Beasley v Department of Education and Training [2006] VCAT 187 | Case summary

Beasley v Department of Education and Training [2006] VCAT 187 | Case summary | Zoe

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17 First, there is a conflict in the evidence given by Dylan and his teachers at Pearcedale Primary School ("Pearcedale") as to the extent to which he understood the method of instructional communication used to teach him. I will deal with this matter more fully later. But in brief, Dylan's evidence was that he did not understand a considerable amount of that communication. His teacher's evidence was that he fully understood it. The State submits that I should give more weight to the evidence of Dylan's teachers given their training and the fact that with some exceptions, to which I shall come later, neither Dylan nor his parents complained that Dylan did not understand the method of communication used for him.

18 The reason why relatively few complaints were made is unclear. But in my view Dylan's evidence cannot be ignored. He is in the best position to know whether the method of communication used for him was one that he could understand, and to be able to estimate his level of understanding. In my view the truth lies somewhere between the evidence of Dylan and his teachers. In other words it lies somewhere between the two extremes. In my view Dylan understood more than he estimates in his evidence but less than his teachers said he did.

19 The second issue concerns the expert evidence. In assessing this, I have given more weight to the evidence of Professor Branson and Dr Komesaroff, who were called for the complainant, and Professor Power, a witness called for the State, than to the evidence of the other expert witness called on behalf of the State, Dr Lawson. All are experts in the field of education of the deaf and hearing-impaired children, but Dr Lawson herself acknowledged that she was not an expert in the best method of educating a profoundly deaf child who uses signing to communicate. She also acknowledged that she was not familiar with Sign Supported English.

20 Third, as my findings indicate, some of the key issues in this case relate to the method of communication used to teach Dylan at Pearcedale and the relative effectiveness of that method when it is compared with the method of communication used to teach children without a hearing impairment. It is claimed that the relative ineffectiveness of the method of communication used to teach Dylan has compromised his educational outcomes. Compromise to Dylan's educational outcomes, according to the complainant's claim, are measured either by comparing Dylan's potential to his actual educational outcomes, or by comparing Dylan's outcomes with those of his hearings of peers, children without his hearing impairment in his class. In my view, those outcomes can also be measured by looking at Dylan's rate of academic progress either individually or based on what is called the CSF levels, which are a standardised way of assessing educational progress.

21 Fourth, it is submitted by the complainant that from the respondent's failure to call a number of Dylan's teachers at Pearcedale as witnesses I should infer that their evidence would not have been helpful to the respondent. I decline to make that inference. A number of Dylan's teachers were called by the respondent to give evidence and they gave substantial evidence about the way in which Dylan was taught. I am not prepared to say that the respondent ought to have called all of Dylan's teachers. I am not prepared to draw an inference that their evidence would not have been helpful to the respondent.

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23 Pearcedale Primary School in Victoria is one of a number of schools operated by the State which has a deaf facility. Children who have particular degrees of hearing impairment, whom I refer to collectively as "hearing-impaired children", may, as far as the Victorian State School system is concerned, be educated at a regular State school without a deaf facility, or at one of Victoria's sixteen schools with a deaf facility or at one of Victoria's three schools for the deaf. Schools for the deaf are schools which cater for hearing impaired children only. .

24 According to a table prepared by Ms Shone, a senior manager in the Department which I accept was compiled from information given by the coordinators of the deaf facilities of the various schools and from their websites, the schools with deaf facilities use a variety of methods to communicate with their hearing-impaired children. From the table, it appears that out of fourteen deaf facilities, eight use Auslan, Sign Supported English ("SSE") and speaking and listening as some of their forms of communication. I exclude from this finding Pearcedale itself, which I deal with later, and St Albans East Primary School Deaf Facility, about which the table gives no information. Two of the fourteen schools listed in the table use Auslan and Speech in English but not SSE. Two of the fourteen are oral facilities. In other words, they use only speech and listening as a form of communication and not sign. Two use SSE and speech and listening but not Auslan. Three also use note taking. Eight of the fourteen schools in the table adopt multiple methods of communication for individual students according to their learning needs.

25 A deaf facility is a facility or area set aside at a school for hearing impaired students. The area normally includes a teaching space and specialised equipment. The teaching staff at each deaf facility comprise teachers of the deaf.

26 I accept the evidence of Mr Claridge, the manager of the program for students with disabilities and impairments ("PSD") and a senior manager in the Department, that at the times to which this claim relates the Pearcedale Deaf Facility was funded by the State to an extent that would provide one teacher of the deaf for each multiple of four students attending the facility or part thereof. So for example, in 2002 when the deaf facility at Pearcedale had its peak enrolment of 39 hearing-impaired students, it was funded to enable it to provide ten teachers of the deaf. I accept Mr Claridge's evidence that this funding was provided out of the Department's PSD program. For Pearcedale, funding was not provided according to a designated funding level for each individual hearing-impaired student eligible under the PSD program, but according to the ratio I have mentioned. The funding was provided as part of the school's global budget to be allocated as the school thought fit. I accept Mr Claridge's evidence on these matters.

27 Individual student funding allocation can also be made from the PSD where students attend a regular school without a deaf facility.

28 The ratio funding allocation method is also used for the deaf facilities in secondary schools. These include Mount Erin Secondary College ("Mount Erin") to which Dylan went later. He attended Mount Erin from 2004 onwards. The ratio funding allocation for secondary deaf facilities is funding for one teacher of the deaf for every six, or multiple of six students or part thereof enrolled in the deaf facility and one Auslan interpreter for every six or multiple of six students or part thereof students enrolled in the deaf facility. Again the funding is part of the school's global budget.

29 Teachers of the deaf are qualified teachers who have also completed additional training, usually one year, leading to a post-graduate qualification as a teacher of the deaf. On the evidence it appears that Auslan is not a major part of this training. Dr Komesaroff's evidence, which I accept, was that in the early 1990s teachers of the deaf courses included four hours training in sign. She said by the late 1990s this had risen to eighteen hours training in sign. She said by 2005 these courses included some 60 hours training in sign. However some teachers of the deaf did have additional training in Auslan. For example Ms Morgan, who was Dylan's teacher of the deaf in Grade 5, said that she had completed some basic Auslan training at a TAFE college.

