Editors --- "Sinnappan And Foley V. State Of Victoria (Northland Secondary College case) - Case Summary" [1996] AUIndigLawRpr 55; (1996) 1(2) Australian Indigenous Law Reporter 245

Sinnappan And Foley V State Of Victoria

(Northland Secondary College case)

On 20 November 1992 the newly elected Victorian Government announced the closure of over 50 state schools, including Northland Secondary College. A fo rtnight later, Muthama Sinnappan and Bruce Foley, two Aboriginal students of the College, lodged complaints with the Commissioner for Equal Opportunity, in which they claimed that the proposed closure of the College would discriminate against them on the ground of their race under the Equal Opportunity Act 1984 (Vic.). The students sought interim orders from the Equal Opportunity Board to restrain the State from implementing its decision to close the College. The Board granted those orders on the day the College was due to close, but when the matter came back before the Board the following January it emerged that the State had done everything necessary to close the school before the interim orders were made. An application to the Board for mandat ory interim orders to compel the State to reopen the College for the 1993 school year was unsuccessful, as was a last minute appeal by the students to the Supreme Court. 1 However, the Board made an interim order preserving the physical structure and assets of the College pending the final hearing and determination of the students' complaint. The Board commenced a hearing of the complaint in September 1993, and in December that year published its decision. It found that the State's closure of the College had the effect of indirectly discriminating against the complainants and other Aboriginal students at the College on the ground of their race, and ord ered the State to reopen the College for the 1994 school year.

Equal Opportunity Board (M. Rizkalla, President; D. Rechtman and J. Murphy, Members)

7 December 1993, Melbourne

The Board set out briefly the history of the matter, and continued:

In the complaint in this matter, it is alleged that the closure of the school represents discrimination against each of the Complainants and the other Koori students who attended this school, on the basis of their race. The contention by the Complainants is that the act of closing the school has effectively removed their access to the educational service provided by the Respondent in the State of Victoria because they could only effectively access that education service through the use of the Northland Secondary School. It is submitted by the Complainants that because the Northland Secondary College was a school which had a programme and an approach to education that facilitated access to education by Koori students, such as the Complainants and the other Koori students who attended there, that it was one part of an educational service offered by the Respondent and it was the only part of the educational service offered by the Respondent in the State of Victoria that was able to be accessed by a substantial percentage of Koori students because of the particular needs of their cultural background. It is submitted that on the evidence the Board ought to conclude that Koori students such as the Complainants require a different method of education if they are to utilise the State education service appropriately and that Northland was the only school in the system in Victoria that provided a substantial number of Koori students with the facility to use effectively the educational services provided by the Respondent. The closure of the school is thus relied upon by the Complainants as a refusal to provide a service by the Respondent or alternatively a change in the terms on which the education service is provided by the Respondent. To this end Section 29 of the Act is relied upon together with Section 17(1) and Section 17(5).

It is further asserted by the Complainants that section 28 applies to the complaint, that a closure of a school does come within the provision of section 28, and as the Respondent is an educational authority within the terms of Section 28, there has also been a breach of Section 28.

The Board then dealt with a number of preliminary matters and went on to give its findings in relation to the Complainants' submission that section 28 of the Act [Discrimination by Educational Authority] applied to the closure of a school by the State.

Initial Findings

...

(a) We find that the rationale applied by the Board in the Richmond case that the State is an educational authority pursuant to Section 28 applies in this case and we adopt it.

(b) We find that Section 28 does not cover a closure and we adopt the reasoning set out in the Richmond case in relation to this proposition.

(c) We find that Section 28 although it does deal with issues relating to education does not establish a code (as was found in the Richmond case) and on that basis it does not stop the Board from determining this complaint on the basis of other sections within the legislation in particular Section 29.

(d) We find that "education" is a service within the definition of "service" in the Act and thus the provision of public education in the State of Victoria through the State School System and pursuant to the Education Act 1958 is a service that comes within the terms of Section 29, consistent with the findings in the Richmond case.

(e) We hold, as we did in the Richmond case that section 29(1)(a) is not applicable to the closure of the school because the fact is that there are other schools in the State of Victoria who do provide the service of a public education, and the issue in this complaint is a question of the terms upon which the service is provided to the Complainants. On this basis then it is our view that the appropriate section under which this complaint ought be determined is Section 29(1)(b). In determining whether the Respondent has discriminated against the Complainants in the terms upon which it provided the service of public education to them and to define discrimination we must consider 17(1) and 17(5).

The Evidence

... We propose to summarise our conclusions on the evidence which have ultimately led to the determinations of the issues in this complaint.

1. Northlands the School

Northlands, the school involved in this application is a school which on the evidence must be said to be unique within the Victorian education system. We find that Northlands was a school that prior to November 1992 was operated by the Respondent and which offered provision of education services to students in the State of Victoria. We find that the different approach at Northlands was substantially a result of the work done by Mr Bill Maxwell who became Principal of the school in 1976. In the following years of his Principalship Mr Maxwell began to look at ways of changing the school culture to adopt a whole school approach to education and its delivery. One of his initial aims was to surround himself in the school with staff who were empathetic to his approach and philosophy of education and to this end approximately forty staff changed in a period from 1976 to 1983 to reach a stage where the vast majority of staff at Northlands were committed to what has been described as "the whole school approach". The approach that was put into operation in Northlands operated on the basis of decentralised control of the school and changed the way in which students were treated there. It was the aim of this approach, an aim which to a great extent was realised, to treat each of the students there as individuals and to attempt to involve them in the process of receiving an education and in determining the way in which that education could best be relevant to them. It was a method of teaching which involved parents, students and teachers in the whole of the school's activities and processes. At first instance the approach designed by Mr Maxwell and carried out for some years by the teachers at Northlands was not designed for Aboriginal students and their needs alone, but it did evolve that the approach ultimately began to attract Aboriginal students and their communities. It is apparent that the whole school approach of education where the teachers operated on a different authority and discipline system to many main stream education institutions was one which lent itself to the Aboriginal culture and found acceptance in that culture. It is further clear that the approach was one which appealed to students who may have been rejected from other schools as difficult or lost causes. As a result, from 1976 to 1992, the student population at Northlands began to evolve to include between 55 -- 67 Aboriginal students some of whom came from other cities and states within Australia as well as students from almost every other ethnic background who could be regarded as well as "rejects" from other schools or disadvantaged in both the socioeconomic sense and in an education sense.

In 1986, the first two Aboriginal educators were appointed to Northland, and with their assistance the contact with the Aboriginal community increased to the point where in 1987 there were two Koori parents on the school council. These Koori educators and parents were encouraged to become part of the process of running the whole school and not just to deal with Aboriginal programs and Aboriginal culture. It was perhaps this element which found the school culture becoming more and more inclusive of the Aboriginal culture and ultimately finding the Aboriginal culture becoming a large element in the whole school approach, to the extent where non Aboriginal students were involved in Aboriginal culture and were assisted by the Aboriginal educators just as Koori students were involved in non Aboriginal programs. By 1987, there had been established a "Koori room" which was a place the Koori educators and students were able to call their own but which also was a place available and used by other students.

The evidence makes clear that the teachers who were at Northland in 1992 were to a large extent teachers committed to a different approach to education than the approach adopted in the majority of schools throughout the State. Further, the present Principal Ms Galati-Brown had worked at the school since 1979 to a point where she had ultimately assumed the mantle of Principalship when Mr Maxwell retired and thus the philosophy that had shaped the culture of the school continued. There is also no doubt that the evidence discloses that the teachers at this school were dedicated to the dissemination of a relevant education to all their students, including the Aboriginal students, and that to a large extent this involved a great deal of personal dedication and commitment. The very nature of this student population meant that the staff were continually confronted with student problems that were not strictly education problems but which were dealt with as part of the Whole School Approach to students. As well as the Aboriginal population which by 1992 was in the range of 67 -- 55 [sic], the majority of the other population of the school could be described as disadvantaged and indeed the school received Commonwealth funding having been classified on their guidelines as a disadvantaged school.

