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Federal Court of Australia - Full Court Decisions |
Last Updated: 28 July 2006
FEDERAL COURT OF AUSTRALIA
Hurst v State of Queensland [2006] FCAFC 100
DISCRIMINATION LAW – "requirement or condition" that hearing
impaired child be taught in English rather than Auslan, a native Australian sign
language
– whether ability to "cope" without Auslan assistance meant that
child was "able to comply" with "requirement or condition",
pursuant to
s 6(c) of the Disability Discrimination Act 1992 (Cth)
– whether child would suffer "serious disadvantage" without Auslan
assistance – whether suffering "serious disadvantage"
meant child could
not comply with "requirement or condition"
Held: (a) the
primary judge erred in finding that an ability to "cope" without Auslan
assistance meant that child was "able to comply"
with "requirement or
condition"; and (b) the evidence showed that child would suffer serious
disadvantage without Auslan assistance,
and therefore child "not able to comply"
with "requirement or condition", pursuant to s 6(c) of the Disability
Discrimination Act 1992 (Cth)
Disability Discrimination
Act 1992 (Cth), ss 3, 5, 6, 12(8), 22 and 24
Human Rights and
Equal Opportunity Commission Act 1986 (Cth), s 46PO(3)
Access for
All Alliance (Harvey Bay) v Harvey Bay City Council [2004] FMCA 915
cited
Australia Iron and Steel Pty Ltd v Banovic and Others [1989] HCA 56; (1989) 168
CLR 165 referred to
Bogle v Metropolitan Health Service Board (2000)
EOC |P93-069 cited
Byham v Preston City Council (1991) EOC |P92-377
discussed
Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121
followed
Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531; (2000) 105 FCR 573
referred to
Clarke v Catholic Education Office [2003] FCA 1085; (2003) 202 ALR 340
followed
Mandla v Dowell Lee [1982] UKHL 7; [1983] 2 AC 548 discussed
Sluggett
v Human Rights and Equal Opportunity Commission [2002] FCA 987; (2002) 123 FCR 561
discussed
Styles v Secretary of the Department of Foreign Affairs
(1988) 84 ALR 408 cited
Travers v New South Wales [2000] FCA 1565
cited
Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349
discussed
Woods v Wollongong City Council (1993) EOC |P92-486
discussed
TIAHNA HURST (by her next friend GAIL SMITH) v STATE
OF QUEENSLAND (acting through EDUCATION QUEENSLAND)
QUD 187 OF
2005
RYAN, FINN & WEINBERG JJ
28 JULY
2006
MELBOURNE (heard in BRISBANE)
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT
|
BETWEEN:
|
TIAHNA HURST (by her next friend GAIL
SMITH)
APPELLANT |
|
AND:
|
STATE OF QUEENSLAND (acting through EDUCATION
QUEENSLAND)
RESPONDENT |
|
DATE OF ORDER:
|
28 JULY 2006
|
|
WHERE MADE:
|
MELBOURNE (heard in BRISBANE)
|
THE COURT ORDERS THAT:
1. The appeal be allowed.
2. The
orders made by the primary judge be set aside.
3. In lieu thereof there be a declaration that the respondent has contravened s 6 of the Disability Discrimination Act 1992 (Cth).
4. The parties file and serve submissions in relation to any claim for injunctive relief on or before 18 August 2006.
5. The respondent pay the
appellant’s costs of this appeal, and
below.
Note: Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.
ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT
|
AND:
|
REASONS FOR JUDGMENT
1 This is an appeal by Tiahna Hurst (by her next friend, and mother, Gail Smith) from a judgment of Lander J, delivered on 15 April 2005: Hurst and Devlin v Education Queensland [2005] FCA 405. The original proceedings were initiated on Tiahna’s behalf, and on behalf of another young child, Ben Devlin (by his next friend Kim Devlin). Ben succeeded in his application, but Tiahna failed in hers.
2 Tiahna is a "severely to profoundly" deaf child who had developed sign language skills in Auslan (a native Australian sign language), but was not able to utilise that language in the educational arrangements made for her by the State of Queensland (acting through Education Queensland). It was Education Queensland’s requirement that she be taught in English (including signed English) without the assistance of an Auslan teacher, or an Auslan interpreter. The appellant contends that this requirement constituted indirect discrimination under the Disability Discrimination Act 1992 (Cth) ("the Discrimination Act"). Lander J characterised Education Queensland’s insistence upon her being taught in this way as a "requirement or condition" within the meaning of that expression in s 6 of the Discrimination Act. Neither side challenges the correctness of that characterisation.
3 Lander J found that the requirement or condition that Tiahna be taught in English, including signed English, had been imposed upon her, and that it was a requirement or condition with which a substantially higher proportion of persons without her disability was able to comply. He further found that the requirement or condition was not reasonable, having regard to the circumstances of the case. However, he held that Tiahna’s application must fail because she had not established that it was a requirement or condition with which she was "not able to comply". In arriving at that conclusion, his Honour observed that the evidence showed that Tiahna was able to "cope" with her work at school without Auslan.
4 The appeal in this matter relates only to the conclusion that it had not been established that the requirement or condition that Tiahna be taught in English, including signed English, was one with which she was "not able to comply".
5 The essence of the discrimination case put on behalf of Tiahna was summarised by his Honour in the following terms:
"It is that the respondent has discriminated against her by failing to provide her with Auslan instruction and, as a result, her education outcome has been diminished."
6 In effect, Tiahna’s case was that she ought to have been taught in Auslan because that was not merely the best, but the only appropriate, method of communication with profoundly deaf children. However, Education Queensland had required her to receive her education in English, without the assistance of an Auslan teacher or interpreter. The issue was whether Tiahna would need Auslan, in whatever form, if she were to obtain the same quality of education as her hearing peers.
7 His Honour made very detailed reference to the expert evidence given in this proceeding, and made clear findings on that evidence. He noted that the way in which Tiahna’s case had been presented meant that any discrimination from which she might be found to have suffered must have occurred before 30 May 2002, that being the date upon which a written complaint on behalf of Tiahna was first lodged with the Human Rights and Equal Opportunity Commission ("HREOC"). He referred to s 46PO(3) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("the HREOC Act"), noting that it provided that an applicant to this Court alleging unlawful discrimination could not rely upon any facts which had not been presented to HREOC. The unlawful discrimination into which the Court could inquire had to be the same as had been the subject of the complaint to HREOC. That meant that Tiahna could not rely upon any facts in support of her claim to discrimination that had occurred after 30 May 2002. This became an important issue in the appeal to this Court, and will be dealt with in detail later in these reasons for judgment.
FACTUAL BACKGROUND
8 Tiahna was born on 24 February 1998. She first attended an educational institution administered by the respondent in February 1999. She attended a Special Education Development Unit between 1999 and 2001, and then another education unit in Noosaville between June 2001 and February 2002. For some time thereafter she pursued her education at a private institution, but in 2003 she attended a State pre-school. In the period relevant to the complaint, she obviously had not commenced formal grade school education.
9 Tiahna cannot hear any spoken word, and her speech is affected. Nonetheless, she is able to talk, and is capable of being understood by someone who is close to her, and understands the topics which she is addressing. Her mother is not hearing impaired. However, her maternal grandparents are both profoundly deaf. Her grandparents communicate in Auslan. Tiahna’s mother is bilingual, her first language being Auslan, and her second language being English. Her father’s second language is Auslan.
10 To ensure that Tiahna did not fall behind in her classes her parents arranged for her to attend private speech therapy classes for which they themselves paid.
11 Education Queensland acknowledged that it was obliged to make special provision for the education of people with hearing impairments. It formulated a policy to that effect which was entitled "Total Communication Policy". That policy was defined in the following terms:
"1.1 Total Communication refers to a philosophy which states that deaf/hearing impaired students have available to them a variety of methods of communication. It recognises a variety of methods which may be used to facilitate communication, e.g. signs, fingerspelling, lipreading, speech and the use of residual hearing. The emphasis is on the development of communication skills, in particular, the development of language as a basis for all learning.