30 In 2000 and 2001 Pearcedale trialled, in a number of classes including Dylan's, and in 2002 implemented throughout the school, an educational strategy known as co-enrolment. Co-enrolment was supplemented for the hearing-impaired students by sessions in the deaf facility which concentrated on English literacy and on language, but also dealt with other matters such as numeracy and general subject support. Before the co-enrolment model was implemented, Pearcedale's hearing-impaired students had mainly been taught separately from their peers in the deaf facility, although they and their hearing peers attended some classes together. This earlier model was known as the withdrawal model.

31 Co-enrolment involved hearing-impaired students and their hearing peers being taught together with the same curriculum and in the same classroom. The entire task was taught by two teachers using a team approach. One of these was the class teacher. The other was the teacher of the deaf. Under this approach both teachers taught the whole class but the teacher of the deaf provided extra assistance for the deaf and hearing-impaired children in the class. This assistance comprised appropriate clarification, repetition, modification of work and explanation. The work involved teaching and not interpreting. On these matters I accept the evidence of Ms Kerby, coordinator of the deaf facility at Pearcedale, Dylan's Grade 5 teacher, Mr Tonks, who was the class teacher, and Ms Morgan, who was the teacher of the deaf.

32 I accept Ms Kerby's evidence that the majority of her time in the co-enrolment classes was spent with the hearing-impaired students. She estimates the proportion as between 60 and 80 per cent. In my view it is a reasonable inference from the evidence that the same proportion would have applied to the other teachers of the deaf in Dylan's classes.

33 I accept the evidence of the Pearcedale principal, Mr Mackenzie, and Ms Kerby that the hearing-impaired students during Dylan's time at Pearcedale represented a range of hearing impairments from moderately hearing- impaired to profound deafness. The students communicated in a variety of ways. Some communicated orally, using their residual hearing or devices such as "FM units" (a radio device), or hearing aids or cochlear implants. Some used SSE. Some used a mixture of SSE and oral communication. Two, including Dylan, used Auslan only. The other Auslan-using student came to Pearcedale in Grade 5 and was in the same class as Dylan in Grades 5 and 6. This student and Dylan were the only hearing-impaired students at Pearcedale during his time and in his classes whose first or native language was Auslan. They came from homes where Auslan was the only language used.

34 From at least 2001 Pearcedale taught Auslan as a LOTE, that is, as a Language Other Than English. All Pearcedale's non hearing-impaired students are taught this LOTE.

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35 I now say something about Auslan, SSE, Signed English and Total Communication. I now first explain something about these terms. My findings are based on the evidence of the experts Professors Branson and Power and Dr Komesaroff and the coordinator of the deaf facility, Ms Kerby. I have also taken into account the numerous articles and other pieces of expert literature attached to the experts' witness statements.

36 Auslan means "Australian Sign Language". It is a visual and spatial language made up of signs. The signs are made using the body, particularly the hands and fingers. Facial expression and body movement are also part of this language. Signs are placed in space, which is why I have said that it is a spatial as well as a visual language. Different placement in space of a sign can alter its meaning. Auslan, like any language has its own grammar, syntax and structure. This does not correspond to English. Auslan has been recognised by the Australian Government's language and literacy policy as the language of the deaf community since the very early 1990s.

37 Deaf communities in other countries also have their own native sign languages. Examples are the sign languages used in America and Sweden. Signed English is a system devised in Australia and used in the 1970s and 1980s to represent English on the hands. The signs represent English words and follow English grammatical and syntactical structure.

38 Fingerspelling, using one sign per letter, can be used to spell words.

39 Sign Supported English, or SSE, seems to have come into use in the late 1980s and in the 1990s. It also represents English. It follows English word order, grammatical and syntactical structure. It uses Auslan signs for each word where these exist. Where there is no Auslan sign, it either uses a sign from Signed English or fingerspelling.

40 Total communication is the use of sign and speech together at the same time. The person signs and speaks at the same time what is to be communicated. In the evidence before me, simultaneous communication was used sometimes to mean total communication and sometimes to mean SSE with speech overlay.

41 The difference in structure between Auslan and SSE can be illustrated by an example put in cross-examination to a number of the experts and teachers. In Auslan, when one wants to say, what in English would be "I went to the beach", the signs would be, "beach go me before". In SSE, as signed by Ms Morgan, the Auslan signs for, "beach" and "I" would be used and the words, "went to the", are finger spelt. Prepositions and verb endings such as "ed" and "ing" are not part of Auslan. I say more about these matters under the topic of expert evidence.

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54 Pearcedale first trialled co-enrolment in 2000. It is proper to infer from the evidence that in 2000 Dylan was taught by this method but probably there was some withdrawal, given that this was a trial. In other words, hearing- impaired children were taught partly in class together with their hearing peers and partly in the deaf facility. My findings as to this year and as to 2001 are based on the evidence of Dylan himself and Ms Kerby.

55 In 2000 Judy Henderson was Dylan's teacher of the deaf. She was in Dylan's class 98 per cent of the time. According to Dylan, he understood 50 per cent of her signing, which he says was Signed English. But I am satisfied that there was some confusion in Robyn Beasley's evidence, but also in Dylan's, where they use the words, "Signed English" either to mean Signed English proper or SSE. Ms Kerby gave evidence that SSE was used. I accept that evidence. I am not satisfied that Signed English was the method used.

56 Ms Kerby says that Dylan appeared to understand what was communicated. According to Ms Kerby, this school's philosophy was SSE and it is, it seems to me, fair to infer from this evidence that SSE was used in this class and indeed in Dylan's other classes subject to some of my later findings concerning grades 5 and 6.

57 All the evidence contains some confusion in relation to the use of the words, "SSE" and "Signed English". SSE was used, according to Ms Kerby's evidence, which I accept, with speech overlay. That is, sign and speech were used at the same time. I am satisfied also that the kind of SSE that was used meant that where there was no Auslan sign for a particular word, the word was either fingerspelt or a sign from Signed English was used.

58 In the December 2000 report by Judy Henderson, the teacher of the deaf in that year, there was a comment that Dylan liked teaching Auslan signs to others but needed reminders to slow his rate of signing so that the teachers of the deaf could understand him. In the light of the general comments I made earlier concerning the resolution of the conflict between the evidence of Dylan and his teachers about the extent of his understanding of the method of communication used, I find that Dylan understood considerably more than the 50 per cent he estimates but considerably less than the 100 per cent, which according to Ms Kerby's evidence was the amount of his understanding.