At Northland we find they reached a point where the Aboriginal community felt they were able to involve themselves in the process of the school and its curricula and to actively contribute to that process and thus to feel some "ownership" of it. The concept of ownership is again one which has been stressed by witnesses throughout this hearing as significant for the success of Aboriginal students in education. It is accepted by this Board that it is this sense of ownership of Northlands that is one of the factors relied upon as placing this school apart in its access to education for Aboriginal students who attended there and to a large extent it is this sense of ownership and the whole school approach and process which is relied upon as establishing that the Aboriginal students who attended there did so because it was their best access to the education system in Victoria. It is also established on the evidence to the requisite standard that Northlands did not offer "an Aboriginal program" as such in a form that could be transferred to another school. What it did offer was the culture and philosophy of all the teachers and persons involved in Northland School which over the years had become one that was culturally sympathetic to and accepted by Aboriginal students and the Aboriginal community. As such it was not a "program" as may have been understood by the authorities as one which could be easily transported and placed with the relevant teachers in another school. To the extent that the Minister was advised that the Koori program was a program which could be moved to another school we find that he was incorrectly advised. On the evidence the nature of the provision for the Koori students was an integral part of the school and could not be "moved" as such but would need to be re-created in a new school which would if attainable, take between five and 10 years.

In accepting as we do on the evidence that Northland did provide a different culture and environment which we call the Whole School Approach, we also find that the Respondent was responsible for the provision of the Whole School Approach as one of the facets of its service to the students of Victoria pre November 1992 and more particularly to the students at Northland.

The Board went on to elaborate upon the reasons for its finding. It considered the Minister's decision to close the Northland School and the effect that decision would have upon the ability of Aboriginal students to access education.

2. The Closure of Northlands

It is common ground in this complaint that the Quality Provision Task Force was set up by the Respondent with the view to recommending a number of closures to the Minister to ensure both a greater efficiency in the provision of the service of education in this State and to achieve a greater economy in the financial running of the schools in this State. The Quality Provision Task Force was chaired by Mr Swan who gave evidence in this hearing in regard to the matters the members had before them at the time they made their recommendations of closure to the Minister. The uncontested evidence is that the Task Force recommended to the Minister that Northland Secondary College close and in accordance with the transcript Mr Swan delineates the reasons for the recommendation and the criteria utilised. In summary, we are satisfied that the Task Force operated on the basis that the Northland School met the following criteria and on this basis ought to be recommended for closure:-

(a) That it had very low enrolments in 1992 and that the projected enrolment in 1993 was also low. That

the capacity of the school was for some 1,175 students and under half of that was to be utilised on projection in 1993.

(b) That the average recurrent cost per student of the College was too high when compared with the average cost per student at schools within the State of Victoria.

(c) hat the existing buildings and facilities of the School were in extremely poor condition and required expenditure of approximately $1. 4 mil to bring them into a fit state of repair because cyclic maintenance had not been carried out for many years.

(d) That within a radius from 1 to 2. 6 km of the College there were a number of schools available to cater for the students, including Banksia College, Preston Secondary College, Reservoir Secondary College and Thornbury Darebin Secondary College. Between them these schools had excess capacity of 1983 places to accommodate the approximate 500 students who were expected to attend Northlands in 1993.

(e) That there were pressing financial reasons in the State economy for rationalising the school system in Victoria.

It is also clear on the evidence, and uncontested, that the Minister upon having the recommendation for Northland to close, sought an assurance from the Department that the Koori education program at that school could be transferred to other schools prior to deciding to close the school. It is also the uncontradicted evidence of Mr Swan, that such an assurance was given to the Minister by Mr Spring, who apparently obtained information from the regional directorate that the Koori program could be transferred to other schools. The evidence discloses that the Minister, upon this recommendation, then directed that the Northland School close and this was formalised in a decision made on the 8th of December 1992 by Government Order-in-Council. In effect the school had been notified on the 20th November 1992 that the school would close. The Board heard evidence from no other relevant person in the decision making process apart from Mr Swan who gave evidence in relation to the Task Force, and of discussions with the Minister in relation to the closure of the school. Following upon the decision to close Northland the Respondent attempted to make arrangements to move "the Koori programs" available at Northlands in 1992, to Thornbury Darebin and directed the Principal of Northlands Ms Galati-Brown to attend at Thornbury Darebin with a view to establishing the Koori programs at that school. The Respondent identified the Koori program to be:-

* The Koori homework classes

* The facility and assistance provided by the two Aboriginal educators at Northland

* The Koori cultural classes.

In fact we find that the above did not represent the whole of the elements of the school which made it accessible to the Koori students.

3. The Aboriginal Culture and its influence on Aboriginal Student needs

In regard to the culture differences between Aboriginal students and non Aboriginal students and what that means as impacting upon the ability to access education in this State, we heard a great deal of complex and thoughtful evidence from both experts and people who had personal experience of the system of education. Fortunately, it is not our role to ultimately determine the "answer" to what is the best system of education for effective access to be offered to Aboriginal students. It would appear on the evidence this is a question upon which even the experts do not agree. However, there is one area in which all experts and those with personal experience as Aboriginal students within the education system do agree, and that is that as a general rule the education system does not reflect or take into account the cultural complexities and needs of Aboriginal students.

...

All the expert evidence which was called by the Complainant detailed, in different ways, the belief of the witness that Aboriginal culture and tradition meant that Aboriginal students had, or required, different means of accessing public education than did non Aboriginal students.

The expert evidence also established that all schools developed a culture which is the way people at that school are, the way people are expected to behave generally, and towards each other and the kind of networks that are established. It was established in our view that the transferring of such a culture to another school would take a long time to re-establish and may well ultimately not be successful. ...

...

Each of the expert witnesses were asked to look at extracts from the Royal Commission into Aboriginal Deaths in Custody (and these extracts have been tendered in this hearing) and each of them in turn agreed with the sentiments and conclusions expressed in those extracts.

The situation Aboriginal students are presented with in a predominantly Anglo-Saxon oriented education system is perhaps best summarised by Commissioner Elliott Johnston, QC in volume 2 of the Royal Commission into Aboriginal Deaths in Custody, paragraph 16.5. 2 where he makes the following comments:-

Schooling reflects and transmits the values and styles of our society, and it has to be acknowledged that these are very complex and far from uniform. More importantly, it is historically the case that schooling has failed to reflect Aboriginal values and learning styles. As a consequence, Aboriginal children enter into an institution:

* of which they have limited or no experience and of which their parents may have limited or no experience -- and if any experience, usually a very negative one;

* where their own system of values and style are not reflected;

* where the language spoken is in many cases not their everyday language; and

* which often does not take into account their home experience -- and this experience is one which has prepared them less than is the case for most non Aboriginal children.

Then at paragraph 16.5. 3 he states:-

Numerous research and government reports have noted some of the specific cultural differences which attend Aboriginal learning processes. They have suggested that these differences reside in the links of culture and cognitive style, the relation between culture and intellectual performance, the forms of culturally preferred knowledge common [sic], cross cultural communication processes, and culturally relevant teaching and learning strategies.

We adopt these comments as reflecting the evidence we have heard in these proceedings. We are in no doubt (and indeed there was no evidence called to the contrary) that the expert evidence and the material submitted on behalf of the Complainants in regard to the issue of cultural differences in Aboriginal students entirely supports a finding that Aboriginal students have an added cultural disadvantage in relation to their ability to access the public education service in Victoria and other states of Australia which is over and above cultural disadvantage which may be suffered by other groups within the community. As a broad principle it is beyond question in our view and is supported by the evidence in this matter that Aboriginal students require a delivery of education services in a different way than do non Aboriginal students to have effective access to education. We find that the present public education service is based substantially upon the cultural needs of a Western society and not as a whole designed to incorporate the cultural needs of the Aboriginal community. As we have found earlier the evidence about Northland School was that it was one of the exceptions to the general principle, in that it came to incorporate a Whole School Approach which was sympathetic to the cultural needs of the Aboriginal students and the community who attended that school, which ultimately had the effect of attracting more Aboriginal students to attend there and a greater participation of the Aboriginal community, to the point where in 1992 it is clear that Aboriginal culture and philosophy was an integral part of the Whole School Approach offered to both Aboriginal and non Aboriginal students at that school.

4. The Aboriginal Students at Northlands including the two Complainants

The evidence in this complaint has established that both Complainants in this matter are Aboriginal students who attended Northland School in 1992. The Complainant Muthama Sinnappan was a year 11 student in 1992 and is presently undertaking year 12. The Complainant Bruce Foley is a student in year 9 and evidence in relation to his schooling was given through his father Gary Foley who represented him in this complaint and through the school records which were tendered in this complaint. Bruce Foley did not give evidence himself before the Board. What we have had before us however are the records of the school which reveal that Bruce Foley has had a difficult educational life at Northland School. We heard from his father that previous to Northland Bruce Foley had attended many other State Schools and had found difficulties at each of them to the point where he has had to leave through suspension or expulsion or has chosen to leave because of difficulties arising at those schools. His father's evidence, which we accept, establishes that despite the fact that Bruce Foley is having difficulties at Northland, the mere fact that he attended regularly, and still attends, is a major change in his attitude to education. In one way Bruce Foley's educational history confirms what the expert evidence had to say regarding the problems Aboriginal students have in accessing schools and education when they do not take into account Aboriginal culture.