1.2 In practice, the term Total Communication has been used to refer to the combining of listening, speech, lipreading, signing and fingerspelling to represent English. This combination should more accurately be known as Simultaneous Communication. Thus staff speak and sign simultaneously in Signed English in order to facilitate the student’s English language development through the visual and auditory channels."
12 The Total Communication Policy also included the following statement:
"The Department of Education is committed to the provision of equitable educational opportunities in order that all students have access to, participate in and gain positive outcomes from schooling. Deaf/hearing impaired students are enrolled at all levels of schooling. Our Total Communication philosophy ensures that deaf/hearing impaired children across the state have equal access to an appropriate educational program and a consistent communication approach. Total communication aims to develop all aspects of communication with a focus on the development of language as a basis of all learning."
13 The Total Communication Policy treated signed English as the preferred method of instruction for the development of communication and literacy skills.
14 Signed English is an attempt at reproducing the English language by signs, rather than by word. It is not a language separate from English, and involves a combination of lip reading and signing. Auslan, by contrast, is the natural sign language of the deaf community. It does not have an oral or written component. It is a sign language alone. It has a different linguistic structure to English, both in terms of syntax and morphology.
15 Tiahna is fluent in Auslan, which is her first language. His Honour found that her early exposure to Auslan had resulted in her having gained proficiency in that mode of communication. Indeed, he found that her progress had been extremely good, and that she spoke well and effectively. He observed that she was highly competent in Auslan, and that she had been able to develop linguistically and cognitively to an age appropriate level, and develop a complete range of skills.
16 His Honour went on to find that Tiahna was in the average range across all her skill areas, and maintained parity with her peers. He found that there was no evidence to suggest that she could not be educated in English, including signed English. However, what his Honour did not address was whether, by being so educated, she would experience a deficit in her own education. Rather, he addressed two somewhat different questions, namely whether she could be educated in signed English (to which the answer was that she could), and whether at the time of the complaint she had fallen behind her peers (to which the answer was she had not). He concluded on that basis that she had not demonstrated that she was "not able to comply" with the requirement or condition that the respondent had imposed.
STATUTORY FRAMEWORK
17 Section 3 of the Discrimination Act provides:
"The objects of this Act are:
(a) to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of:
(i) work, accommodation, education, access to premises, clubs and sport; and
(ii) the provision of goods, facilities, services and land; and
(iii) existing laws; and
(iv) the administration of Commonwealth laws and programs; and
(b) to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and
(c) to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community."
18 In substance, the Discrimination Act makes it unlawful to discriminate against a person on the ground of his or her disability in: employment (ss 15-21); education (s 22); access to premises (s 23); the provision of goods, services or facilities (s 24); accommodation (s 25); membership of clubs (s 27); sporting activities (s 28); and the administration of Commonwealth laws and programs (s 29).
19 In the present case, the category of discrimination relied upon was that in relation to education, under s 22.
20 Section 4(1) defines "disability". Tiahna’s disability is not in issue in this case.
21 Section 22(2) provides, in relation to discrimination in education:
"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."
22 Discrimination for the purposes of the Discrimination Act may be either "direct discrimination" under s 5, or "indirect discrimination" under s 6. Tiahna relied only upon "indirect" discrimination, sometimes described as "adverse effect discrimination". This is discrimination which appears to be "facially neutral" but may nevertheless amount to, or result in, "less favourable" treatment in that it appears not to be discriminatory, but has a discriminatory effect.
23 Section 6 is pivotal to this appeal. It provides:
"For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:
(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."
24 In effect, s 6 requires four elements to be satisfied in order to make good a claim of indirect discrimination. These four elements were correctly identified by Lander J (at [66]):
"First, that the discriminator has required the applicant to comply with a requirement or condition. Secondly, that a substantially higher proportion of persons without the applicant’s disability have complied, or are able to comply, with the requirement or condition. Thirdly, the requirement or condition is not reasonable having regard to the circumstances of the case. Fourthly, the requirement or condition must be one with which the applicant has not complied or is not able to comply."
25 Section 6(c), which states that the aggrieved person must demonstrate that he or she has been required to comply with a requirement or condition with which that person does not, or is not able to, comply, lies at the heart of this appeal. Lander J found that Tiahna satisfied each of the first three elements set out above, but did not satisfy the fourth. In other words, his Honour found that Tiahna was "able to comply" with the requirement or condition, as defined. Tiahna contends that he came to that conclusion on the basis that she was able to "cope" without Auslan. The question is whether, if that is so, his Honour approached that issue correctly.
THE PRIMARY JUDGE’S REASONING
26 Tiahna’s contentions, as set out in the pleadings, were summarised by his Honour (at [18] to [37]). These were as follows:
• Tiahna submitted that the best method of communication, for someone in her position, and indeed the only adequate method of communication, was Auslan. She claimed that, if her teachers were familiar with Auslan, she would receive a better education than if she were taught using conventional methods of communication, including signed English;
• Tiahna claimed that if she were taught in Auslan, she would be better able to access education material provided by the respondent "at the same rate and to the same degree" as her hearing peers. She identified "education material" as books, videos and other documents of all description, together with the speech of the teacher, used to communicate ideas, methods and facts referred to in the respondent’s curriculum;
• she contended that the respondent had breached its statutory duty to her by failing to arrange for her to be taught in Auslan;
• she further contended that the respondent’s failure to make available to her any teachers fluent in Auslan had retarded her education, and would "retard it in the future"; and
• she acknowledged that she had been taught by a combination of the spoken word and signed English. However, she claimed that the quality and fluency of the signed English used by her teachers had been poor.
27 His Honour focused to a considerable degree upon the way in which Tiahna’s case had been pleaded. He referred to the particulars that had been provided in support of her claim that the signed English that had been used by her teachers was poor. He was critical of the manner in which that aspect of the case had been particularised. He noted that, in reality, Tiahna’s case, as pleaded, did not relate to the quality and fluency of the signed English, but rather to the claim that any teaching not in Auslan was inappropriate, and of itself amounted to discrimination. In his Honour’s terms (at [32]):
"It seemed to me that [Tiahna’s] claim, as pleaded, was that as a result of the respondent’s failure to provide Auslan communication it had diminished [her] education outcome."
28 At the conclusion of the respondent’s case, both Ben and Tiahna sought leave to file a further amended statement of claim. In Ben’s case, leave was sought to rely upon the alleged poor quality of the signed English used by those who had taught him. Leave was granted, it being understood that the claim in this form raised an issue of direct discrimination under s 5. In Tiahna’s case, the only amendment sought to be made was to plead that she was "severely to profoundly deaf" rather than simply "profoundly deaf". There was no objection to that amendment. No attempt was made to plead a case based upon any supposed deficiencies in the signed English that had been employed by her teachers. In substance, therefore, Tiahna’s case was simply that she had been discriminated against because she had not been taught in Auslan, and had been seriously disadvantaged as a consequence.
29 A good deal of the evidence led on Tiahna’s behalf was directed towards showing that her teachers were not well skilled in the use of signed English. However, the fact that Tiahna was ultimately held to her pleadings, in the terms set out above, meant, as his Honour noted, that much of that evidence was irrelevant.
30 Lander J next dealt with the first of the four elements required in order to make good a claim for indirect discrimination. His Honour said (at [67]) that the expression "requirement or condition" in s 6 of the Discrimination Act should be construed broadly and beneficially, and referred to Australia Iron and Steel Pty Ltd v Banovic and Others [1989] HCA 56; (1989) 168 CLR 165 ("Banovic") at 195 per McHugh J. His Honour also said that the requirement or condition must be something more than is inherent in the goods or services offered or provided, citing Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 ("Waters") at 361 per Mason CJ and Gaudron J.
31 His Honour then observed (at [68]) that the requirement or condition need not be explicit, but could rather be implicit. However, it was essential that the requirement or condition be precisely identified. That was something that neither Ben nor Tiahna had managed to achieve.
32 Ultimately, his Honour undertook that task himself. He refined the "requirement or condition" upon which both applicants were relying (at [80]-[87]) as being, at least implicitly, that they accept an education and receive instruction in English without the assistance of an Auslan teacher or interpreter.