59 In Dylan's Grade 3 class and indeed in his Grade 4 to 6 classes, there were approximately five hearing-impaired children and about twenty hearing children. The time spent by teachers of the deaf in the mainstream class was divided between these hearing-impaired students according to their needs. Dylan then did not have continuous one-to-one attention. This, on the evidence, applied in all the grades from Grade 3 onwards.

60 In addition in Grades 4 to 6 and for at least some time in Grade 3 when hearing and hearing-impaired children were taught together, the teacher of the deaf spent some time with the class as a whole as part of the team teaching approach involved with co-enrolment. But on the whole of the evidence and taking into account particularly the evidence of Ms Kerby and Ms Morgan, I am satisfied that the teachers of the deaf continued to spend a large majority of their time with the hearing-impaired children and to treat those children as a priority in the class. If the teacher of the deaf was in the class, I am satisfied that Dylan, or any other hearing-impaired child, could have sought their help or clarification where needed.

61 In 2001 Dylan was in Grade 4. The teacher of the deaf was Ms Kick. She used 70 per cent Auslan and 30 per cent SSE. Ms Kick was in his class approximately 95 per cent of the time. Dylan's oral evidence was that he could understand other sign systems but found Auslan easier. It is clear from his evidence in my view that he could understand all Ms Kick's communications with him.

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62 In this year Dylan's class teachers were Mr Tonks and Ms Morgan, the teacher of the deaf. My findings in relation to this year are based on the evidence of Mr Tonks and Ms Morgan, on Ms Kerby's evidence and on the evidence of Dylan.

63 Mr Tonks knew only basic sign. Ms Morgan was in Dylan's class approximately 70 per cent of the time. She used 15 per cent Auslan and 85 per cent SSE. This, I have said, was SSE supplemented as the need arose, by fingerspelling and signs through Signed English with speech overlay. I find, on the basis that I have mentioned in my general comments, that Dylan understood considerably more than the 60 per cent he estimates of classroom instructional communication, but considerably less than the 100 per cent estimated by Ms Kerby.

64 As well as some maths tuition given to the class as a whole, there were three special maths groups. For these the class was divided into three groups according to skill and proficiency. Dylan began in the lowest group, which included most of his hearing-impaired peers. In this class, because of the particular needs, Ms Morgan was always present to assist.

65 After some further assessment in early Term 1 of 2002, Mr Tonks and Ms Morgan formed the view that Dylan's skill and proficiency warranted that he should be in the middle group, Group 2. Because this group and the lowest group's classes occurred at the same time, Ms Morgan was unable to be present in the middle group's classes.

66 Ms Beasley's evidence was that the matter was not discussed with her or her husband. The evidence of Dylan's teachers, Mr Tonks and Ms Morgan was to the contrary. On this point I found the evidence of Dylan's teachers to be more convincing.

67 I accept the matter was discussed by Dylan's teachers with Dylan's parents. The choice was put to them, either to leave Dylan in the lowest group where he would be assisted by Ms Morgan and because his skills and proficiency were higher than most of the other children in the group he would be given different work but would still have the benefit of Ms Morgan but would not have the benefit of working with peers of equal skill and proficiency. The alternative was to work in the middle group, doing the same work as the rest of the children in that group, having the benefit of working with peers of the same level, but without any assistance from the teacher of the deaf and without any teacher who could sign to him. It was agreed between the teachers and Dylan's parents that he should be moved to the middle maths group which is called Group 2.

68 I accept Dylan's evidence that occasionally Ms Morgan came to this group to help him. Mr Tonk's evidence was that Dylan was fully able to access the curriculum in this group, that he did not observe him having any difficulties and that neither Dylan nor his parents complained or asked for additional assistance. Dylan's evidence as to whether he complained to Ms Morgan was somewhat inconsistent. At one point he says that he complained to her but at another he says that he simply asked her to repeat some of her signing.

69 It is not clear in my view from Dylan's evidence that he made a complaint. Dylan's evidence was that he was bored and frustrated. I accept this evidence. But I also accept that he was able to understand a considerable amount of the curriculum, although I doubt that he understood the whole of it, at least from tuition in this class itself. It is unclear from the evidence why Dylan did not ask for more help and it is speculative for me to assign a reason.

70 It may be that Dylan was able to understand the portion of the curriculum he did because of the written and visual methods used in the maths class itself, the occasional help from Ms Morgan and the supplementary assistance provided by the Auslan assistant and the teacher of the deaf and during the withdrawal sessions in the deaf facility.

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71 I now come to Dylan in Grade 6 which was in 2003. In Terms 1 and 2 of 2003 the teacher of the deaf in Dylan's class was Ms Ashford. I accept Dylan's evidence that Ms Ashford was in the class 60 to 70 per cent of the time. My other findings in relation to this are based on Ms Kerby's evidence and on Dylan's evidence. I accept Ms Kerby's evidence that Ms Ashford communicated in SSE supplemented, as I have said, by finger-spelling and signs from Signed English. Dylan's evidence was that he understood 70 per cent of what Ms Ashford communicated to him. I find on the basis that I have explained earlier, that Dylan was able to understand considerably more than he said he could, but considerably less than the 100 per cent which Ms Kerby estimates.

72 Ms Ashford was to be on leave in the first two weeks of Term 3 of 2003 but shortly before that time she announced that she would be leaving the school altogether. Mr Mackenzie and Ms Kerby estimated that any formal process of advertising and selecting a replacement for Ms Ashford would not be completed before the end of Term 3. Ms Kerby contacted the Victorian Society for Deaf Children ("VSDC"), to ask them to arrange to advertise for an Auslan interpreter. Only one person, from Adelaide, responded to the advertisement but ultimately did not pursue an application.

73 My findings as to what Pearcedale then arranged are these. For the first two weeks of Term 3, according to Dylan, there was no teacher of the deaf or sign interpreter in his class. According to Ms Kerby, Carmel Monitto, a teacher of the deaf who was then on leave, came back and assisted in his class for that two weeks. I accept Ms Beasley's evidence that Dylan told her that there was no one in his class for him during the first two weeks of Term 3. I find Dylan's evidence on this point clear, convincing and compelling. It is unlikely in my view that he would fail to recall accurately such a serious matter. I accept his evidence on this point in preference to Ms Kerby's.