As for Muthama Sinnappan, she gave evidence before the Board of how she felt she successfully achieved education at Northlands and her evidence is borne out by her results whilst she attended there and from Ms Galati-Brown's evidence. Since Northland has not operated as a school, Muthama has attended several other schools (Merrilands Secondary College, Preston Secondary College, Thornbury/Darebin College) but has on her evidence found them all lacking for her needs. In particular she gave evidence in relation to some racist incidents that have occurred between herself and students and teachers at other schools. Although when she attended other schools in 1993 Muthama received assistance from the teachers who were in charge of those schools and particularly at Thornbury Darebin she still found that she could not feel comfortable or able to take part in the classes as when she attended Northland.

The complaint has always been expressed to be pursuant to Section 44(4). In our view, it is appropriate that this complaint be brought in this manner given that the questions that we are asked to determine are questions which are asserted to be common to all the Aboriginal students at the school. The evidence regarding the cultural and racial issues that face all Aboriginal students who wish to access the education service must also apply to the other Koori students at Northland as to the Complainants. ...

5. Conclusions on Aboriginal access to public education service

On the above findings we reached the following conclusions:-

1) That the expert evidence can be summarised as establishing that the Anglo-Saxon traditional system of public education which takes little or no account of Aboriginal traditions and culture is one which Aboriginal students enter with significant disadvantage by comparison to the way non Aboriginal students enter the same system, and results in a substantial proportion of Aboriginal students not receiving an effective education. Those Aboriginals that are able to utilise the system must do so at the price of their Aboriginality.

2) Nicholas Hayne's evidence is consistent with the above conclusions of the experts and represents a case

in point.

3) Muthama Sinnappan's evidence, particularly of her 1993 schooling is also consistent and pertinent to the expert evidence. In our view it establishes the difficulties she met in attending other schools, which resulted in her need to change schools in her attempts to find one where she could feel comfortable in accessing the public education service, as the evidence establishes she did at Northland.

4) Gary Foley's evidence regarding Bruce Foley's education before Northland and at Northland is fully consistent with the expert evidence and their conclusions regarding Aboriginal disadvantage in accessing public education.

5) Galati-Brown's evidence regarding the thirty Aboriginal students who had attended Northland in 1992 is also consistent with the expert's conclusions. Her evidence establishes that fifteen Aboriginal students have not been prepared to even attempt to access the public education service without Northlands and thus have remained at Northland in the 1993 school year. The other fifteen Aboriginal students were attempting access to the public education service with varying degrees of satisfaction (see exhibit N and the analysis of it).

6) Edwin Crouch's evidence, particularly in his affidavit, summarises Thornbury/Darebin Secondary School's approach to Aboriginal students a school which had previously had Aboriginal students and which would be expected to be more attuned to their needs. He also gave some evidence in relation to particular Aboriginal students who have attended at this school from Northlands and asserts on his general enquiries he is able to say they are doing well. Further, he states that with Galati-Brown's assistance at this school "if the Northland Koori wish to introduce a Koori content in the general curriculum, we would welcome it". This statement concedes that as Galati-Brown stated in her evidence, there is no real inclusion of the Koori culture at this school at the present time. Further, his statement "in my view, the Koori children are being provided with a very good and stable education at Thornbury/Darebin. The Koori students are receiving an equal education to other students and are getting educational benefits to the same extent as other children" illustrates that the emphasis of his assessment of access to education is based upon equality rather than recognition of and provision for difference. His evidence could be summarised as asserting that as long as the Koori students at the school are given access to the same curriculae and lessons as other students then the school has performed the requisite educational service. Although he goes on to say that the school would be open to including Koori culture it is apparent that to this point, apart from efforts made by Ms Galati-Brown since she has been there, little has been done in this area. His evidence is based upon being the associate principal at this school since January 1993 and in making enquiries into the Koori students who attend this school for the purposes of this hearing. It would appear on the evidence he would not have direct teaching experience with the Koori students at the school. He summarises his view by stating "the Koori children are not suffering in any way at Thornbury/Darebin." In considering his evidence, which could be said to be contrary to the proposition concluded by the experts in that it suggests there is no cultural disadvantage affecting the students who have attended Thornbury/Darebin from Northlands, and indeed the other Koori students at that school, we find the weight of the evidence does not support his conclusion. Further, his evidence was based on very broad and general enquiries from other teachers at the school and perusal of the school roll, which does not allow for any significant assessment of the Koori students' ability to effectively access the public education service offered by the Respondent.

In conclusion we are satisfied that the weight of the evidence supports the finding that Aboriginal students do have an added disadvantage in accessing the public education service because of their race.

The Board then went on to consider whether such "disadvantage" amounted to discrimination within

s. 29(1)(b) and s. 17(1) or s. 17(5) of the Act.

The Complaint and the Legislation

The Complainants rely upon Section 29(1)(b) and Sections 17(1) or 17(5) in establishing their complaint. As indicated earlier we do not accept that it is open to the Complainants to bring their complaint pursuant to Section 28 of the legislation. Section 29 reads as follows:-

29(1) It is unlawful for a person who provides goods or services (whether or not for payment) to discriminate against another person on the ground of status or by reason of the private life of the other person -

(b) in the terms on which the person supplies the goods or performs the services.

To determine this complaint pursuant to this section it is necessary to determine initially:-

1) what is the service that is provided by the Respondent

2) what are the terms upon which it is provided

3) are the terms upon which it is now provided "discriminatory" within the terms of Section 17(1) or Section 17(5).

The Service and its Terms

The service in this case can be defined as that of the provision of public education system in the State of Victoria. When it comes to determining the provision of service and its terms pursuant to Section 29 we accept the Respondent's contention that the relevant service to consider is the service presently offered by the Respondent. On this basis, on the evidence in this complaint the relevant service is the public education system without Northland. It is not to the point to consider Northland School itself as part of the service in this consideration as the terms upon which service is now offered to the complaints [sic] is that if they wish to use the public education service in the State of Victoria that is provided by the Respondent, they do so without Northland School and thus without the Whole School Approach which we found existed at that school. Consequently, it is not to the point when considering the terms upon which the service is offered to the Complainants at present as a result of the decision to close Northland School, to consider the benefits of Northland when it was part of the public education system or service offered by the Respondent at this point. This is a matter that would only become relevant if we moved to the final question in this complaint as to whether or not the opening of Northland School would on the evidence redress any discrimination. In other words, if we were to find ultimately that the provision of the public education service by the Respondent without Northland was in its effect discriminatory then it would be one of the matters we must consider as to whether a direction to open Northland School would be a direction which would redress that discrimination. The major question for determination in this matter is whether or not in the provision of the public system of education the Respondent has "discriminated" in the terms of Section 17(1) or 17(5) by offering that service without Northland School.

Section 17(1)

The Complainants assert their complaint under both Section 17(1) and Section 17(5). We will first deal with the assertion under Section 17(1). For the complaint to succeed in relation to Section 17(1) the Complainants must establish that they have been treated less favourably by the closure of Northland than students of a different race, and that their treatment is solely or substantially based upon their race i.e. the fact that they are Aboriginal. It was submitted by the Complainant that it is not necessary for the Board to determine that there has been intentional discrimination against the Complainants based on race for them to utilise Section 17(1) and that Section 17(1) extended to indirect discrimination as was discussed in the joint decision of Gaudron J and Mason CJ in Waters Case 173 CLR at 349 [Waters v. Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349].

...

...[I]t is asserted by the Complainants that Section 17(1) is applicable if the evidence discloses that the decision to close Northland, although not in itself motivated by the fact that there were Aboriginal students attending the school, had the effect of adversely affecting those students who attended the school because their special needs were ignored whilst others' special needs were considered, then it can be found to be discriminatory because it treated them less favourably than the non Aboriginal students or other students in the education system.

It is our view that whether or not Section 17(1) could be said in some circumstances to incorporate indirect discrimination, it is clear from Waters Case that it does not apply where a requirement or condition is relied upon to allege discriminatory treatment. In this case, Section 17(5) must be taken to have exclusive application. Consequently, it is our view, that the appropriate section in this case for determination is Section 17(5), as the Complainants rely upon a decision made by the Respondent which on its face is neutral, but which is alleged to have a discriminatory impact on the Complainants and the other Aboriginal students at Northland by the requirement or condition it imposes upon them.