33 Turning to the second element, Lander J identified the group with which Tiahna’s ability to comply had to be compared as being her hearing peers. His Honour concluded (at [79]):
"Notwithstanding the respondent’s submission to the contrary, there is no doubt that a substantially higher proportion of non-hearing impaired persons can comply with the requirement or condition because the instruction they receive is in English."
34 After careful consideration of a large body of evidence, his Honour concluded that Tiahna had satisfied the third element of indirect discrimination, saying (at [797]):
"In my opinion, it was not reasonable for Education Queensland to not provide Auslan teachers or interpreters to Tiahna and Ben if they were not able to comply with the condition that they receive their instruction in Signed English. In other words, whilst they have not succeeded in establishing that it was not reasonable of Education Queensland to not have introduced a bilingual-bicultural program by 30 May 2002, they have succeeded, in my opinion, in establishing that it would have been of benefit to both of them to have been instructed in Auslan rather than in English."
35 His Honour added (at [802]):
"In my opinion, Tiahna has established that, throughout the whole of her education in Education Queensland’s schools, it was not reasonable of Education Queensland not to provide her with an Auslan teacher or interpreter."
36 The fourth element, and the only one which Tiahna was not able to satisfy, was that she demonstrate that she was "not able to comply" with the requirement or condition that she be educated in English, without the assistance of an Auslan teacher or interpreter.
37 In that context, his Honour referred to the evidence in Ben’s case which overwhelmingly showed that his education had suffered, and that he had fallen far behind his peers. He concluded that Ben had not been able to comply with the requirement or condition, as his Honour had redefined it.
38 When it came to Tiahna, however, his Honour said (at [809]-[822]):
"On the other hand, in my opinion, the evidence does not support a finding that Tiahna has not been able to comply with the same requirement or condition.
On the expert evidence called by her, she has been able to receive her education in English and in Signed English.
Tiahna has a verbal IQ of 98 and a performance IQ between 98 and 100. There is no disparity in that regard. She is in the average range across all her skill areas: Ms Wilson [570] to [573].
She has good oral skills. She can cope in a regular classroom environment: Mr Morris [589] to [591].
She has maintained parity with her hearing peers.
Professor Lane said that Tiahna should have Auslan instruction: [607]. He did not say that Tiahna could not comply with a requirement or condition that Tiahna receive her education in English.
Professor Branson’s evidence tended to establish that Tiahna could cope with education in English: [630].
Ms Pardo did not say that Tiahna could not comply. If her evidence in par 22 of her affidavit of 18 August 2003 suggested Tiahna could not comply, although in my opinion it does not, I reject that evidence. As I have already said, I prefer the evidence of the other experts to that of Ms Pardo.
There is no evidence, or no evidence which I am prepared to accept, to support a finding that Tiahna cannot be educated in English, including Signed English.
No doubt it was for that reason that she put her case in the rather convoluted way that she did in par 38 of her Statement of Claim. However, I am not prepared to find that that is a requirement or condition for the purpose of the Act. In my opinion, for reasons already given, the appropriate requirement or condition is to be taught in English without the assistance of an Auslan teacher or an Auslan interpreter.
On Tiahna’s own evidence, she has not established that she has fallen behind her hearing peers. It might be that she has not fallen behind her hearing peers because of the attention which she receives from her mother and the instruction which she no doubt receives from her mother in Auslan.
However, this is a matter upon which the experts have not discriminated.
In my opinion, it is enough to say that she has not satisfied that she is not able to comply with the requirement or condition that she be instructed in English without the assistance of an Auslan teacher or an Auslan interpreter.
Her case fails on that basis."
39 It should be noted that his Honour went on to deal with Tiahna’s claim for compensation, if contrary to his primary conclusion, she was not able to comply, and had therefore been subject to indirect discrimination. His Honour said (at [825]-[827]):
"However, in case I am wrong about the findings already made, I should briefly address the question of compensation in her case. If, contrary to my findings, Tiahna has established a case of indirect discrimination, in my opinion, on the expert evidence which has been called she has not established any loss or damage.
She has not fallen behind her hearing peers. There is no evidence to say that she would have done better than her hearing peers. Therefore, she has not established, in my opinion, that over the relevant period for which Education Queensland was responsible for her education, as a result of any breach of the Act, she has suffered any loss or damage.
Therefore, if I had had to assess compensation, I would not assess her compensation at any more than a nominal amount."
TIAHNA’S SUBMISSIONS
40 Tiahna’s notice of appeal dated 7 July 2005 contains the following grounds of appeal:
"1. His Honour found:
a. there was a relevant requirement or condition imposed that the Appellant be educated without an Auslan interpreter or Auslan teacher (at par. 85);
b. a substantially higher proportion of the non-disabled population can comply with the requirement (at par. 79);
c. the requirement was not reasonable (par. 797, 802);
d. The Appellant was able to comply with the requirement as she was able to "cope" without Auslan (par. 812, 817, 821);
e. while the Appellant may be able to perform fairly well without Auslan, she would benefit from Auslan and would suffer a significant disadvantage without it (par 591-2, 607, 631, 797).
2. Having made the findings noted in paragraph 1 above, His Honour erred in concluding that, in providing education to the Appellant, the Respondent did not breach the Disability Discrimination Act 1992 because the Appellant could "cope" in the classroom without an Auslan interpreter.
3. Having made the findings noted in paragraph 1 above, his Honour should have found that the requirement imposed by the Respondent breached the Disability Discrimination Act 1992.
4. His Honour ought to have held that the Appellant could not comply with the relevant requirement or condition imposed on the Appellant by the Respondent, namely that the Appellant be educated without an Auslan interpreter."
41 Mr Burnside QC, who appeared with Mr Gray for Tiahna on the appeal, submitted that her case was really quite simple. She claimed that, because she was profoundly deaf, the only way in which she could receive the full benefit of her education was with the help of an Auslan interpreter. She could not be taught effectively in spoken English because she could not hear. Signed English, which had been used as the mode of communication by her teachers, was inferior to Auslan.
42 Mr Burnside submitted that his Honour, at [66] of his reasons for judgment (which is set out at [24], above), had correctly identified the four elements necessary to establish indirect discrimination. He noted that the only reason Tiahna’s claim had been rejected was because his Honour found that she was able to comply with the requirement or condition. He submitted that his Honour had misconstrued the expression "not able to comply" in s 6(c) by equating an ability to "cope" with an ability "to comply".
43 Mr Burnside referred to Lander J’s findings regarding Tiahna’s verbal and performance IQ, oral skills and ability to "cope" in a regular classroom environment. He noted that a number of witnesses called on Tiahna’s behalf, all of whose evidence his Honour accepted, had indicated that Tiahna should have Auslan instruction.
44 It was one of those witnesses, Mr Ronald Morris, a speech pathologist and audiologist, who introduced the verb "cope" into this proceeding. He said that given Tiahna’s "good oral language skills", she could "be expected to cope in a regular classroom environment". However, he added that "she would benefit greatly from access to signing in her classroom". As she had been exposed to Auslan from an early age, this would be the most appropriate signed system to use with her. Auslan support in the classroom would allow her "to achieve at the level of her potential". Without it, "she would cope, but not reach her full educational potential".
45 Mr Burnside submitted that by equating an ability to cope with an ability to comply, as his Honour had plainly done, he had fallen into error. He submitted that the finding that Tiahna could "cope" without Auslan meant nothing more than that she could be taught in English, including signed English. However, she would have to continue to receive significant additional help from her family in order to approach her full educational potential. Being able to "cope" without Auslan did not mean that she had not been seriously disadvantaged in the past, or that she would not be seriously disadvantaged in the future. There was a significant difference between being able to "cope", and being able to "flourish".
46 Mr Burnside next submitted that the word "educated" in his Honour’s formulation of the relevant requirement or condition ought to be given a broad and practical meaning. He submitted that it should be understood as referring to more than merely the ability to acquire the basic instruction necessary for survival in society. It should be viewed, in context, against the considerations of equality of opportunity identified in the objects of the Discrimination Act, as well as the Declaration on the Rights of Disabled People, the international instrument that the Discrimination Act was intended to implement.