74 For the rest of Term 3 Dylan had a number of people who worked in his class. Ms Young who was a qualified teacher but who was completing her teacher of the deaf qualification, but had not yet completed it, worked in his class two days a week. Ms Gilbert worked in his class two days a week. I find that there was no teacher of the deaf or sign interpreter in this class for the fifth day of each week for the rest of that term. On each day in Terms 3 and 4, Ms Kerby worked with the hearing-impaired children in the class in literacy and numeracy support. On the day on which there was no teacher of the deaf or sign interpreter to support Dylan for the rest of that term, according to Ms Kerby there were only practical classes. There is no evidence as to which particular day in each week this was and in my view there is insufficient evidence as to the nature of the classes on that day for me to make any findings about what classes were taught.

75 In Term 4 Ms Kerby continued to provide literacy and numeracy support. I accept her estimate that she provided approximately 1 to 2 hours a day. Ms Gilbert worked in Dylan's class for two days a week. Ms Monitto worked in his class for another two days a week. Ms McIntyre worked in his class for one day a week.

76 I find that Ms Monitto used SSE supplemented by some fingerspelling and Signed English as I have explained before. I find that Dylan estimates that he understood between 55 to 60 per cent of her communication. For the reasons given in my general comment I find that this was an underestimate, that he understood considerably more than this, but considerably less than 100 per cent.

77 Ms Gilbert is not a teacher or interpreter but uses Auslan as she is the parent of an Auslan using child. I accept that Dylan understood her communication.

78 On Dylan's evidence Ms McIntyre used a combination of SSE and finger-spelling but it appears that signing was used only for approximately 50 per cent of the time. The rest of the communication was in writing. I find that Dylan did not understand her well.

79 I accept Dylan's evidence that Ms Young communicated only by finger-spelling. I accept that Dylan understood her hardly at all. He estimates approximately 2 per cent.

80 I also accept Dylan's evidence that on occasions Ms Monetta left school early at approximately 2.15 pm but no one replaced her on these occasions.

81 I accept Ms Kerby's evidence that Ms Kerby used some SSE and some Auslan to communicate. There is some evidence about a teacher called Ruth who was an emergency teacher but there is insufficient evidence for me to make findings about how often she taught or what were her skills and sign.

82 I accept Dylan's evidence that on some occasions, students in class who had some signing skills, having studied Auslan as a LOTE, tried or were asked by the class teacher to help him. Ms Kerby said that this was merely part of normal class discussion but on this point I find Dylan's evidence more compelling. Dylan said in his evidence about this second half of the year, that it was his worst time at Pearcedale and that he feared he would have to repeat Grade 6.

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88 I now come to Dylan's educational outcomes. My findings on this subject are based in particular on Dylan's school reports, included in the witness statements of Robyn Beasley and Ms Kerby and also in the witness statement of Ms Davis. The reports of some of the hearing children are also included in Exhibit 16. Graphs of the educational results are also attached to Mr Tonk's witness statement.

89 The evidence of Dylan's teachers, Ms Morgan, Mr Tonks and Ms Kerby was that, except in English in Grades 5 and 6, Dylan was not failing and was making satisfactory progress although not achieving to his potential. The evidence of Robyn Beasley is that Dylan's results were declining and that by Grade 6 he was failing. The reports are more contemporaneous and in my view less subjective.

90 There are some difficulties in comparing Dylan's outcomes with those of the hearing children in his particular class. First, some but not all of the reports of his hearing peers in Grades 5 and 6 are in evidence and that none of the reports for the earlier grades are in evidence. Second, the graph which is attached to Mr Tonk's witness statement and deals with the Grade 6 students including Dylan, relates to the whole of the Grade 6 classes, both hearing impaired and hearing children as well. Some findings, however, can be made.

91 I accept Ms Kerby's evidence that Dylan came to Pearcedale with deficits in English literacy and that he would have difficulty catching up in this area. I accept Mr Tonk's and Ms Kerby's evidence that in classes in early grades in primary school there may be a five year difference in academic level between the lowest and the highest students and that in higher grades in primary school this difference can be up to seven years. However I also accept Mr Claridge's evidence that the Curriculum Standards Framework ("CSF") represents the educational level at which a child is expected to be at a given point in time.

92 The CSF level for Grades 5 and 6 is Level 4. The level is divided in to sub categories: Beginning, Consolidating and Established, in ascending order of academic level. CSF Beginning Level 4 is expected of a child in Grade 5 from the beginning to the mid point of the grade. CSF Consolidating Level 4 would be expected of a child from mid Grade 5 to mid Grade 6. Established Level 4 would be expected of a child at the end of Grade 6. My findings also have to be seen in the context of the evidence given by the psychologist Ms Wilson which I accept. That evidence was that, compared to children in the general population, Dylan's intelligence was in the high average range.

93 Given the short time that Dylan had a Pearcedale in 1999 I make no findings concerning that year.

94 In 2000 Dylan was absent from school for 19 days. In 2001, by the end of June he had been absent from school for 7.5 days. There is no report in evidence for December 2001. In 2002 he was absent for 36 days. In 2003 he was absent for 73.5 days. Of this, 13.5 days of absence occurred before July 2003.

95 The teachers' comments in Dylan's reports for June and December 2000 are very positive, emphasising his good attitude to work, his good behaviour and academic progress. The expected level for this year was CSF Level 3.

96 Dylan's English improved from Beginning Level 2 to Consolidating Level 2. Ms Kerby's evidence was, as I said, that Dylan came to Pearcedale with a deficit in English. For maths measurement Dylan progressed from Established Level 2 to Beginning Level 3. In number, he progressed from Beginning Level 3 to Consolidating Level 3, with the other maths areas remaining at Beginning Level 3.

97 In integrated studies he appears to have gone from Consolidating Level 2 to Beginning Level 3. In PE and in art he is rated as Consolidating Level 3. There is no result for these two subjects for June 2000. These results that I have mentioned are for December 2000. This, one must remember, was in a year when I have found that the method of communication for instructional purposes used for him was SSE.

98 In 2001, where the method of communication used for Dylan was Auslan, the comments are still positive but slightly less so. I have, as I have said, only the June 2001 report in evidence. That report first raises as an issue of concern Dylan's organisational skills. Again the CSF level for this year was Level 3.

