from her peers in class; she
would not be working in the library; she would not have felt her work was
neglected. I am also satisfied it was a proportionate response by the School
to not send her further work to complete at home when initial work had not been
returned. In those circumstances no assessment was able to be made by the
respondent as to the level or nature of work which was appropriate to send.
Such a decision would have been inconsistent with the School's own policy and
practice in relation to its treatment of its students.
While the matters of which Fleur complains clearly are consequential upon her
disability, it does not necessarily follow that the respondent has treated her
less favourably on the ground of her disability. It was because of her
disability she was off school for long periods of time; it was because of her
disability she was not able to be placed in an upstairs classroom. But it was
her disability which created these problems, not the School's response to her
disability. The School's response to her disability was to offer her a House
with a downstairs home room, which she rejected. It further responded to her
disability by sending her good wishes and flowers when she was ill, and sending
some work home for her to complete. It responded to its educational
relationship with her by not persisting in sending further work home when she
did not return it and no appropriate educational assessment could be made to
continue this practice. I am satisfied these considerations address each of
Fleur's complaints of direct discrimination.
In relation to other aspects of Fleur's complaints, I am satisfied there was
either no evidence to support them and they remained mere assertions by Fleur
(for example her assertion the School did not make any assessment of her
academic progress when she returned to school in 1995 and did not place her in
appropriate classes), and under those circumstances those complaints are not
made out.
I propose to dismiss Fleur's complaint of direct discrimination pursuant to
section 103(1)(a) of the Act.
6. THE IDENTITY OF THE COMPLAINANT
As I propose to dismiss both aspects of this complaint before me this question
is merely academic.
The issue was specifically raised before Commissioner Wilson who considered he
need not determine the matter. It was also raised before me. The original
complaint was made by Mrs Cowell "on behalf of" Fleur. In that complaint Mrs
Cowell indicated, "I seek compensation for my daughter and for my family...".
On 12 November 1997 Commissioner Wilson made a direction amending the name of
the complainant to "[Mrs Cowell] on behalf of herself and [Fleur]", and
indicating Mrs Cowell should be named an aggrieved party pursuant, to section
69(1)(a)(ii) of the Act.
In submissions before me Mrs Cowell indicated only she sought to be joined as a
complainant with Fleur: the original complaint had referred to her husband as
well as herself. Mrs Cowell told me all the matters which affected Fleur also
affected her: in particular, she referred to the way in which she believed she
had suffered as a consequence of the discrimination against her daughter. She
said she believed she did not have the same rights as other parents as she had
not received school notices, and although she had requested work to be sent
home for Fleur this had not occurred, although she believed it had occurred in
relation to other parents. She believed she was ignored by the School.
Further, she submitted the matters which in her allegation amounted to
discrimination against Fleur should also be regarded as discrimination against
herself. Mrs Cowell said there were also things she was required to do because
of Fleur's disability which she believed other parents did not have to do:
these included signing Fleur in at school, and advising teachers of Fleur's
presence.
The respondent opposed the joining of Mrs Cowell as a party. In particular the
respondent submitted there was no basis in either the complaint or the evidence
which indicated how Mrs Cowell could be regarded as an aggrieved person under
the Act. The respondent did not object to Mrs Cowell bringing the complaint on
behalf of Fleur, but directed my attention to the words of section 69 of the
Act which sets out who may lodge complaints. Complaints can be lodged by "a
person aggrieved" on that person's own behalf, or on behalf of another person.
However, the fundamental criteria in section 69 is that for a person to be a
complainant under the Act, that person must be "a person aggrieved". It was
submitted this must mean a person who is subjected directly to the
discriminatory behaviour alleged. Ms Powell submitted the Act did not
contemplate "the extension of liability to persons without a disability who are
affected in a detrimental way by the effects, in turn, of discriminatory
conduct on a disabled person. To do so would be to extend liability for breach
of statutory duty in an impermissible way."
I note Mrs Cowell did not make a complaint that she was discriminated against
by the School on the ground of the disability of an associate: this basis of
complaint would not be open to Mrs Cowell under section 22(2), as what is
rendered unlawful by that part of the Act is "to discriminate against a student
on the ground of the student's disability or a disability of any of the
student's associates". Mrs Cowell of course was not a student, and nor was she
disabled. It might, however, have been open to Mrs Cowell to make a complaint
under section 24 of the Act in relation to the provision of educational
services by the School to her as a parent (and associate) of a child with a
disability.
Because I have determined to dismiss this complaint, the determination of this
issue is unnecessary for the purposes of this determination. However, it is my
view Mrs Cowell is not properly a complainant in this matter. On the basis of
the complaint before the inquiry Mrs Cowell was not "a person aggrieved" in the
sense referred to in the legislation. That Mrs Cowell naturally is profoundly
affected by the consequences of her daughter's disability goes without saying,
but this is in itself not a sufficient basis to establish unlawful behaviour
under the Act. In any event I am satisfied there is no evidence Fleur has been
subjected to any unlawful discriminatory behaviour under the Act, and under
those circumstances of course, even if Mrs Cowell were appropriately a
complainant, that complaint too would be dismissed. Even if I were to construe
the complaint as one made under section 24 of the Act, there is insufficient
evidence before me to suggest that Mrs Cowell herself was subject to
discrimination in the provision by the School of its educational services to
her as a parent.
7. CONCLUSION
For the reasons given above, pursuant to section 103(1)(a), I make the
following determinations:
(1) I dismiss the complaint alleging harassment of
Fleur by an employee of the respondent School.
(2) I dismiss the complaint made by Fleur alleging
she was subjected to direct discrimination contrary to the Act by the
respondent School.
I certify that this and the preceding forty pages is a true copy of the
Reasons for Decision of Kathleen McEvoy, Inquiry Commissioner.
Hearing Solictor:
Date: 10 October, 2000