47 Mr Burnside contended that the approach taken by his Honour to the issue of ability to comply could not be reconciled with the notion that signing deaf students should have the same access to the curriculum and class participation as hearing students. Rather, his Honour’s approach suggested that it was sufficient to meet the requirements of the Discrimination Act that a disabled student could gain some access, though not complete access, to educational opportunities. He submitted that this approach was hardly consistent with a key tenet of Waters, to the effect that indirect discrimination involves "less favourable" treatment, and was to be viewed in relative and not absolute terms.
48 The passage in Waters upon which Mr Burnside relied is from the joint judgment of Dawson and Toohey JJ, where their Honours said (at 392):
"Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race). On the other hand, indirect discrimination occurs where one person appears to be treated just as another is or would be treated but the impact of such "equal" treatment is that the former is in fact treated less favourably than the latter. ... Both direct and indirect discrimination therefore entail one person being treated less favourably than another person. The major difference is that in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable."
49 Mr Burnside submitted that, although his Honour had referred to this passage, its importance appeared to have escaped his attention.
50 Mr Burnside next referred to Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121 ("Clarke FC"), the decision of a Full Court of this Court, dismissing an appeal from Madgwick J. At first instance his Honour held that an educational authority had indirectly discriminated against a student by refusing to provide an Auslan interpreter, thereby according him "less favourable treatment": Clarke v Catholic Education Office [2003] FCA 1085; (2003) 202 ALR 340 ("Clarke").
51 Mr Burnside submitted that Clarke, both at first instance and on appeal, had proceeded upon the footing that the condition found to be discriminatory should be characterised as being that the student participate "fully" in the educational activity, without the assistance of an Auslan interpreter. Implicitly, if by reason of the student’s disability full participation could not be achieved, he or she would not be able to comply with that condition.
52 Mr Burnside argued that if the Discrimination Act were to be read as the legislature intended, the question to be determined would simply be whether Tiahna, by reason of her disability, had been denied the full educational benefits available to others, which, with Auslan assistance, she could have attained.
53 In support of that submission, Mr Burnside referred to Waters, where Mason CJ and Gaudron J said (at 361):
"Once the service provided by the Corporation was identified ... by the Board as public transport as affected by the changes directed, it was open to it to find ... that the removal of conductors from some trams involved the imposition of a condition that the complainants could fully avail themselves of the tram service only if they could use trams without the assistance of conductors. And a condition of that nature falls within the ordinary conception of a "requirement or condition" ... Indeed, it is apparent that it was within the intended operation of s 17(5)(a), for, when stated in this way, what is revealed is the less favourable treatment of those who need the assistance of conductors as against those who do not. Of course, that does not answer the question whether that is less favourable treatment on the ground of status." (emphasis added)
54 In Clarke FC, Tamberlin J observed that this passage indicated the importance of the proper characterisation of the requirement from the perspective of the disabled person.
55 Mr Burnside submitted that a person’s inability to "fully avail themselves" of the public transport system, as in Waters, leading to "less favourable treatment" by reason of the relevant disability, had particular resonance in relation to Tiahna’s case. She could be educated in some fashion without an Auslan interpreter, but that education would not be as effective for her as it would be for a hearing peer. Therefore, she too suffered "less favourable treatment".
56 Finally, Mr Burnside submitted that the only real difference between Tiahna’s situation and that of Ben was that she had greater natural ability, and had worked harder outside the class in order to overcome her hearing impairment. The fact that she could "cope" without Auslan did not mean that she had not been seriously disadvantaged without it. It only meant that her detriment was masked. Lack of Auslan assistance was an educational disadvantage to Tiahna because it denied her the opportunity to realise her full potential. In the case of a less able student, it might cause that student to fail rather than pass. In Tiahna’s case, it caused her to perform at an average level rather than excel. In both cases, there is serious disadvantage. Neither student performs to the best of his or her ability. And in both cases the student is relevantly unable to comply with a condition that he or she receive an education without Auslan assistance.
HREOC’S SUBMISSIONS
57 HREOC sought and was granted leave to intervene in this appeal. Its submissions were directed primarily towards Lander J’s discussion of s 6(c) of the Discrimination Act. Mr Lenehan, who appeared on behalf of HREOC, supported Mr Burnside’s contention that his Honour had misconstrued the section. However, he added a further criticism, namely that his Honour had failed to have regard to a line of authority, in this country and overseas, which supported a broad, flexible approach to the issue of ability to comply.
58 Mr Lenehan referred to Mandla v Dowell Lee [1982] UKHL 7; [1983] 2 AC 548 ("Mandla"). The appellant in that case was a Sikh student who wore long hair and a turban. He was subjected to a requirement that as a condition of entry to his school he should wear short hair and a cap.
59 Lord Fraser, when dealing with s 1(1)(b)(i) of the Race Relations Act 1976 (UK), a provision similar in scope to s 6(c), said of the expression "can comply" (at 565-6):
"It is obvious that Sikhs, like anyone else, "can" refrain from wearing a turban, if "can" is construed literally. But if the broad cultural/historic meaning of ethnic is the appropriate meaning of the word in the Act of 1976, then a literal reading of the word "can" would deprive Sikhs and members of other groups defined by reference to their ethnic origins of much of the protection which Parliament evidently intended the Act to afford to them. They "can" comply with almost any requirement or condition if they are willing to give up their distinctive customs and cultural rules ... The word "can" is used with many shades of meaning. In the context of section 1(1)(b)(i) of the Act of 1976, it must, in my opinion, have been intended by Parliament to be read not as meaning "can physically," so as to indicate a theoretical possibility, but as meaning "can in practice" or "can consistently with the customs and cultural conditions of the racial group." ... I am of opinion that the "No turban" rule was not one with which the second appellant could, in the relevant sense, comply."
60 Mr Lenehan submitted that Mandla had been cited with approval on a number of occasions in this country by courts that had considered indirect discrimination. See for example: Sluggett v Human Rights and Equal Opportunity Commission [2002] FCA 987; (2002) 123 FCR 561 per Drummond J ("Sluggett"); Travers v New South Wales [2000] FCA 1565 per Lehane J ("Travers"); Styles v Secretary of the Department of Foreign Affairs (1988) 84 ALR 408 per Wilcox J; and Banovic at 197 per McHugh J. It had also been cited with approval by the Western Australian Equal Opportunity Tribunal in Bogle v Metropolitan Health Service Board (2000) EOC |P93-069 ("Bogle"). He submitted that these cases supported the proposition that s 6(c) should be given a "broad" (see Sluggett (at [51])) or "reasonably liberal" (see Travers (at [17])) construction. As in Mandla, the fact that a person can literally "comply" with a requirement or condition does not prevent the person from being relevantly unable to comply with that requirement or condition. Rather, Mr Lenehan submitted, a wider enquiry was required taking into account matters such as the practicality of compliance (see: Sluggett at [51]) and the reasonableness of being required to comply (see Bogle (at 74,224) and Access for All Alliance (Harvey Bay) v Harvey Bay City Council [2004] FMCA 915 per Baumann FM (at [9] and [12])).
61 Mr Lenehan then cited several additional cases in support of his contention that s 6(c) should be construed in a broad and flexible manner.
62 In Byham v Preston City Council (1991) EOC |P92-377 ("Byham"), a complaint was lodged with the Victorian Equal Opportunity Commission by an elderly man who used crutches. Various meetings that he wished to attend required him to ascend stairs. The "requirement" was characterised as his use of the staircase. He could comply with that requirement, but only with his son’s assistance. It was held that he was "unable to comply with the requirement set by the respondent in a similar manner to the way in which a person not so impaired could comply".
63 In Woods v Wollongong City Council (1993) EOC |P92-486 ("Woods"), the requirement or condition was that a woman in a wheel-chair use stairs or an escalator. The Equal Opportunity Tribunal observed that, if a literal construction were adopted, it could be said that the applicant would be able to comply with that condition with "able bodied assistance". It considered, however (at 79,506):
"... that compliance with this requirement should be interpreted in a practical sense so that, unless the complainant could comply with the requirement without assistance, she must be regarded [for the purposes of the relevant provision] as being unable to comply."