99 Dylan's English had progressed from Consolidating Level 2 to Consolidating Level 3. His maths had progressed to Consolidating Level 3 in all areas. Integrated studies had progressed from Beginning Level 3 to Consolidating Level 3. Art seems to have remained at Consolidating Level 3. PE had improved from Consolidating Level 3 to Established Level 3.

100 As I have said, in 2002, Dylan's Grade 5 year, the expected level was CSF Beginning to Consolidating Level 4. Dylan's absence as I said was much greater in this year, some 36 days. Again the method of instruction was, as I have found, SSE. Dylan's reports for this year contain some positive comments but emphasise the need for Dylan to approach the classroom teacher for clarification rather than relying on the teacher to discover his needs. The reports raised concerns about Dylan's approach to homework and his absence on days when homework is checked and when tests are conducted. They raise the need for him to read at home more and take more responsibility for his own learning.

101 In English Dylan's writing remained at Pre-Level 4 throughout the year. His speaking and listening remained at Beginning Level 4 throughout the year. His reading improved during the year from Pre-Level 4 to Beginning Level 4. His maths remained at Beginning Level 4 throughout the year. His integrated studies improved from Beginning Level 4 to Consolidating Level 4. Art improved from Consolidating Level 3 in June 2001 to Consolidating Level 4 in December 2002. PE improved from Established Level 3 in June 2001 to Consolidating Level 4 in December 2002.

102 In Exhibit 16, the outcomes for December 2002 of twenty-one of Dylan's hearing peers are tabulated. When these outcomes are compared with the outcomes for December 2002 of the hearing peers in his class in Grade 5 which are set out in Exhibit 16, Dylan's educational outcomes are not substantially lower except for English. In English his results are within the lowest end of the spectrum represented by the hearing peers for all areas except for writing and are one of the lowest for writing (together with four other hearing peers). His hearing peers, it must be noted, often achieve different results for different areas of a particular subject, as does Dylan.

103 In maths Dylan is lowest in the spectrum together with two others, and a third child who has differing results in different areas of maths. In what is commonly called SOSE, that is Studies of Science, Environment, Health and Information Technology, Dylan is equivalent to almost every one of his hearing peers. Of the 21 hearing peers whose results are in evidence, the highest number of days absent for 2002 was fourteen.

104 In 2003 I have noted that Dylan was absent for 73.5 days. His reports for this year comment on some unacceptable behaviour in the playground, reluctance to voluntarily contribute to classroom discussions, poor organisational skills, the fact that he has yet to master time management and weekly work routine, the fact that due to his absence he has missed out on instruction and has gaps in his education. They also comment on his failure to hand in certain work and that he has not reached his educational potential.

105 Not all comments are negative. For example in December 2003 the report notes steady progress in English and a continuing improvement in comprehension and that effort has been made in spelling. All this is in a context where the expected CSF level for a child at the end of Grade 6 is Established Level 4. In this context Dylan's results are as follows. I compare them with his results at the end of 2002.

106 In English his writing remained throughout the year at Pre-Level 4 as it had throughout 2002. His reading, speaking and listening, which in December 2002 and June 2003 were Beginning Level 4, declined to Pre-Level 4 by December 2003. His maths, except for one area, declined from Beginning Level 4 to Pre-Level 4. The exception is number, which between December 2002 and June 2003 had improved from Beginning Level 4 to Consolidating Level 4 but did not improve for the rest of the year.

107 The group of subjects called SOSE remained throughout the year at Consolidating Level 4 as they were in December 2002. His PE improved from Consolidating Level 4 to Established Level 4 in June 2003 and remained at that level for the rest of the year. His art, which was at Consolidating Level 4 in December 2002 and June 2003, improved to Established Level 4 in December 2003.

108 Dylan's outcomes for 2003 may be compared with those of his hearing peers in Grade 6 in two ways. The first is by looking at the results of the hearing peers in Exhibit 16. The second is by looking at the graph of results for all children in Grade 6 which was prepared by Mr Tonks and is included his witness statement.

109 I deal with the Exhibit 16 comparison first. If Dylan's educational outcomes in Grade 6 are compared with the results of 20 of his hearing peers in that grade in December 2003, again there are varying results for different areas within subjects. In English speaking and listening, Dylan is in the lowest spectrum with two others at Pre-Level 4 in all areas and two more at Pre-Level 4 in reading. The rest of the hearing peers are either at Consolidating or Established or Advanced Level 4.

110 In maths Dylan is in the lowest spectrum, although with two of his hearing peers, one of whom is in Pre-Level 4. Virtually all the other hearing peers are either at Consolidating or Established Level 4 with the majority at Established Level 4.

111 In SOSE Dylan is at the lowest end of the spectrum sharing Consolidating Level 4 with three other hearing peers. Almost all the others are at Established Level 4. For the hearing children listed in Exhibit 16, the greatest number of days' absence in 2003 was twenty.

112 The second method of comparison uses the graph prepared by Mr Tonks. Given the number of hearing children whose results appear in this graph, the graph would appear to relate to the whole of Grade 6 and to both hearing and hearing-impaired children alike, including Dylan. It shows the results as at November 2003. Dylan is at the same level as one other student, with two students below him and seventy-three above in the speaking and listening area of English.

113 The graph supports Ms Kerby's evidence that there is a wide range of academic level in students within these later grades of primary school. It supports the evidence of a seven year range. It shows, for example that in Grade 6 English, the students at the lowest level was mid Grade 2 and the student at the highest level was Year 10. In writing the graph shows Dylan at the same level as eleven others with seventeen below him and forty-seven above. In reading he is at the same level as four others, with four students below him and sixty-seven above. In maths he is at the same level as eleven others, with eight below him and fifty-five above.

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114 I now make some findings about Dylan at Mount Erin. A third way to assess Dylan's educational outcomes at Pearcedale is to compare them with his educational outcomes at Mount Erin. Mount Erin was the school to which he came in 2004 and which he still attends. In 2004 he was in Year 7. My findings on this subject are based on Dylan's evidence and the evidence of Ms Davis, the coordinator of the Mount Erin deaf facility. I have given particular weight again to the school reports which are attached to Ms Davis' witness statement and Robyn Beasley's witness statement.