The evidence does not support a finding that there was consideration given to the Aboriginality of the students attending Northland college by the Minister in a way which played a part in the decision to close the school. On the contrary, the only evidence before the Board, which is the correspondence from the Department and the Minister's Office, and the evidence of Mr Swan, would suggest that if anything, the question of the Aboriginal attendance at Northland was a consideration taken into account prior to the decision to close the school with a view to ensure that the Koori programs which existed at Northland could be transferred to other schools. It was apparently Mr Spring and Mr Swan who assured the Minister that this could be done, and on this basis the decision for closure proceeded. On no reading of the evidence could it be found that the Minister took into account the fact that the school had a number of Aboriginal students as a reason to effect the closure of the school. On this basis, we find the complaint is not capable being established under Section 17(1).

Section 17(5)

Based on our finding above that Section 17(1) which relates to direct discrimination has no application in this complaint we must then move to consider whether the complaint comes within the terms of Section 17(5) in that it is a decision which, though on its face is neutral, has a disparate impact upon the Complainants because of their race. The Complainants in relation to this part of their complaint formulated it in this way in their further and better particulars:-

The Respondent has discriminated against the Complainants and the other Aboriginal students of NSC in the terms upon which it performed the services of the public education system, by imposing a requirement or condition on them, namely, in order to access or obtain the benefits of the public education system provided by the Respondent, they will have to attend a school other than NSC or, they may only access or obtain the benefits of the public education system provided by the Respondent elsewhere than at NSC. These are requirements or conditions with which substantially higher proportion of non Aboriginal students at NSC and or in the public education system generally, can comply, and the Complainants and the other Aboriginal students of the college cannot comply. The requirements or conditions are not reasonable, thereby there has been indirect discrimination.

For the purposes of analysing the complaint pursuant to this sub-section it is necessary to:-

1) To determine what is the requirement or condition which is imposed upon the Complainants by the Respondent;

2) What are the relevant groups for the purpose of sub-section (a) and (b); and

3) To determine whether a substantially higher proportion of the first group can comply with the requirement or condition imposed upon them by the Respondent and the Complainants do not or cannot comply with the requirement or condition;

4) Finally, to determine whether the requirement or condition in all the circumstances is not reasonable.

Requirement or Condition

The facts in this complaint establish that the Respondent has imposed upon the Complainants a requirement or condition that if they wish to access the public education service offered by the Respondent they must do so without Northland Secondary School, and thus without the Whole School Approach that we find Northland Secondary School had offered. This requirement or condition has resulted from the decision by the Minister on behalf of the Respondent to close Northland School at the end of 1992. (It perhaps should be noted that the requirement or condition to attend some form of schooling in the State of Victoria is a legal requirement that all children under the age of sixteen years must fulfil and that unless they attend at a school other than a public school provided by the State they must attend one of the public state schools provided by the Respondent in order to fulfil the legal requirement to attend a school until they are sixteen years of age).

In determining then, who are the two groups relevant to consider as the comparative groups for this sub-section we find on the evidence that the first group for comparison is that of all the non Koori students who attend the public education service offered by the Respondent in the State of Victoria. The next group for the comparison is that of the two individual Complainants and the class or group of Koori students who attended Northland in 1992. (In both comparative groups those students who were in 1992 in year 12 do not form part of the comparative group given that they are expected to leave the education system of secondary education). Having determined these two matters it is then necessary to look at whether a substantially higher proportion of non Koori students than the Koori students who attended Northland in 1992 are able to comply with the requirement or condition that they utilise the public education service without Northland School and that the Complainants do not or cannot utilise the public education service without Northland and that a substantially higher proportion of non Aboriginal students do comply. It is the answer to this question which will determine whether or not the Complainants are able to establish on the balance of probabilities that they fulfil the requirements of Section 17(5)(a)(b).

Can comply/Do not or cannot comply

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...[T]he question for us to determine in considering Section 17(5)(a) and (b) is whether the Kooris or Aboriginal students can be said to be disadvantaged in a way that a substantial proportion of non Aboriginal students are not, by the closure of Northland school in relation to the provision of public education in the State of Victoria and that the disadvantage means they "cannot comply with the requirement or condition imposed". On the evidence, we are in no doubt that the loss of Northland School will mean that all the students who attended that school and found the Whole School Approach one that allowed them to feel comfortable and best facilitated their likelihood of gaining benefits from the public education system, will have difficulties in re-establishing themselves at other schools. This disadvantage is one that is not particular to the Aboriginal students at the school but will affect all the students who have been fortunate enough to come into the sphere of the dedicated teachers who ran Northland School in 1992. However, in regard to the complaint before this Board, we must determine whether or not it has been established on the material before us that the closure has resulted in a disparate impact upon the Aboriginal students because of their race and their culture as compared to the first group we have identified, irrespective of the fact that we are of the view that both Kooris and non Kooris who attended the school will feel the impact of the closure on their education. It is clear that to answer this question we must take into account the finding we made in regard to the evidence called in relation to the cultural impact upon Aboriginal students and the way in which it affects their ability to utilise the public education service.

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Consequently, when looking at the question of whether the closure of Northland School has an impact upon the Aboriginal students who attended there that is different to the impact on all non Aboriginal students these factors must be taken into account. Further, if one reaches the point in finding that it does indeed have a disparate impact on Aboriginal students we must then look at the question of whether the impact is such that it fulfils the requirement of Section 17(5)(a)(b) i.e. in practical and real terms the closure means that Aboriginal students cannot comply with the requirement or condition of the Respondent to attend other schools to receive their public education.

We have earlier in these reasons found that as a matter of fact Aboriginal students do come to the public education service with an added disadvantage with their cultural difficulties in accessing that service because it is not designed with an Aboriginal society or its needs in mind. Further, we have found that the expert evidence, and the particular evidence in this case, supports the conclusion that all Aboriginal students (irrespective of the fact that they are clearly likely to have individual difficulties and needs) share the cultural traditions of the Aboriginal race which traditions are at odds in major areas with accessing the system of public education when it is offered without an approach such as the Northland School Approach. It follows from this finding then that non Aboriginal students who are offered the public system of education in the State of Victoria do not have the same disadvantage. In other words, the mere fact that non Aboriginal students in Victoria do not and are not part of the Aboriginal race must mean that they do not have superimposed upon their access to the education service the cultural difficulties that we find that Aboriginal students suffer, which spring from the beliefs and traditions and the particular history of their race and which were outlined in the detailed evidence in this complaint. It therefore follows that a substantially higher proportion of non Aboriginals do or can access the public education system without the service provided by Northlands than do or can the Aboriginal students.

The evidence supports a finding that it was only Northland School which managed to diffuse the cultural disadvantages of access to the traditional non Aboriginal system of education to the point were it could be said that the Aboriginal students were able to access the delivery of the education service at that school in the same manner or similar manner as the non Aboriginal students. It follows then that Aboriginal students inherently will have greater difficulty in attending another school in the public education system which has not developed the Whole School Approach and culture that was in existence at Northland School, and it is the service presently offered to them by the Respondent. As we have already noted in our finding above the extracts from the Aboriginal Deaths in Custody Report succinctly encapsulate the effect that schools in the public system of education have when they do not take into account Aboriginal tradition and needs. What this then leads us to determine is whether or not the finding, that the Aboriginal students will be disadvantaged and feel a different impact by offer of a public system of education without Northland, amounts to such a significant difference to the way in which they would have to access education at other schools that it could be said that it effectively means that they do not, or cannot comply with the requirement to attend other schools in the same way as a substantial proportion of non Aboriginal students can.

On one view, it could be said that the very fact that there are other schools within ready access to the Aboriginal students which provide the requisite curricula militates against the proposition that they cannot comply with attending schools other than Northlands. If one were to approach the question literally then this conclusion may well be reached. However, we are satisfied that in determining this issue it is not just a question of impossibility that must be taken into account but a question of whether the closure creates such a palpable and significant difference in the way in which the Aboriginal students would have to access education at other schools that it effectively means they do not or cannot comply in the same way as non Aboriginal students do. This approach is one which is consistent with authorities which have dealt with this proposition. A similar approach was taken by this Board in Byham v Preston City Council (1991) EOC 92-360. The approach in Byham's case is consistent with that taken by the House of Lords in the decision of Mandla and another v Dowell Lee and another [1982] UKHL 7; (1983) 1 All ER 1062 when dealing with a similar decision. In that case, the complaint related to a Sikh who was refused admittance to a school unless he cut his hair and did not wear his turban. A complaint was brought on the basis that he was being discriminated against on the grounds of his race by this decision. In finding for the Complainant, Lord Fraser had this to say in relation to the question of compliance at 1069:

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 1976 Act, 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 1976 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. On the other hand, if ethnic means inherited or unalterable, as the Court of Appeal thought it did, then `can' ought logically to be read literally. The word `can' is used with many shades of meaning. In the context of s. 1(1)(b)(i) of the 1976 Act 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'. The latter meaning was attributed to the word by the Employment Appeal Tribunal in Price v Civil Service Commission [1977] UKEAT 1_77_1507; (1978) 1 All ER 1228, (1977) 1 WLR 1417, on a construction of the parallel provision in the Sex Discrimination Act 1975. I agree with their construction of the word in that context. Accordingly I am of opinion that the `no turban' rule was not one with which the second appellant could, in the relevant sense, comply.