64 In Travers, a 12 year old girl suffered spina bifida and resultant bowel and bladder incontinence. She was denied access to a toilet accessible to her within the few seconds that she required to walk there before she wet herself. Lehane J held that, while it was not literally impossible for her to comply with the condition (that she use a toilet not within her immediate proximity), that consequence would have been seriously embarrassing and distressing. She was therefore not "able to comply" with the requirement or condition in the sense required by the statute.
65 As previously indicated, in Clarke at first instance, Madgwick J found that the applicant, a student called Jacob, had suffered indirect discrimination. The significance of his Honour’s reasoning lay in the fact that he found that Jacob could have been taught without Auslan assistance. However, without such assistance, he would be unable to "meaningfully "participate" in classroom instruction" in ways that his Honour described. Madgwick J had no hesitation in characterising this as "serious disadvantage".
66 Mr Lenehan remarked upon the fact that Lander J did not refer to the Full Court’s approval of Madgwick J’s judgment, nor to any of the other authorities discussed above. He submitted that Byham, in particular, established that an ability to "cope" with a requirement or condition (albeit with some degree of hardship and personal indignity), should not be equated with an ability "to comply". He said that the same point could be made about Mandla, Woods, and Travers. Where the applicant’s ability to "cope" would be accompanied by indignity or disadvantage not suffered by those not affected by the relevant disability, indirect discrimination would exist.
67 Mr Lenehan submitted that there was ample evidence before Lander J that Tiahna had suffered disadvantage comparable to that in Byham. For example, Mr Morris’ evidence was that she had been disadvantaged, as compared with her hearing peers, by having to undertake additional work out of class in order simply to keep up.
68 Mr Lenehan also submitted that Tiahna’s ability to "cope" was the result largely of her parents’ efforts to help her to overcome her difficulties. He submitted that Lander J had erred by failing to recognise that when Madgwick J, in Clarke at first instance, spoke of the need to prove a "serious disadvantage" with the result that the applicant could not "meaningfully participate" in classroom instruction, his Honour was not purporting to lay down a definitive test, but merely describing the actual disadvantage suffered by Jacob in that case. He submitted that the correct test of whether a person is unable to comply is whether circumstances said to constitute compliance would involve the person being placed at a "non-trivial disadvantage" compared to people not affected by the relevant ground of discrimination. He contended that, had his Honour applied the correct test, he would have found for Tiahna.
69 Mr Lenehan submitted that HREOC’s preferred approach to the construction of s 6(c) was supported both by ordinary principles of construction, and a consideration of the objects and scheme of the Discrimination Act. It was also supported by Waters, and its discussion of "less favourable treatment".
70 Mr Lenehan submitted that the Discrimination Act is remedial and aims to prevent discrimination and uphold equal opportunity. Accordingly, it should be construed beneficially, and not in any narrow way. He submitted that the courts have a special responsibility to take account of, and give effect to, the objects and purposes of remedial legislation. These objects include the promotion of autonomy and self-reliance on the part of people with disabilities. It would be contrary to those objects that disabled people should be required to choose between taking positive steps in an effort to lead independent lives, and retaining their rights to compensation under the Discrimination Act.
71 Mr Lenehan further submitted that to construe s 6(c) in the manner for which HREOC contended would align that provision with s 6(a), as that section had been construed in Clarke FC. There, Sackville and Stone JJ said (at [111]):
"Section 6(a) is satisfied if the requirement or condition is one with which a "substantially higher proportion of persons without the disability comply or are able to comply". This language implicitly requires a comparison to be made. Clearly enough, one comparator is a group of persons without the disability. The other comparator is not, however, specifically identified. But as Dawson J observed in Australian Iron & Steel v Banovic at 187, a "proportion must be a proportion of something". This suggests that the second comparator is a group of persons with the disability. The comparison is not with the aggrieved person, since that person’s ability to comply with the requirement or condition is addressed in s 6(c). In any event, it does not accord with the ordinary use of language to refer to the "proportion" able to comply with a requirement in relation to only one person."
72 Mr Lenehan submitted that it was important to observe that s 6(a) used similar language to s 6(c). Both provisions contained within them the expression "able to comply". If Lander J’s narrow and somewhat inflexible approach to s 6(c) were also taken to s 6(a), there would be considerable difficulty in identifying the correct comparator group in relation to that section. Matters such as family support and other forms of assistance would need to be considered. This would create significant evidentiary difficulties.
73 Mr Lenehan argued that Madgwick J’s approach to the issue of ability to comply avoided this difficulty. That was because, in his terms, the potential multitude of methods of "coping" could largely be excluded from consideration on the basis that they involved disadvantage of some substance to the pool members and therefore would not constitute compliance for the purpose of s 6(a).
74 Mr Lenehan submitted that s 6(b) was also relevant to the construction of s 6(c). He drew attention to the discussion by Sackville and Stone JJ in Clarke FC of the factors to be taken into account when considering whether or not the relevant condition or requirement was reasonable (at [115]):
"The Court must weigh all relevant factors. While these may differ according to the circumstances of each case, they will usually include the reasons advanced in favour of the requirement or condition, the nature and effect of the requirement or condition, the financial burden on the alleged discriminator of accommodating the needs of the aggrieved person and the availability of alternative methods of achieving the alleged discriminator’s objectives without recourse to the requirement condition: Waters v Public Transport Corporation at 395, per Dawson and Toohey JJ (with whom Deane J agreed on this point, at 383-384). However, the fact that there is a reasonable alternative that might accommodate the interests of the aggrieved person does not of itself establish that a requirement or condition is unreasonable: Commonwealth Bank v HREOC at 88, per Beaumont J; Victoria v Schou [2004] VSCA 71; (2004) 8 VR 120 at [26], per Phillips JA."
75 Mr Lenehan noted that the Court in Clarke had observed, immediately before the preceding passage, that the test of reasonableness was less demanding than a test of necessity, but more demanding than a test of convenience. As such, the question was not whether the decision to impose the requirement or condition was correct, but whether it had been shown not to be objectively reasonable having regard to the circumstances of the case. He submitted that the Court should exercise a degree of deference when considering the actions of a respondent regarding which reasonable minds might differ.
76 Mr Lenehan submitted that, given the breadth of the Court’s inquiry into the issue of "reasonableness", Madgwick J’s construction of s 6(c) created no practical difficulties, and did no violence to the scheme of the Discrimination Act. "Reasonableness" would continue to mark the outer limits of liability for indirect discrimination claims, and would allow consideration of the legitimate interests of respondents, as the legislature intended.
77 Finally, Mr Lenehan submitted that the Discrimination Act should be construed consistently with international human rights instruments and human rights standards generally. This required the Act to be interpreted and applied in a broad and benevolent manner.
78 He referred to the International Covenant on Civil and Political Rights which requires Australia to proscribe discrimination on various grounds including disability. Discrimination is recognised in this context as including indirect discrimination.
79 Mr Lenehan submitted that Australia was obliged to proscribe a broad range of "detrimental effects" experienced disproportionately by people with disabilities, subject only to the outer limits of reasonableness. He submitted that s 6(c) should be construed in a manner that accorded with that obligation.
80 Mr Lenehan further submitted that Australia was obliged to take measures to ensure that people with disabilities can be as self-reliant as possible. This was said to be consistent with art 5 of the Declaration on the Rights of Disabled Persons, which provides:
"Disabled persons are entitled to the measures designed to enable them to become as self-reliant as possible."
81 It was also said to be consistent with art 23(1) of the Convention on the Rights of the Child, which provides:
"States Parties recognize that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in the community."
82 He submitted that Lander J’s approach to s 6(c) would have a tendency to discourage efforts to achieve self-reliance, and was therefore inconsistent with those obligations.
THE STATE OF QUEENSLAND’S SUBMISSIONS
83 Mr Bain QC, with whom Mr Murdoch appeared, submitted on behalf of the State of Queensland that the requirement or condition that Tiahna accept an education and receive instruction in English without the assistance of an Auslan teacher or interpreter, as expressed by Lander J (at [85]), was a requirement or condition with which Tiahna was "able to comply".