115 There is some inconsistency between Ms Davis' oral evidence and her witness statements. But on the evidence as a whole I find that at Mount Erin Dylan has had one-to-one interpreting in core subjects such as English, maths and SOSE and in theory classes in all other subjects and for 15 minutes at the beginning of each practical class and for a time at the end of each practical class. The evidence is not clear how long interpreting lasted at the end of each practical class. The exception as far as practical classes were concerned is ceramics in which Dylan had one-to-one interpreting.

116 The interpreting was in Auslan in most subjects. In English it was in SSE, but if Dylan indicated that he could not understand, then interpreting was in Auslan. Dylan was given additional support in class by a teacher of the deaf and also in the deaf facility. Extra literacy tuition was provided in the deaf facility.

117 Mount Erin's teachers of the deaf are funded on a ratio of one teacher of the deaf to six or every multiple of six hearing-impaired students or part thereof. Interpreters are funded on a similar basis. I am satisfied that interpreters and teachers were provided on this funding basis. While Dylan had one-to-one interpreting assistance in the classroom, he did not have the one-to-one assistance from the teacher for the deaf.

118 In 2004 in Year 7 Dylan was absent for forty-four days. His reports throughout the year raised lack of organisational skills, failure to complete work and assessments, difficulties in watching the interpreter and using the interpreter to relay information from Dylan to the class teacher and from the class teacher to Dylan. The reports also raise failure to hand in certain work, and the need to take responsibility for his own learning. They mention that Dylan could be distracted in class and that in the deaf facility it was difficult to prepare units of work for him because of his need to catch up on mainstream work missed due to absence.

119 In health and PE, art, deaf facility work, maths and technology, he is marked as "S" for satisfactory. English and science are shown as "N" for not satisfactory. SOSE is also shown "N", not satisfactory.

120 In 2005 Dylan was in Year 8. From the beginning of the school year to 2 August 2005 Dylan was absent for forty-four days. Similar comments are made in his reports for this year as appear in his Year 7 reports; in particular concerning the failure to submit work. All subjects are marked "N", for not satisfactory. There is also comment in his report on the failure to hand in written work.

[42]

124 I now make conclusions about Dylan's educational outcomes. I find that for 2000 and 2001 Dylan made good progress in all subjects including English. The fact that the method of instruction used for him in 2000 was SSE and in 2001 was Auslan does not seem to have affected his progress. In 2002 in Grade 5 his progress was more variable and his outcomes mixed; with lack of organisation, absence and failure to complete work being raised in his reports. His English, except for reading, did not improve. Nor did his maths. His integrated studies, art and PE all improved. When compared with his hearing peers he was absent for far more days than they. His results in English and maths, although not lower than all of his hearing peers, were lower than most. His results in SOSE were equivalent to his hearing peers.

125 In 2003 in Grade 6, Dylan's absence was more than three times greater than the absence of the most absent of his hearing peers. These absences are noted in his reports as well as poor organisational skills and the failure to hand in work.

126 In English his level remained the same or declined. His maths level, apart from one area, did not improve. His art and PE improved but his SOSE did not. His results in English, when compared with his hearing peers in that year, while not lower than all of them are among the lowest. It might be said that they were among the lowest 30 per cent although that is a rough estimate. In terms of levels, a comparison of Dylan's results with the other results in Grade 6 show that again he is not lower than the lowest levels for the rest of the grade. In English he is at the lowest level with a few of his hearing peers with many above him, some two to four levels above him. In maths again he is at one of the lower levels compared with hearing peers, with a few below him and the majority some two levels above him. In SOSE, he is again at a low level with a few of his hearing peers, but with most one level above him.

127 In the second half of this year I have found that Dylan had less SSE communication than in earlier years and sometimes, but not always, no sign communication at all. But this is also the part of the year during which he was most absent. This part of the year he was absent for sixty days.

128 At Mount Erin where he had one-to-one interpreting support in SSE and Auslan and where he was given Auslan clarification and communication when he needed it in the classroom, he was absent for many days in both Year 7 and 8. His results have not improved. In particular there has been a significant decline in Year 8 where he has actually lost ground rather than remaining in the same position.

129 Taking all this into account I am not prepared to find that Dylan's educational outcomes have been affected at Pearcedale by the method of instruction or communication used for him in the classroom. His reports show that in some areas he has made progress although not as much as his teachers suggest they expected. They also show that his educational outcomes have declined from Grade 6 and that the decline is more rapid at Mount Erin where he receives one-to-one interpreting and much more Auslan communication. I am satisfied that the probable cause of this decline is his prolonged absences from school and their consequences. Their consequences are that he has missed school, that there are some gaps in his education and that when he attends classes in the deaf facility he must spend time catching up with work missed and that this affects his ability to learn new work and be given the literacy support usually given in the deaf facility.

130 Given the evidence that Dylan is a bright child, of high average intelligence compared with his hearing peers I find that he has not reached his educational potential, although, from the evidence, it is not possible to express that potential by a specific educational level. I find that the reason for this is the same as the reason for the decline in his educational outcomes.

[43]

131 My findings are based on the expert evidence given by Professors Branson and Power, Dr Komesaroff and Dr Lawson. In my general comments I have explained the weight which I give to the evidence of these experts.

132 In Australia the mode of signed communication in use for a long period was Signed English. It has many deficiencies. Because it follows English grammar and word order and because, as Dr Komesaroff explained, the use of the great articulators, such as the hands and the body, is slower than the use of the smaller articulators, such as the tongue and lips, it is much slower than the spoken word. It is slower still when speech and sign are used simultaneously. When this occurs, the rate of both speech and sign are slower. Unless the person is a very proficient signer, confusion in signs may often occur. Professor Power estimates that Signed English is 20 per cent slower than the spoken word.

133 According to Dr Komesaroff, Signed English has some twenty-five hundred signs in its vocabulary. Given that the English vocabulary of an ordinary person is some 20,000 words, there are many English words for which Signed English does not have signs. These must be fingerspelt, letter by letter. Signed English also often uses the same sign for a number of different English words with similar although not identical meanings. It often uses the same sign for all uses of an English word which, although the word may remain the same, has different meanings when used in different contexts. For these reasons, in some but not all Australian deaf facilities, and in many overseas such as in America, but not in the United Kingdom, Signed English is no longer used.