This reasoning is entirely consistent with the contention of the Complainants in this case that to satisfy the provision that they "cannot comply" for Section 17(5)(b) does not mean they literally cannot attend another school but rather must be taken to mean cannot comply in a similar way to other students with a different status or on similar or equal footing to other students, otherwise the mere fact that another school exists in which they could enrol would debar them from relying upon this provision of the Act. The literal construction would in effect nullify the object of this sub-section and avoid the purpose and objects of the Act i.e. "to promote Equality of Opportunity between persons of different status".

If we are to take the approach in Byham's case and which has been applied in the Mandla case, which we are satisfied is consistent with the philosophy and objects of the Act, then we need to turn our minds not only to whether the Aboriginal students are able to physically attend other schools but whether in so attending their access to the service of public education offered by the Respondent is so different in kind to the access offered to the non Aboriginal students that it could be said that they fulfil the requirements of Section 17(5)(b) in that they cannot comply with the requirement to attend these schools and effectively receive the public education service. The approach in the Mandla case if applied in this complaint would lead us to conclude that to find the Complainants "can comply" we must determine that the requirement to attend schools other than Northland to receive their public education service from the Respondent is not a requirement or condition which would require them to subjugate or put to one side their own distinctive customs and culture to access the public education service effectively. In our view, it is not appropriate to take the view that the effect of the requirement or condition must be such as to nullify entirely the complainants' access to public education before it could be found that they meet the requirements of this subsection.

Considering the whole of the evidence in this matter and based on the foregoing we have come to the conclusion that the offer of the service of public education without Northland does impose a requirement or condition upon the Aboriginal students with which they cannot comply in the same way as a substantially higher proportion of the non Aboriginal students can. On this basis we are satisfied that the Complainants have met the requirements of the Section 17(5)(a) and (b) and we must now go on to consider the question of whether or not the imposition of the requirement or condition by the Respondent is not reasonable in all the circumstances.

"Not Reasonable"

In determining this matter it is the Board's view that we must look at all the circumstances relevant to both the Complainants and the Respondent. The Complainants' circumstances which are relevant to this consideration and are relied upon by them is the whole of the evidence in relation to the loss that they would suffer as Aboriginal students in being required to utilise a public system of education without Northland. As we have already indicated above we are satisfied that such a requirement or condition would have the effect of ultimately limiting or restricting their access to an effective education in a way which it would not do to non Aboriginal students. It is another factor that must be taken into account that the imposition of the requirement or condition by the decision to close Northland School was one which was arrived at by the Respondent without any consultation with parents, teachers or students at Northland. On the evidence it is clear that the Task Force and the Department did not approach anyone at the school in regard to the particular considerations which would relate to Northland School or indeed to the effect the closure would have upon the Aboriginal students at that school. Despite the fact that there was brief evidence that the Minister was concerned in relation to the "Koori program" at the school, little information has been provided as to how any assurances were given to him in this regard. Certainly we are able to conclude it was not based upon information from those at the school who might have been thought to be in the best position to advise.

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It could not be said that the issues raised by the Respondent in regard to the considerations that led to closure were ones that were not pertinent and relevant to such an issue. Indeed, it is significant that some $1. 4 million would need to be spent upon the maintenance of this school for it to be continued because of the fact that it has been let to fall into disrepair over the past decade. Further, it is also clear that the issues taken into account by the Task Force were pertinent issues to the Respondent at the time. It must be stated that it is not the Board's role or task to agree or disagree with the decision or the way in which the decision was reached to close Northland School. What we must do is weigh the circumstances relevant to the parties in this complaint and come to a conclusion as to whether or not these circumstances make the requirement or condition that the Aboriginal students access the public education service in Victoria without Northland one which is not reasonable. It is pertinent to note at this point that the Minister at the time of considering closure of this school gave consideration to the fact that some provision ought to be made regarding the "Koori program". This in itself is a recognition that the Minister at that time had appropriate concerns in relation to the provision of effective and accessible public education for Aboriginal students at that school. The queries made by the Minister were made at a time when on the evidence he was well aware of the financial commitments the Respondent would need to make if Northland were to remain open and of the high maintenance cost, and of the fact that the Task Force had determined the school met all the criteria for closure. As we have heard in the evidence, the Department gave the assurances to the Minister and it was on this basis the decision to close Northland was made. It is our view that the evidence we have heard does not bear out that the assurances given were soundly based. The evidence does not allow us to form any conclusions as to what was relied upon by the Director of the D.S.E. to give such an assurance to the Minister as neither he, nor any representative from the Department gave evidence in this complaint. Had the Minister been aware of the facts in regard to Northland school his decision may well have been different. As we have stated there were clear financial considerations in the decision to close Northland but in our view in balancing the effect upon the Complainants and the considerations that applied to the Respondent we cannot find that the financial and other considerations in removing Northland from the service offered by the Respondent outweigh the basic right of the Aboriginal students to have as effective an access to public education as non Aboriginal students. Given that we have found that Northland on the evidence was the only school present in the system of public school education which offered the Whole School Approach and which we have found did diffuse the cultural difficulties to Aboriginal access to education, in our view to offer the public education service to Aboriginal students without Northland is not reasonable.

Based on the foregoing, we are of the view that the Complainants have satisfied each of the requirements of Section 17(5) and thus have established that the Respondent has "discriminated" against them within the terms of this Section. The final conclusions in relation to this Section are as follows:-

1) That the Respondent has imposed on the Complainants a requirement or condition that they use the public system of education without Northland and its Whole School Approach

2) That a substantially higher proportion of non Aboriginal students can comply with this requirement or condition

3) That the Complainants cannot comply with the requirement or condition in the same way and on the same terms as non Aboriginal students

4) That the requirement or condition in all the circumstances is not reasonable.

Based upon its finding of discrimination, the Board then determined the appropriate method of redress.

Conclusion

In returning then to Section 29(1)(b) we find that the Respondent who is a provider of the service of public education in the State of Victoria has discriminated against the Complainants within the terms of Section 17(5) and such discrimination has been in the terms on which they are offering the public education service i.e. without Northland school. On reaching this conclusion we must then determine the issue of what redress is appropriate in the circumstances. As we have mentioned earlier in these reasons the Board is satisfied on the evidence that Northland School was a school which allowed Aboriginal students to access the service of public education on an equal or similar footing to non Aboriginal students. It is on this basis that the Complainants seek an order from the Board directing the Respondent to open Northland school and provide that same facet of the education service to Aboriginal students as pre 1993. Although lengthy submissions were made on behalf of the Respondent that this Board ought not embark upon such an order because of the inherent difficulties it was submitted would attend the implementation of such an order, it is our view that it would be a hollow finding in regard to the Complainants if we were not to so order. We find that to redress the discrimination that the Complainants have suffered as a result of the removal of Northland from the public system of education it is necessary pursuant to Section 46(1)(c) to order the Respondent to open Northland School. We heard submissions from both Counsel in this matter in regard to how such an order could be put into effect. We do not propose to engage in detailed and specific orders which would require supervision in the way which it was foreshadowed by Counsel for the Respondent. What we propose to order is that the Respondent open Northland School in the same way it would have provided for that school had it not made the decision to close at the end of 1992. Given that the Respondent in this matter is the State of Victoria and can be assumed a responsible Respondent who will approach the orders of this Board with bona fides we are confident in so directing that the order can be properly put into effect. It is our view that the Respondent is in the best position to implement such an order which will allow it to take into account its own standards and criteria in regard to staffing and financing of the school in every particular. However, having said that we do propose to direct that because the evidence supports that Northland School provided the service it did essentially based upon the staff who were in attendance at that school in 1992, to redress the discrimination we must direct that the Respondent notify each member of staff who was a member of staff at Northland in 1992 and offer to them the first opportunity to attend that school as a member of staff in a similar capacity as in 1992 for the 1994 school year. This direction extends also to the Principal of the school, Ms Galati-Brown. Further, we direct that the Respondent also notify all students who were enrolled at Northland school in 1992 that the school will operate in 1994 and that they have the right to enrol there as students to access public education service.