84 The evidence was that Tiahna could be taught in English, including signed English, and still maintain parity with her hearing peers. His Honour had made these findings at [810], [813], [817] and [821] respectively.
85 Mr Bain noted, as his Honour had found, that Tiahna’s verbal IQ of 98, and performance IQ of between 98 and 100, put her in the average range across all skill areas. The evidence showed that she had good oral skills and could cope in a regular classroom environment. There was no evidence to suggest that she could not comply with a requirement or condition that she be taught in English, including signed English.
86 Mr Bain challenged Mr Burnside’s contention that Lander J had found that Tiahna would "suffer significant disadvantage without Auslan". He submitted that, not only had his Honour not made any finding of that kind, but there was no evidence to support it.
87 Mr Bain relied, in particular, upon the evidence of Ms Rosemary Horn, the Head of Special Education Services at Burnside State High School who, having worked with Tiahna from 1998 to 2001, with the exception of a period in 1999, observed that she "communicated with age appropriate levels". Ms Horn also observed that, as Tiahna got older, she displayed quite good oral/verbal skills.
88 Ms Horn’s evidence was supported by that of Ms Alison Mosley, a Special Education Teacher employed by Education Queensland, who dealt with Tiahna in 2001, and by that of Ms Susan Davis, an Advisory Teacher employed by Education Queensland with qualifications in special education. Ms Davis observed that Tiahna "was performing well in terms of her English language and speech skills" and was able to "communicate effectively" through spoken language.
89 In addition, Mr Bain referred to the evidence of Ms Veronica Pardo, Senior Policy Advisor with the Victorian School for Deaf Children, Services for Deaf Children ("VSDC"). Ms Pardo was of the opinion that Tiahna "effectively uses speech and speech reading to communicate" with "no-signers" and speaks "very well". Finally, Ms Lynette Wilson, a psychologist and teacher of deaf children also employed by VSDC, stated that Tiahna had developed a complete range of skills. She assessed Tiahna as being "well into the average range across all of her skills areas, including language, although...... her vocabulary scores were a little low".
90 Mr Bain submitted that Lander J had correctly concluded that, in determining whether Tiahna had been subjected to unlawful discrimination, the Court was confined temporally to the period leading up to, and ending on, 30 May 2002. His Honour’s finding in that regard accorded with the decision of Katz J in Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531; (2000) 105 FCR 573. Accordingly, the period of the alleged indirect discrimination was from Tiahna’s birth, on 24 February 1998, until 30 May 2002. That meant that the Court could not have regard to any facts that occurred outside that period.
91 Mr Bain submitted that throughout that period, several educational services had been made available to Tiahna. For example, Ms Horn had visited her regularly, and conducted weekly sessions with her with the object of developing her receptive and expressive language skills. In addition, Tiahna received help from Ms Davis on a one-to-one basis. She also received special tuition at Noosaville SEDC. The sessions were conducted by special education teachers and teacher aides. The details of these special programs were set out in various affidavits, and included early childhood activities, painting, play dough, reading, use of props and early literacy.
92 Mr Bain argued that the evidence showed that, at all material times, the education offered to Tiahna had been on a one-to-one basis or, at worst, within a small group of perhaps three or four children. She had benefited from a specially tailored program conducted by specialist teachers targeting specific areas of her identified educational needs. The requirement or condition that she be educated in English, without Auslan assistance, had to be understood in the context of this highly specialised environment, and against the background of a child who, at all material times, was very young.
93 Mr Bain submitted that Lander J’s findings showed that, although Tiahna would have benefited from the presence of an Auslan interpreter, she was, as a practical matter, able to receive and benefit from the education provided to her, albeit in English and in signed English.
94 Mr Bain submitted that, since the only issue to be determined on the appeal was whether Tiahna was able to comply with the requirement or condition imposed upon her, Lander J’s finding that she was able to be educated without an Auslan teacher or interpreter was dispositive. He submitted that given his Honour’s finding that Tiahna had been able to cope adequately despite being taught only in English, her claim that she would have been better off being taught in Auslan was irrelevant, even if true.
95 Mr Bain submitted that despite Mr Burnside’s contention to the contrary, there was actually little difference between the parties as to the meaning to be ascribed to s 6(c). He accepted that the authorities supported the view that the expression "able to comply" in s 6(c) necessitates an inquiry into whether the aggrieved person is able, in a practical, as opposed to a theoretical sense, to comply with the particular requirement, having regard to the factual setting in which the requirement exists. He referred to Sluggett (at 576) in that regard. He submitted that Sluggett simply reflected the reasoning of the House of Lords in Mandla.
96 Mr Bain also accepted that both Sluggett and Mandla supported a broad and flexible construction of s 6(c). However, there were limits to the meaning that could properly be accorded to the section. In the end, the word "comply" simply meant "comply". It did not mean "comply to the fullest imaginable extent".
97 Mr Bain noted that both Tiahna and HREOC stressed the remedial nature of the Discrimination Act, and the need, consequently, to interpret it beneficially and not narrowly. He did not disagree with that proposition. However, he submitted that the Discrimination Act should not be required to "carry a traffic it was not designed to bear". Any beneficial operation would be "prejudiced by invoking its assistance to achieve remedies which can only be achieved by straining the legislative language": see Waters (at 372, per Brennan J).
98 Mr Bain argued that Tiahna’s case, put simply, was that she would only be "able to comply" with the requirement or condition, as formulated, if it could be shown that she had been taught in the most advantageous manner theoretically available. That was not what the Discrimination Act required. There was nothing to suggest that "full compliance", rather than simply "compliance", was necessary.
99 Mr Bain acknowledged that the Discrimination Act was aimed at eliminating discrimination. However, it was not intended to grant additional rights, but rather to ensure that persons who are disabled have basically the same rights as others. Tiahna’s argument, if accepted, would shift the emphasis under the Discrimination Act from the need to ensure equal treatment to a need to ensure treatment that is as favourable as possible for that particular person. There was nothing in the Act that required Tiahna to be given an optimal education. The only question was whether she could be educated satisfactorily in the program offered. The answer to that question, as his Honour determined, was that she could.
100 Mr Bain submitted that the question of compliance could only, as a practical matter, ever require optimal satisfaction if the requirement itself could only be met by optimal satisfaction. He put forward as an example the ability to use scratch tickets that was the subject of the appeal in Waters. A person is either able to use scratch tickets, or not able to do so. There is no inherent flexibility of the kind built into a subjective and necessarily imprecise activity such as education. In other words, in the sphere of education, a requirement or condition such as that found by his Honour to exist in the present case can be satisfied by significantly less than optimal attainment. Otherwise, the internally inconsistent result would be that only those who are "educated" to the optimal level are "educated" at all.
101 In Mr Bain’s submission, he noted that Tiahna’s case was that her treatment was "less favourable" than that of her hearing peers. However, there was no evidence to support that conclusion. If there had been any such evidence, then Lander J was not persuaded by it. Tiahna, of course, had the onus of proof.
102 Mr Bain submitted that Tiahna’s case could readily be distinguished from that of Ben. Tiahna’s case could also be readily distinguished from that of Jacob in Clarke. In Clarke, the evidence was that Jacob could not "meaningfully" receive a classroom education at the relevant school. Plainly, that was not the position so far as Tiahna was concerned, at least in the period leading up to 30 May 2002. The fact that she had benefited from the additional steps taken by her parents in the hope that this might enable her to achieve her potential was of no consequence so far as s 6(c) was concerned. It mattered not how she was "able to comply", but only that she was able to do so.
103 Finally, Mr Bain submitted that the fact that Tiahna’s mother harboured the wholly laudable aim of achieving the best possible educational outcome for her daughter, and was deeply disappointed because Auslan assistance was not available, did not mean that the respondent had contravened the Discrimination Act. Tiahna’s case was based upon aspiration. It did not reflect any inability on her part to comply.
CONCLUSIONS
104 It is important to note that, as a prelude to Lander J’s finding that Tiahna could comply with the relevant requirement or condition, he referred to the evidence of Mr Morris and Professor Janet Branson to the effect that Tiahna could "cope" in a regular classroom environment without the benefit of Auslan assistance. It was in that context that he observed that she had not fallen behind her hearing peers. It was on the basis of these findings that her case failed.