134 Sign-Supported English, the method of communication used in Dylan's time at Pearcedale, follows English grammar and word order but uses Auslan signs and where these do not exist, uses Signed English or fingerspelling. It is not a language itself but is a method of reproducing English. It is slower than Signed English because it involves considerable amount of fingerspelling, in particular for certain prepositions and verb endings. It is potentially confusing for a child whose first language is Auslan because it uses Auslan signs in an order and structure wholly different from Auslan. It is used in educational settings but not in other settings such as social settings. It may be difficult to understand for a child who is Auslan-using and who has no earlier knowledge of English grammatical structures. According to Dr Komesaroff, SSE is approximately half as slow as Auslan. As I have said, on these matters I accept her evidence.

135 Auslan, because it has its own grammar and structure and because one sign can be used to convey a concept which may equate to many English words, is capable of conveying the same information as fast as the spoken word. Of course, as with all the signing systems, the speed will depend on the proficiency of the signer. Dr Komesaroff's evidence, which I accept, is that the Auslan dictionary currently contains some 5660 signs and that new signs are continually being added to the language. On the evidence Auslan has begun to be used in some educational settings in Australia, beginning in the 1990s. In other countries the equivalent native sign languages are used in both universities and as languages for school instruction. Examples are the US and Sweden.

136 The literature attached to the various expert witness statements indicates that researchers accept that Auslan is an effective language of educational instruction but there is still continuing research into the teaching strategies that will be the most effective in an Auslan setting.

137 There is academic debate about whether Auslan alone is the most effective method of teaching English language and literacy. Part of that debate turns on whether the theory called the linguistic interdependence theory applies. Is proficiency in a native or first language like Auslan something which can help a child gain proficiency in a second language like English, or does the fact that the native sign language does not have a written or spoken form mean that skills in that language are less transferable to assist the learning of the second language?

138 All the experts agreed that learning literacy has been a problem for children, hearing as well as hearing-impaired and that learning English literacy is a particular problem for hearing-impaired children. Dr Komesaroff and Professors Branson and Power agreed that Auslan should have a central role to play as a language of educational instruction. They differed about whether SSE and other methods should also have a role to play, particularly in the teaching of English literacy. Professor Power considered that these methods should. Dr Komesaroff and Professor Branson consider that Auslan was the most effective method of instruction.

139 The experts agreed that there was no body of research as to the effectiveness or otherwise of SSE as a method of educational communication. Professor Branson and Dr Komesaroff considered that there was a substantial body of research showing Auslan as the most effective method of communication for this purpose, but their views were disputed by Professor Power. It is, in my view, clear from the witness statements of Professor Branson and Dr Komesaroff that their views as to the effectiveness of Auslan are based more on anecdotal research and their own experience rather than the existence of a large and long-term body of research and literature. Much in the literature speaks of experiments and trials rather than being research over a very long period.

140 Dr Lawson and Professor Power took the view that SSE was, in an educational setting, within the accepted limits of the range of educational communication that might be used and also within the reasonable limits of current educational opinion. Much, although not all, of their experience in relation to particular educational settings related to Queensland. In Victoria, as the table in Ms Shone's evidence shows, a substantial number of deaf facilities use Auslan, sometimes in combination with other methods of communication.

141 For reasons I have given earlier I do not deal in detail with the experts' evidence concerning the relative merits of Auslan or SSE and the results in relation to educational outcomes. I have made findings on this matter which make this consideration unnecessary.

[45]

142 It is common ground that the State is an educational authority and that Pearcedale is an educational institution within the meaning of the Equal Opportunity Act. It is common ground that Dylan has an impairment within the meaning of s4 of that Act. That impairment is profound deafness. It is common ground that a part or characteristic of that impairment is inability to communicate through listening or speech. It is common ground that it is a part or characteristic of that impairment that Dylan cannot be communicated with or communicate by the spoken word and that, putting to one side written and visual communication such as posters and so on, he needs some non-written speech equivalent to communicate.

143 I do not accept that Auslan is a part or characteristic of his impairment. The evidence is that Auslan is the language of his deaf parents and was the language of his home. This in my view does not make it a part or characteristic of his impairment. I have found that in 2000, 2002 and 2003, again putting aside the written and visual forms of communication I have mentioned, when signing communication was used for Dylan's instruction in the classroom it was SSE with the supplements that I have earlier mentioned. I have found that in Semester 2 of 2003 when Dylan was in Grade 6, for some of the time the method of non-written communication with him was fingerspelling only. I have found that Dylan understood considerably less than 100 per cent of these forms of communication, that they were much slower than speech and that this meant that Dylan's opportunities for class discussion and interaction with his class teachers were limited and his writing time in class shortened because of the time taken to communicate to him. I have found that the spoken word was the most effective method of communication for educational instruction of hearing children in his class in terms of how much they understood of that method of communication. Of course there will always be times when a particular concept or word is not understood. I have found that this particular method is faster than what was used with Dylan.

144 Was Dylan's impairment a substantial basis for his treatment? I am satisfied that it was. The reason for Pearcedale choosing these methods of communication was that Dylan was profoundly deaf and could not communicate or be communicated with by the spoken word.

145 Was the treatment less favourable than Pearcedale's treatment of those without that impairment in similar circumstances? In my view the circumstances for comparison are the use of an effective method of communication for classroom instruction. The comparator is the hearing children in Dylan's class. The fact that different communication was used for Dylan than for the hearing children does not in my view, prevent the comparison being made. It does not make the circumstances not the same or not similar.

146 I am satisfied that Pearcedale treated Dylan less favourably than the hearing children in his class by using with him a less effective method of non- written communication than the spoken word used for the hearing children. I have already explained how it was less effective. By doing this, Pearcedale limited Dylan's participation in and opportunities to participate in the classroom in these ways. His opportunities for discussion, question- and-answer with the teacher were more limited and he had less time to complete written work than did the hearing children in his class. The hearing children with the spoken word had these opportunities.

147 This limiting of participation constitutes in my view the limiting of access to a benefit provided by the State or the subjecting of Dylan to a detriment. The State has therefore breached s37(2) of the Equal Opportunity Act.

148 In respect of the other matters claimed by the complainant I am not satisfied that the State has directly discriminated against Dylan in breach of the Equal Opportunity Act. I am not satisfied that the State limited Dylan's access to a benefit of education being full access to the curriculum at Pearcedale. As well as curriculum instruction by the methods used in class, Dylan had additional support which the hearing children did not. He had assistance from the Auslan assistant and the teacher of the deaf and in the deaf facility.