The State promptly appealed the Board's decision to the Supreme Court and obtained a stay of the Board's order to reopen the College pending the hearing and determination of the appeal. In early January 1994 Mr Justice Beach heard the appeal, and the Court handed down its decision on the first day of the 1994 school year. Mr Justice Beach upheld the State's appeal and dismissed the complaints. The school remained closed.

The complainants quickly appealed Mr Justice Beach's decision to the Full Court of the Supreme Court of Victoria. Despite obtaining an order for a speedy hearing, the appeal did not come on for hearing until June 1994. The Full Court, comprising Mr Justice Brooking, Mr Justice Phillips and Mr Justice Hansen, handed down its judgment on 3 August 1994, upholding the complainants' appeal.

The Full Court found that the Board was correct in holding that the closure of the College had the effect of discriminating against the complainants, but it held also that the Board had erred in deciding to order the State to reopen the College. It remitted the matter to the Board for further hearing and determination as to the appropriate remedy.

Full Court of the Supreme Court of Victoria (Brooking, JD; Phillips and Hansen JJ)

3 August 1994, Melbourne

The Court dealt with the history of the litigation and some preliminary matters and proceeded:

The appeal to this Court under s. 49(4) of the Act from the order of the Board is an appeal only "on a question of law". It is important, therefore, that the findings of the Board are to be accepted, save to the extent that, on such an appeal, they are open to challenge. Suffice it to say that before us the Board's findings of fact were not, in the main, said to be without foundation; it was not said, for instance, that some particular finding was not open to the Board on the evidence. Rather, the argument was principally along the lines that, accepting the findings of the Board, there was not established any act of discrimination contrary to the Act. For the most part, the argument depended upon what was urged on the one side or the other to be the proper construction of s. 28 and s. 29 of the Act and s. 17. Substantial submissions were made by both sides in writing and, in relation in particular to the formal orders made by the Board, the Court was referred to some of the evidence below. Having considered the matters put by way of argument and the evidence to which the Court was referred, we think that the complainants succeed on this appeal from the decision of the learned judge below, but not to the extent of having the State's appeal under s. 49(4) dismissed altogether.

The Court agreed with the Board's view that s. 28 was inapplicable.

Section 28

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... Section 28, on a fair reading, applies in relation to some particular educational institution, which is continuing. Thus, under s. 28(1) it may be unlawful to discriminate by refusing admission or in the terms on which admission is allowed. By s. 28(2) it may be unlawful to discriminate by denying access to a benefit being provided or by expelling the student or by subjecting the student to some other detriment. Both these subsections are critical to the operation of s. 28 and in both the language is appropriate to the continued operation of the educational institution in question. Consistently with this, subs. (7) provides that discrimination is not unlawful under s. 28 if "necessary for the maintenance of good conduct or discipline in a school, college, university or other institution at which education or training is provided".

In this case, where the complaint is about the closure of the College, s. 28 is simply inapplicable. It is therefore unnecessary to consider whether, in a case to which it applies, s. 28 is altogether exhaustive -- and thus exclusive, say, of s. 29 -- and we say nothing at all about that possibility.

Having disposed of the complainants' argument based upon s. 17(1) in regard to direct discrimination, the court went on to consider the application of s. 17(5) in conjunction with s. 29.

Section 29

The Board found unlawful discrimination in this case by applying s. 17(5) in conjunction with s. 29(1) and it was on this aspect that the State successfully appealed. ...

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As pointed out in Waters [Waters v. Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349], s. 29(1) requires some definition, first, of the "goods or services" being provided; for under s. 29(1) relevant discrimination is to be found, if it exists, in either a refusal to supply those goods or perform those services or "in the terms on which" the goods are being supplied or the services are being performed. It is important therefore to be clear about the "goods or services" in question. It may be accepted that the expression "services" is defined (in s. 4 of the Act) sufficiently widely to include the provision of education by the State and the matter was approached by both parties on that basis.

What was argued by the State was that the Board had defined the relevant "services" as public education without the College. The Board accepted -- and correctly in our view -- that the question of discrimination fell to be canvassed as matters stood after the College had been closed in that the complainants were contending that, with the College having been closed, the State was discriminating against them. But, it was then contended, if the relevant "services" were defined as being public education without the College, there was no act of discrimination within s. 29(1); for it could not be said that the State was refusing to perform the services (which by definition included services without the College); nor could the State be said to be discriminating "in the terms on which" the services were being performed (because, again, those services were education without the College).

This was the argument accepted by the learned Judge below and it was substantially on that ground that his Honour set aside the orders of the Board. Before us, the complainants contested the premise of the State's submission, arguing that, on a fair reading, the reasons of the Board did not involve the finding that the relevant "services" were public education without the College. They contended that, in truth, the Board had found that the relevant "services" were public education in Victoria and that the relevant act of discrimination lay in providing those services on terms that the complainants attend some school other than the College.

It cannot be denied that there are passages in the reasons for decision of the Board which can be relied on in support of the argument that the Board did make the finding which the State says it made. But, on a consideration of the reasons for decision as a whole, we consider the better view to be that the Board found the relevant service for the purposes of s. 29(1) to be the public education system in the State of Victoria. It is important that the Board approached s. 29(1) on the basis that the relevant act of discrimination fell to be discovered in the situation existing after the closure of the College. That was the point of time at which the complainants were alleging discrimination and it was in that context that the Board would ultimately proceed to decide what should be done to redress the discrimination. It follows that even if the "services" being provided at the relevant time were to be exhaustively described as "public education in Victoria" (without any further qualification), it was nonetheless the case that those services were being delivered at schools which no longer included the College. That is all, we think, that the Board meant when it said in its reasons, for example, that "on the evidence in this complaint the relevant service is the public education system without Northland". The Board was there directing its attention, in truth, to the terms on which the State was performing the service within the meaning of paragraph (b) of s. 29(1), rather than defining the service for the purpose of the introductory portion of that subsection.

To put it another way, what the Board did was to treat the relevant service as the provision of a public education system in the State and to treat the terms on which that service was performed as having been altered by the withdrawal of Northland from the system. All this does appear sufficiently, in our view, from the reasons of the Board considered as a whole and it is therefore unnecessary for the complainants to rely on the argument that it was most unlikely that the Board would consider the whole case in great detail on the footing that the service provided was the service without Northland, if on that footing (as the State contended) the service would have been defined in a way that made it idle to suggest that there was discrimination in the terms on which the respondent performed the service; for the case could then have been disposed of very shortly.

It follows that we agree with the complainants that the State did not establish the premise of its submission that the Board, having found the relevant service to be public education at schools other than the College, could not consistently with that finding, then conclude that there was relevant discrimination in the need for students thereafter to avail themselves of the public education system without recourse to the College. But, even if (contrary to our view) the premise was established, the State's submission depends very much upon a clear distinction being maintained between "the services" which are relevant to s. 29(1) and "the terms" on which those services are being provided; and, although that distinction is suggested by the actual wording of the subsection, it is one that may no longer be so persuasive since the decision in Waters, as we shall attempt to show.

It is plain enough that, on the face of it, the operation of s. 29(1) when read in conjunction with s. 17(5) revolves around three things: (1) the goods or services being provided; (2) the terms on which the goods or services are being provided; and (3) the condition or requirement the imposition of which is thought to discriminate unlawfully. Indeed, it appears to have been accepted in all of the judgments in Waters that the "requirement or condition" relevant to s. 17(5) must be something over and above, or separate and distinct from, the service (or more strictly speaking the "services") as defined for the purposes of

s. 29(1): 173 CLR at 361 per Mason, C.J. and Gaudron, J. (Deane, J. agreeing at p. 382), at p. 375 per Brennan, J., at p. 394 per Dawson and Toohey, JJ. and at p. 407 per McHugh, J. But it was also at least implicit in the majority view that the requirement or condition, relevant to the operation of s. 17(5), might itself be found in the very terms upon which the service is being performed. Thus, the service is one thing and the terms upon which it is being performed are another, while the requirement or condition relevant to s. 17(5) may be one of the terms upon which the service is being performed. And, of course, the result in a given case will not uncommonly depend upon the way in which the one (the services) are defined and the other (the terms) are described.