105 The central issue in this appeal is whether his Honour approached Tiahna’s case on the right basis. That depends upon whether he construed the expression "able to comply" in s 6(c) correctly.
106 Regrettably, in our view, his Honour allowed himself to be distracted by the somewhat unsatisfactory manner in which Tiahna’s case was presented below. Ultimately, this led him to focus upon the wrong issues. In considering questions of parity between Tiahna and her hearing peers, and whether she had the ability to "cope", his Honour failed to address the real issue in Tiahna’s case. That was whether, by reason of the requirement or condition that she be taught in English without Auslan assistance, she suffered serious disadvantage.
107 As previously indicated, Lander J concluded that there was no evidence, or none that he was prepared to accept, "to support a finding that Tiahna cannot be educated in English, including signed English". Without in any way impugning that conclusion, it does not follow that Tiahna thereby failed to establish that she was "not able to comply with" the requirement or condition, as formulated.
108 There was a substantial body of evidence before his Honour, all of which he accepted, that suggested that irrespective of how well Tiahna had "coped" without Auslan assistance, she had nonetheless suffered serious disadvantage by being denied that assistance throughout the relevant period.
109 For example, Professor Branson, Professor of Education and Director of the National Institute for Deaf Studies and Sign Language Research at La Trobe University, said:
"Research into the academic performance of profoundly deaf children show that those students who have access to natural sign language as a fully fledged first language have consistently higher literary skills than those who have had no access to sign language or have only access to signed English.
...
Tiahna’s entrance into the educational system will constitute a significant change in her linguistic environment. No longer will she access a bilingual environment, as she currently does. Given this fact, we can no longer be certain of an age appropriate continuation in pace of her linguistic and cognitive development. In my view, a change to an English based linguistic environment is likely to have deleterious effects on that development."
110 Professor Harlan Lane, who is University Distinguished Professor at North-Eastern University in Boston, and holds a Doctor of Letters in Linguistics, said:
"Tiahna should have formal and informal instruction in Auslan to maintain and develop her competency, including associating with Deaf children of Deaf parents, who acquire Auslan as a native language, and with other fluent users.
If Tiahna cannot have teachers who use fluent Auslan, then she must have interpreters who are fluent in Auslan, so that she can understand the teacher and can participate as fully as possible in her education.
...
There is no alternative to full time educational use of Auslan with Tiahna if she is not to be held back academically and developmentally. Spoken language is not accessible to her; invented signed languages, like signed English, do not have the necessary properties of natural languages and are based on a language she does not know well and cannot hear – English."
111 Importantly, Mr Morris, whose evidence was accepted "in all respects" said:
"Given Tiahna’s good oral language skills she can be expected to cope in a regular classroom environment but due to the degree of her hearing loss she would be unlikely to comprehend all of the instruction easily. She would require significant amounts of pre and post teaching to reach her educational potential if an oral only approach were used in the classroom. Tiahna would benefit greatly from access to signing in her classroom and as she has been exposed to Auslan from an early age this would be the most appropriate signed system to use with her. The provision of appropriate sign language support in the classroom will allow Tiahna to achieve at the level of her potential, without it she would cope but not reach her full educational potential."
112 In addition, Ms Wilson said:
"I believe that for Tiahna to have the best access to a full education which will enable her to fulfil her potential, she must be taught by staff who use full and accessible Auslan in all its natural variations. She must also be able to continue to watch a wide range of users of Auslan in conversation."
113 This evidence, taken as a whole, strongly suggested that Tiahna had suffered (and would be likely to continue to suffer) serious disadvantage as a consequence of being taught in English, without the benefit of supplementary instruction in Auslan. A common theme in these experts’ opinions was that, because Tiahna was proficient in Auslan, which was also her first language, she could not reach her full educational potential unless taught in that language. English, including signed English, would not be an adequate alternative, at least so far as Tiahna was concerned.
114 Mr Bain, perhaps because he apprehended that his Honour’s approach to s 6(c) might give rise to some conceptual difficulties, elected in the appeal to focus heavily upon the temporal limits of the Court’s inquiry. In substance, he submitted that Tiahna had been so young throughout most of the period relevant to the alleged discrimination, that she could not sensibly be said to have suffered any serious disadvantage merely by having been denied Auslan assistance. He submitted that, given that any disadvantages sustained after 30 May 2002 had to be disregarded, much of the evidence led on Tiahna’s behalf bearing upon that issue was irrelevant. He referred in particular to the evidence concerning her ability to communicate, as manifested in interviews conducted shortly before affidavits were sworn, and well after the end of the claim period.
115 In some ways, the case put on appeal on behalf of the respondent bore little resemblance to the case put below. Certainly, Lander J did not touch upon the temporal limits of the claim, at least in so far as they bore upon the evidence, in dismissing Tiahna’s application. On the other hand, despite the unsatisfactory way in which her case was presented below, Tiahna’s claim has always remained essentially the same. As his Honour noted, Tiahna’s case is, and always has been, that her first language was Auslan, and that she would have been "better taught" in Auslan than in English.
116 Lander J referred to the judgment of Madgwick J in Clarke at first instance. It is fair to say that his Honour purported to apply that decision. The difficulty is that, properly understood, Madgwick J’s reasoning seems to us to provide strong support for Tianha’s case.
117 The issues raised in Clarke were essentially the same as those raised by Tiahna. Did the terms and conditions upon which Jacob was offered enrolment provide that he had to comply with a "requirement or condition" within the meaning of s 6 of the Act? If so, was the requirement or condition one with which a substantially higher proportion of persons without Jacob’s disability complied or were able to comply? Was the requirement or condition reasonable? And finally, was Jacob able to comply with that requirement or condition?
118 Madgwick J held that the first three requirements of s 6 were satisfied, as of course did Lander J in Tiahna’s case.
119 That left only the requirement of inability to comply. Madgwick J found that Jacob could not meaningfully participate in classroom instruction without Auslan interpreting support and would have faced serious disadvantages that his hearing peers would not face. His Honour dealt with this issue where he stated (at [49]):
"The second submission, that Jacob could comply with the model, implicitly and, in my view, correctly concedes that compliance must not be at the cost of being thereby put in any substantial disadvantage in relation to the comparable base group. In my opinion, it is not realistic to say that Jacob could have complied with the model. In purportedly doing so, he would have faced serious disadvantages that his hearing classmates would not. These include: contemporaneous incomprehension of the teacher’s words; substantially impaired ability to grasp the context of, or to appreciate the ambience within which, the teacher’s remarks are made; learning in a written language without the additional richness which, for hearers, spoken and "body" language provides and which, for the deaf, Auslan (and for all I know, other sign languages) can provide, and the likely frustration of knowing, from his past experience in primary school, that there is a better and easier way of understanding the lesson, which is not being used. In substance, Jacob could not meaningfully "participate" in classroom instruction without Auslan interpreting support. He would have "received" confusion and frustration along with some handwritten notes. That is not meaningfully to receive classroom education."
120 We should interpolate, at this stage, that there appears to be no real difference between his Honour’s use of the term "substantial disadvantage" in relation to the comparable base group, and his use of the term "serious disadvantages" in relation to the issue of ability to comply. On the other hand, neither formulation accords with Mr Lenehan’s submission that "non-trivial disadvantage" is all that s 6(c) contemplates. That submission goes too far, and cannot be accepted.
121 In Clarke FC, Tamberlin J delivered a judgment separate from the other members of the Full Court. His Honour noted that the Catholic Education Office characterised Jacob’s case as seeking the conferral of an additional benefit over and above that which other students were offered, and therefore not as a claim of discrimination. His Honour rejected that characterisation, observing that it detracted from the question posed by the language of the Discrimination Act, which was whether Jacob, as a profoundly deaf person, was required to comply with a condition with which non-deaf persons were able to comply.
122 In his Honour’s own words (at [11]):
"... this approach examines the requirement from its impact on a non-disabled person and not from the effect of the requirement on the pupil under a disability. This is the wrong approach. If it is a condition of admission that Auslan assistance will not be provided, then non-deaf students can receive a full education while Jacob, because of his disability, is not able to receive the full benefit of this education. He cannot comply with this requirement if he is to obtain the educational benefits offered by the College."