In Waters, the problem turned on the removal of conductors from some Melbourne trams, a step which made it more difficult, if not impossible, for those who were physically disabled, to make use of the trams. It was argued by the Transport Corporation that there was no discrimination "in the terms on which" the relevant services were being provided because by then the relevant services were driver only trams, by virtue of the Minister's direction that conductors be removed. That argument was accepted in effect by Brennan, J. who would have dismissed the complaint on that aspect. McHugh, J. apparently accepted the argument, too, if not yet its application to the case; for his Honour would have remitted the matter first for a more precise finding by the Board of the relevant services in question. He said (at p. 407):

If, e.g., the Board found that the relevant services were conductorless trams, then it is difficult to see how the use of trams without a conductor was a requirement or condition of providing the service. Whether the services provided were trams or trams without conductors was a question of fact for the Board.

But the other members of the Court rejected the argument. Mason, C.J. and Gaudron, J. said (at p. 361, Deane, J. agreeing):

Thus and subject to that qualification the identification of the service involved is no more than a determination of fact. ... It is clear that, without making any express finding to that effect, the Board proceeded on the basis that the service provided by the Corporation was that of public transport as affected by the changes directed by the Minister for Transport. ...

Once the service provided by the Corporation was identified (albeit, not expressly) by the Board as public transport as affected by the changes directed, it was open to it to find, as in effect it did, 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.

The description of the service as "public transport as affected by the changes directed by the Minister" clearly imports the removal of conductors from some of the trams. Their Honours saw the services, so defined, as nonetheless involving the imposition of a condition or requirement, relevant to the operation of s. 17(5), that the complainants avail themselves of that service without assistance from conductors.

Dawson and Toohey, JJ., in their joint judgment, said (at pp. 393-4):

The respondent, however, contended that the service provided by it was driver only trams and that there was, therefore, no relevant requirement or condition imposed with respect to the use of that service. It is true that for something to be a requirement or condition in relation to a matter it must be separate from that matter. However, whether such a requirement or condition is in fact separate from the matter to which it relates will clearly depend upon how the matter is described and how the requirement or condition is characterised. Given that the legislation should receive a generous construction, we do not think that the respondent can evade the implications of s. 17(5) by defining the service which it provides so as to incorporate as part of that service what would otherwise be a requirement or condition of the provision of that service. At all events the respondent ought not to be allowed to do so where the service previously provided by it was continued but with alterations which might be characterised as the imposition of different requirements.

This last comment appears to be apt in the present case too; for it was open to the Board to conclude, on one view of the facts, that the State was continuing the service previously provided by it "but with alterations which might be characterised as the imposition of different requirements".

Putting the matter shortly, the State vouchsafed no satisfactory basis upon which the case now under appeal could properly be distinguished from that of Waters. It follows, having regard to the stand taken in that case by at least five members of the High Court, that, even if the relevant service (for the purpose of s. 29(1)) was found by the Board to have been education without the College, the Board is not shown to have fallen into error only because it also found it a relevant "requirement or condition" (in "the terms on which" that service was being provided) that those wishing to make use of the system at secondary level do so, after the closure of the College at the end of 1992, without resort to the College.

Of course, if we are right in this conclusion, it may well mean that any reduction in a service being provided will necessarily involve a term -- and probably a "requirement or condition" -- that those hitherto enjoying the service do so thereafter with only the reduced benefits, in turn giving rise to the question whether that "requirement or condition" (if such it be) is unlawful discrimination by virtue of s. 17. Such an approach to s. 29 must necessarily make it difficult for any service provider to reduce the benefits of the service being provided, and if that means in turn that the Act therefore elevates existing benefits into minimum requirements for those coming within the protection of the Act, we simply note that, while that was a result which was foreseen by Brennan, J in Waters, it was not a consequence which was regarded by the other members of the Court as sufficient to dictate a different approach to s. 29.

Section 17(5)

On the basis that the Board is not shown to have been in error in finding a relevant "requirement or condition" in the provision of education after 1992 without students having access to the College, the remaining question is whether it was open to the Board to find that that "requirement or condition" is such as to offend against s. 17(5). Although thus far we have referred to that requirement or condition (for the sake of brevity) as one that the complainants attend at a secondary school which is not the College, that must be understood, in the context of the Board's findings, as a requirement or condition that the complainants, if they wish to avail themselves of secondary education at a school in Victoria, attend for the purpose at a school which is not providing the "whole school approach". ...

In argument, it was submitted on behalf of the State that the Board had overlooked the fact that the "whole school approach", involving as it did parents, teachers and the whole school community, was not itself something being provided by the State in any event. The State delivered the education system as a whole, and did so at those schools identified by the Minister under s. 32(1) of the Education Act. But the adoption of the "whole school approach" was something which, it was said, could be achieved at a particular school only by co-operation between parents, teachers and students. The school council would necessarily be involved in any such step and school councils are given a degree of autonomy under the Education Act.

There is perhaps some force in this contention that the State of Victoria is not itself wholly responsible for the adoption or not of the "whole school approach" at any given school. But while that may enter into the definition of the services being provided (for the purposes of s. 29(1)), it is less obviously relevant to the terms upon which those services are being provided (for the purposes of s. 29(1)(b)) or to the isolation of a relevant "requirement or condition" (for the purposes of s. 17(5)). It may be that for the State to close down the only school at which the whole school approach is adopted is to deliver the services which it, the State, is providing on terms that access is thereafter denied to that special method of education. The question remains whether those terms involve discrimination within s. 17(5), but that question is not decided by the fact that the particular method in question requires the assistance and co-operation of many others -- although such considerations may be relevant to the question of relief or remedy, if once it is decided that s. 17(5) is called into play in conjunction with s. 29(1).

The Court found that the Board had not overlooked the involvement of the many others in the "whole school approach" and went on to consider whether the closure amounted to discrimination under s. 17(5).

What remains for consideration is whether the requirement or condition which was identified by the Board -- that is, that if the complainants wished to use the public education service they should do so thereafter without resort to the College, and thus without the whole school approach -- is a requirement or condition amounting to discrimination by virtue of s. 17(5). The three paragraphs of that sub-section mean that there are three aspects to consider: (1) whether the complainants do not or cannot comply with the requirement or condition; (2) the relative degree of compliance between those of the status of the complainants and those of a different status; and (3) the reasonableness of the requirement or condition.

For the State, it was contended that the Board's finding that s. 17(5)(b) was established showed that the Board had misunderstood its task. Section 17(5)(b) asks of the complainants whether they "do not or cannot comply with" the requirement or condition. For the State it was contended that nothing prevented the complainants from attending other schools. It was conceded that, if it mattered, the quality of education which Aboriginal students might attain by attending other schools was perhaps impaired by their cultural disadvantages, as found by the Board; but, it was submitted, nothing in s. 17(5)(b) imports such a qualitative assessment of the result of compliance. The only question was whether the complainants did not or could not comply with the requirement or condition -- and, on the facts, that was not made out.

In our view, this submission should not be upheld. The requirement or condition, identified by the Board is that those formerly attending the College must now attend at a school elsewhere. The argument for the State concentrated on the word "attend" and emphasised the ability of the students to "attend" elsewhere. But that is not what is meant. The word "attend" does not import simply going to a place and standing there: it certainly includes going to the place but it also means going there to acquire an education. It was in relation to that further element that, according to the Board, the Aboriginal students failed in the main to comply; for, according to the Board, they "have an added cultural disadvantage in relation to their ability to access the public education service in Victoria and other States of Australia as compared with all non Aboriginal students". In short, we think that the word "attend" conceals the problem. What is meant by attending school elsewhere is having access to education at some other school. The requirement or condition would, perhaps, be better expressed as that those formerly attending the College are now being required to gain their education at other schools -- and, when the requirement is so expressed, the findings made by the Board are consistent only with the conclusion that Aboriginal students cannot comply with that requirement or condition. There is a cultural difference which, in the view of the Board and on the evidence, places an inhibition in the way of their doing so.

...

That brings us to the second aspect of the matter under s. 17(5). That is the comparative degree of compliance between those of the complainants' status (in this case, race) and those of a different status. Before us, there was much argument about the proper selection of the groups between which the comparison fell to be made and there was much reference to the decision in Australian Iron and Steel Pty Ltd v. Banovic [1989] HCA 56; (1989) 168 CLR 165. But this is a much simpler case. The requirement or condition, that those formerly attending the College, now attend elsewhere to gain their education is a requirement or condition plainly addressed to those formerly attending the College. We should have thought the proper comparison, required by

s. 17(5)(a) was perhaps between the Aboriginal students formerly attending the College and the non Aboriginal students formerly attending the College: the question raised by paragraph (a) is whether there is a substantially higher proportion of persons within the latter class who can comply with the requirement or condition than within the former class. As the relevant disadvantage appertains to the Aboriginal culture of those in the former class, we imagine that there could be but one answer to the question.

The Board, however, chose to compare the degree of compliance within a group comprising the former Aboriginal students at the College and another group comprising all students within Victoria. It was contended on behalf of the State that this was to compare like with unlike, and there is some force in the argument. But, on that argument, the comparable base groups are either confined wholly to students at the College or, on an alternative view, include all students within Victoria. Either way, and however the matter be framed, we should have thought there was but one answer to the question whether the degree of compliance with the requirement or condition was substantially higher in the non Aboriginal group than in the Aboriginal group.

...

That leaves only the third requirement of s. 17(5) -- that the relevant requirement or condition be "not reasonable". Little argument was addressed on the question of reasonableness, although for the State it was contended that the Board had here mistaken its task in that it had addressed the reasonableness of the closing of the College, rather than the reasonableness of the requirement or condition that, after the closure of the College, all former students, including the Aboriginals, attend for their education elsewhere. But the two are inextricably entwined; the one was but the step taken and the other the necessary reflection of that step. Having considered the Board's reasons in the light of the submission made, we are not satisfied that the Board can be shown to have fallen into error in this regard.

...

The submission made by the State did not persuade us that in so concluding the Board had misdirected itself in a significant respect. It might seem surprising that a statutory body such as the Board with no fiscal responsibility for executing the decision is empowered by the Parliament effectively to resolve the competition between the financial considerations affecting a policy decision of the State (such as to close a particular school or schools) and the personal ambitions and desires, however worthy, of individuals (such as the complainants); but that the Act does confer that power was clearly recognised in Waters, where the High Court upheld the Board's power in a proper case to reverse the Minister's decision to remove conductors from trams and remitted the matter for the Board to decide the question of fact raised by s. 17(5)(c).

For these reasons, the submission by the State that in this case the Board erred in law in finding that the requirements of

s. 17(5) were satisfied is rejected. This conclusion rests upon the findings of the Board and those findings are not open to examination by this Court, except as a matter of law. It is on the basis of the findings made that the Board is not shown to have erred in concluding that the complainants made out a case of unlawful discrimination under s. 17(5) in conjunction with s. 29(1) of the Act.

The Court then went on to consider the order made by the Board. After a detailed analysis of the relevant provisions of the Act in relation to the Board's findings, the Court concluded:

In the light of the foregoing, the approach taken by the Board, as disclosed by its reasons for decision, was erroneous in three respects. In the first place, the Board treated the "other persons" mentioned in the complaint as if they were (when they were not) "complainants" or "persons who had made the complaint" within the meaning of the first three paragraphs of s.46(2). We have earlier given reasons for this conclusion.

In the second place, the Board failed to consider whether the re-opening of the College in 1994 would prevent further acts of discrimination against (or would redress loss, damage or injury suffered by) Sinnappan and Foley (or one or other of them). Unless the re-opening of the school would have this effect, an order requiring it could not be made.

In the third place, the Board seems to us to have acted on the basis that s. 46(2) did not give it a discretion to refuse to make an order of one of the kinds mentioned in paragraph (a), paragraph (b) and paragraph (c) once the Board was satisfied that such an order could be made. We mean by this that the Board seems to have formed the view that the re-opening of the school would prevent further discrimination of the kind in question against those who had been Koori students at the school and that it was feasible for the school to be re-opened so as to provide the kind of education previously provided. Thus the Board concluded that on the facts an order could be made that would have the effect of preventing future discrimination against the complainants named as such and the other persons whom the Board viewed as complainants. Having reached this conclusion, the Board then took the view that it necessarily followed that the order sought should be made. The taking of that view overlooked the discretion which the section conferred, quite apart from the difficulty with regard to the identity of the complainants.

...

... It is of course difficult to see how an order that the College be re-opened could be justified as an exercise of power to compensate for past discrimination and for that reason, as well as on a reading of the Board's reasons as a whole, it seems that, whether referred to paragraph (a) or paragraph (c) or both those paragraphs, the Board regarded itself as acting to avert future discrimination. On that basis, the third error which we think exists lies in the Board's view that, once it was satisfied that an order for the re-opening of the school would avert future discrimination, then that order had to be made. The Board said that to redress the discrimination that the complainants had suffered as a result of the removal of the College from the public system of education it was "necessary" to order under paragraph (c) that the school be re-opened. The Board seems to us to have proceeded on the basis that once it decided that the re-opening of the school was the only way in which future discrimination could be averted, then it followed that the order for re-opening must be made. That was to overlook altogether the discretion that s. 46 conferred.

...

Conclusion

In the result, we think that in relation to the order made below on 24 January 1994 the appeal should be allowed and that order set aside. We agree with the learned Judge who entertained the appeal by the State of Victoria at first instance that the order made by the Equal Opportunity Board should be set aside, but we do not think that, in lieu of the order made by the Board the complaint of the two complainants, Sinnappan and Foley, should be dismissed. For the reasons given, the matter should be remitted to the Board for further consideration of the relief or remedy to be granted under s. 46 in line with the foregoing. Doubtless the Board will give due weight to the comments made by the Court about the exercise of its powers under s. 46 and it will have the opportunity then to take account of the submission which we think has much force and which might have been overlooked by it when considering its order on the earlier occasion -- namely, that the adoption of a "whole school approach" is not a matter involving only the respondent State of Victoria and that something less than the re-opening of the College might answer the legitimate claims of the two complainants. Put shortly, the Board will have the task of considering afresh what is reasonably practicable at this juncture -- nearly two years after the College was first closed -- as well as what might be appropriate under s. 46 to compensate the complainants for the consequences of past discrimination or to avert future discrimination by the respondent against them.

The Board commenced the re-hearing on 26 September 1994. The Complainants maintained their claim that reopening Northland Secondary College was the most effective way of redressing the loss suffered by them and other Aboriginal students as a result of the State's discrimination against them. The Board heard a mass of evidence from educational experts, members of the Northland community and officers of the Directorate of School Education about the practicability of reopening the school and the alternatives to doing so. On 2 December 1994 the Board published its decision, in which it held that it was practicable to reopen Northland and re-establish the whole school approach there, that the Complainants would both benefit from a reopened Northland, and that reopening was, in the exercise of the Board's discretion, the appropriate remedy to order.

On 14 December 1994, after hearing further submissions on the form of the orders, the Board ordered the State to reopen Northland Secondary College as an educational institution on and from 15 December 1994. It also made detailed orders as to how the reopening was to be effected.

The State immediately appealed the Board's decision to the Supreme Court. It again obtained a stay of the Board's orders and the school again remained closed over the summer holidays. The appeal was referred directly to the Full Court, constituted by the same judges as had heard the first appeal. The Full Court commenced hearing the appeal on the last day of the summer holidays, and gave its judgment on 17 February 1995. In substance, the Full Court confirmed the Board's decision that re-opening was a practicable and appropriate remedy. However, it held that the form of the Board's order was too open-ended and uncertain, and it remitted the matter to the Board once again, with a direction as to the orders the Board should make.

Soon after the Full Court's decision, the State announced that it would not be seeking special leave to appeal to the High Court. The following week the Equal Opportunity Board ordered by consent that the State reopen Northland Secondary College as soon as practicable and use its best endeavours to re-establish the whole school approach there as soon as practicable. The school reopened on 1 March 1995, and by Term 2 had exceeded the enrolments predicted by the Board. In mid-1995, almost one third of the students of the College were Aboriginal persons.

The various decisions have been reported as follows:

Sievers v. State of Victoria (1993) EOC 92-482 (EOB's first interim order decision).

Sinnappan v. State of Victoria (1993) EOC 92-498 (EOB's second interim order decision).

Sinnappan v. State of Victoria [1993] VicRp 38; [1993] 1 VR 547; (1993) EOC 92-499 (Ashley J's decision on the complainants' appeal against the Board's second interim order decision).

Sinnappan v. State of Victoria (1994) EOC 92-567 (EOB's first decision on the merits).

State of Victoria v. Sinnappan (1994) EOC 92-568 (Beach J's decision).

Sinnappan v. State of Victoria [1995] VicRp 27; [1995] 1 VR 421; (1994) EOC 92-611 (Full Court's first decision).

Sinnappan v. State of Victoria (1994) EOC 92-658 (EOB's second decision on the merits).

Sinnappan v. State of Victoria (1994) EOC 92-659 (EOB's reasons for formal orders).

Sinnappan v. State of Victoria [1995] VicRp 52; [1995] 2 VR 242; (1995) EOC 92-663 (Full Court's second decision).