123 His Honour’s references to a "full education" and "the full benefit" of this education are instructive. They are replicated in the joint judgment of Sackville and Stone JJ where (at [66]), their Honours referred to Madgwick J’s finding (at [49]), set out above. Their Honours saw no error in Madgwick J’s reasoning. They noted that techniques such as sign language, lip-reading and note-taking were "not as effective or efficient" as Auslan in enabling Jacob to communicate. The evidence showed that Jacob’s primary school had coped admirably in providing him with Auslan assistance, and there was no reason, in their Honours’ view, why such assistance should not equally be provided at a secondary level.
124 As previously noted by Mr Lenehan, Lander J did not refer to Clarke FC. If anything, the judgment of the Full Court strengthened Madgwick J’s reasoning that the inability of a deaf child to benefit fully from classroom instruction, by reason of a refusal on the part of the relevant authorities to use Auslan, was capable of meeting the "not able to comply" requirement in s 6(c). The disadvantages that Madgwick J identified in Clarke (at [49]) were essentially the same as those singled out by the experts (whose evidence Lander J accepted) in Tiahna’s case. There is perhaps one qualification. In Clarke, Jacob had the additional likely frustration of knowing, from his past experience in primary school, that there was a better and easier way of understanding a lesson which was not being used. Tiahna, being much younger, might not be as affected by this last consideration.
125 In our view, Lander J’s approach to the "not able to comply" requirement in s 6(c) is difficult to reconcile with the broader reasoning in Clarke FC, with which we agree. A hearing impaired child may well be able to keep up with the rest of the class, or "cope", without Auslan. However, that child may still be seriously disadvantaged if deprived of the opportunity to reach his or her full potential and, perhaps, to excel.
126 Although Madgwick J characterised Jacob as not being able meaningfully to "participate" in classroom instruction without Auslan interpreting support, we do not consider that his Honour intended, by using that expression, to posit meaningful participation as a sine qua non of inability to comply for the purposes of s 6(c). Rather, in context, he was simply setting out the various disadvantages which Jacob had experienced by reason of the absence of Auslan assistance. In the particular circumstances of his case, his Honour characterised these disadvantages as rendering Jacob unable meaningfully to receive classroom education. However, a description of the situation of a particular child, based upon evidence peculiar to that child, does not of itself give rise to a test that is generally applicable to all cases.
127 Clarke FC also demonstrates the fallacy of Mr Bain’s submission that Tiahna’s case requires recognition of an obligation on the respondent’s part to discriminate positively in her favour. Sackville and Stone JJ rejected a similar argument (at [87]-[93]), noting that there is a significant difference in the way that the Discrimination Act operates as compared with other anti-discrimination legislation, including in particular the Sex Discrimination Act 1984 (Cth) and the Racial Discrimination Act 1975 (Cth). Those Acts require that people not be treated differently on the grounds of sex or race. By contrast, the Discrimination Act and other disability discrimination legislation, necessarily focus upon a criterion of admitted difference.
128 In addition, the Discrimination Act is aimed at ensuring equality of treatment. It is not, unlike other anti-discrimination legislation, aimed at ensuring equality of outcome. There is nothing to suggest that the Discrimination Act should be construed so as to preclude any requirement that an educational authority "discriminate positively" in favour of a disabled person: see generally Clarke FC (at [93], per Sackville and Stone JJ).
129 We are not persuaded by Mr Bain’s submissions regarding the effect of the temporal limitation upon Tiahna’s case. It is true that, for at least the early part of the claim period leading up to 30 May 2002, she was too young to have been seriously disadvantaged by not being taught in Auslan. However, by the end of that period she was over four years old. It is hardly necessary to say that this is an impressionable age, and one that is generally regarded as of considerable importance developmentally.
130 The evidence, all of which Lander J accepted, strongly suggested that Tiahna had already been detrimentally affected by having been denied Auslan assistance in the period leading up to 30 May 2002. It was at least implicit, and, arguably, explicit as well, that she would be further disadvantaged in years to come, as a result of having been denied that assistance during the claim period. The early learning years are plainly vital to later educational development. Tiahna’s long term disadvantage, to which the experts alluded, was simply that she might ultimately be denied the opportunity to achieve her full potential. On the facts of Tiahna’s case, the detriment that she sustained would plainly be regarded as "serious".
131 Finally, in order to avoid any misunderstanding, it should be stressed that Tiahna’s case is not a test case. The judgment of this Court does not establish that educational authorities must make provision for Auslan teaching or interpreting for any deaf child who desires it. It does not establish that Auslan is better than signed English as a method of teaching deaf children. It does not determine that an educational authority necessarily acts unreasonably if it declines to provide Auslan assistance.
132 As with all proceedings of this type, Tiahna’s case is highly fact specific. It depends upon the circumstances unique to her case and, importantly, upon the primary facts found by the primary judge, none of which were challenged before us. It also reflects the way in which the case was conducted at trial and on appeal. The observations of Sackville and Stone JJ in Clarke FC at [136] are equally apposite to this case.
133 It is unfortunate that Tiahna’s case, as with others of a similar nature, appears to have engendered a great deal of passion. It is, in the end, a case about a single litigant, which turns upon a narrow question of construction. The resolution of this case is not assisted by the involvement of various interest groups, each with its own agenda, which seek to politicise what is, at bottom, a legal issue.
134 We have concluded that Lander J erred in his construction of the "not able to comply" component of s 6(c). His Honour’s own findings ought to have led him to conclude that Tiahna was relevantly "not able to comply" with the requirement or condition that she be taught in English, without the assistance of Auslan. In our view, it is sufficient to satisfy that component of s 6(c) that a disabled person will suffer serious disadvantage in complying with a requirement or condition of the relevant kind, irrespective of whether that person can "cope" with the requirement or condition. A disabled person’s inability to achieve his or her full potential, in educational terms, can amount to serious disadvantage. In Tiahna’s case, the evidence established that it had done so.
135 It is unnecessary for the purposes of this judgment to rule upon Mr Lenehan’s various construction arguments, or his general submissions regarding international human rights law and standards.
136 It follows that Tiahna is entitled to a declaration that the respondent contravened s 6 of the Discrimination Act. It also means that his Honour’s order that Tiahna pay the respondent’s costs of the proceeding below must be set aside. There should be an order, in lieu thereof, that the respondent pay her costs below, as well as the costs of the appeal.
137 In the events that have happened, that seems to be the only relief to which Tiahna is entitled. Lander J observed (at [825]-[827]) that if, contrary to his overall conclusion, indirect discrimination was made out, Tiahna had suffered no loss, and was entitled to no compensation. That finding has not been challenged in the appeal to this Court. Indeed, it was not sought to be challenged even after that fact was drawn to Mr Burnside’s attention during the course of argument. Accordingly, it is difficult to see how it can now be impugned.
138 In addition, although Tiahna originally sought injunctive relief before Lander J, that claim seems to have been but faintly pressed both before his Honour and on appeal. There seems little likelihood that any such claim could now succeed, given the time that has now passed, and the state of the evidence led below. Nonetheless, we should give the parties an opportunity to be heard regarding the formal disposition of the claim for injunctive relief. That can be done by submissions in writing.
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I certify that the preceding one hundred and thirty-eight (138) numbered
paragraphs are a true copy of the Reasons for Judgment herein
of the Honourable
Court.
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Associate:
Dated: 28 July 2006
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Counsel for the Appellant:
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Mr J W K Burnside QC with Mr J D Gray
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Solicitor for the Appellant:
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Caxton Legal Centre
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Counsel for the Respondent:
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Mr R G Bain QC with Mr C J Murdoch
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Solicitor for the Respondent:
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Crown Solicitor
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Counsel for the Intervener
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Mr C L Lenehan
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Solicitor for the Intervener
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Human Rights and Equal Opportunity Commission
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Date of Hearing:
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24 February 2006
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Date of Judgment:
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28 July 2006
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URL: http://www.austlii.edu.au/au/cases/cth/FCAFC/2006/100.html