149 I am not satisfied that, taking into account these additional supports, it is possible to compare Dylan with the hearing children in this respect. If it is, I am not satisfied that he had less access to the curriculum than the hearing children. I am not satisfied therefore that the State limited his access to any benefit in this respect.

150 I am not satisfied that the State limited or affected Dylan's educational outcomes because it provided him with a less effective method of instructional communication than that provided to his hearing peers. I have found that not all of Dylan's outcomes were inappropriate to his age and intelligence or worse than similar hearing peers. I have found that although compared to his hearing peers Dylan's educational outcome has declined in certain areas, that decline was due to his absence and its consequences and not due to the method of communication used.

151 I do not accept the complainant's submission that I should find Dylan was subjected to a detriment or denied a benefit in education because he was taught in SSE which was not a recognised language while hearing children were taught in spoken English which is a recognised language. The truth is that both Dylan and the hearing children were taught in a recognised language - English- Dylan by SSE and the hearing children by the spoken word.

152 To the extent that the complainant claims that because of the method of communication used for Dylan compared with his hearing peers, he did not reach his educational potential, I have found for similar reasons to those related to educational outcomes that the State did not directly discriminate against Dylan.

153 The particulars the complaint claimed that the State failed to provide Dylan with adequate language development. The claim is not in my view sufficiently clear or sufficiently particularised and I make no findings concerning it.

154 Before leaving this subject I should make it clear that the question here is not, what is the best or most effective method of educating a profoundly deaf signing child? It is, was Dylan, on the basis of his impairment, treated less favourably than his hearing peers in respect of the effectiveness of the method of classroom instruction used? The question is not, as it is in indirect discrimination, was the treatment reasonable or unreasonable?

155 In determining whether there is direct discrimination I have not (as the State seemed to suggest I ought to do) taken into account whether Dylan or his parents objected to his treatment. It is what the State has done that is relevant, not whether Dylan or his parents considered the treatment as less favourable. Even if this lack of complaint were relevant to the State's awareness of whether or not Dylan's treatment was less favourable or to the State's motive for doing what it did, this awareness and this motive are irrelevant for direct discrimination purposes under ss8(2) and 10 of the Equal Opportunity Act.

[48]

156 As the authorities indicate, the requirement, condition or practice must be distilled from the evidence. It must be real, not artificially constructed. It cannot in my view and as counsel for the complainant at one time seemed to suggest, be arrived at by identifying the remedy sought and then tailoring the requirement or condition to fit that remedy. Many of the cases have been concerned with whether a requirement or condition is part of a term of a service itself. Sinnappan and Waters are two of these.

157 This case concerns a different provision, s37. Under that section, what is prohibited (relevantly to this case) is discrimination by denying or limiting access to a benefit provided by the education authority or subjecting the student to a detriment. I accept that educational outcomes, access to the curriculum and participation in the classroom are benefits provided by the respondent. In my view a disadvantage suffered in the medium of communication in which classroom instruction is provided and the failure or inaccessibility of participation in class is also capable of being characterised as a detriment[5].

158 The complainant's claim as clarified in closing submissions is that the State imposed on Dylan a requirement or condition that he be educated without a full-time Auslan interpreter. As the authorities point out, a distinguishing feature of indirect discrimination is that it appears facially neutral but has a disparate impact on the group with the particular attribute. This is clear from Waters v Public Transport Corporation and Amery v State of New South Wales[6] . Here,, with one exception the method of instructional communication adopted in the classroom for Dylan and his hearing peers were different. The hearing peers were taught by the spoken word. Dylan was taught by SSE and on occasion, fingerspelling. There is no single requirement or condition imposed on Dylan and his hearing peers. The exception is those times in the classroom when I have found that there was no teacher of the deaf or interpreter to sign to Dylan. In these cases, putting aside written and the other visual communications like posters and diagrams, there is only the spoken word as the method of instruction.

159 Dylan's evidence was that some of his hearing peers who had learned Auslan tried to help him, but in my view what we are considering here is communication from staff, not communication from other children. At these times, a requirement was placed on Dylan and his hearing peers in the classroom that instruction occur in the spoken word, not only without an Auslan interpreter, but without any sign interpreter for Dylan. This requirement or condition applied in each of Mr Tonks' maths classes which Dylan attended in Grade 5. It also applied to the first two weeks of Term 3 of Grade 6 and for another day per week for the rest of Term 3. From this must be subtracted the one to two hours a day when I have accepted that Ms Kerby helped Dylan in his class. Of course, it only applied on the days when Dylan attended school.

160 Could Dylan comply with this requirement or condition? In Clarke and Sinnappan it is made clear that compliance must be looked at in a meaningful way. The effect of these cases when applied to his case is that if Dylan was at a serious disadvantage with respect to compliance or could not comply in a similar way to his hearing peers or could not meaningfully comply with the requirement or condition then he will be taken not to be able to comply with the requirement or condition. I find this to be the case here.

161 Dylan could understand the visual forms such as writing but he was deprived of the opportunity to understand what was being communicated by the spoken word. He could not do this due to his profound deafness. Due to his impairment he could not communicate or be communicated with by the spoken word. He was therefore deprived the opportunity for immediate interactive discussion or question-and-answer with the teacher or between the teacher and the peers in his class.

162 Could a higher proportion of Dylan's hearing peers comply with this condition or requirement? I find that they could. As I have found, although there may have been particular words or concepts they did not understand, they understood the medium of speech and could access instruction which came via that medium.

163 Was the requirement or condition reasonable? As I have said, this involves the balancing of the effect of the requirement or condition on Dylan against the reasons advanced by the State. I also bear in mind the matters listed in s9(2) and all the relevant circumstances.

164 The consequences of this requirement or condition imposed on Dylan were very serious. It meant that his participation in classroom instruction, although not totally denied, was severely limited because it was restricted to written and visual communications only. He was denied immediate interaction and discussion between teacher and his hearing peers. However, for the reasons I have earlier given I am not prepared to find that there was any consequence concerning access to the curriculum or educational outcomes.

165 The reasons advanced by the State in favour of this requirement or condition relate more to the use of SSE than to the absence of any interpreter in the class. Insofar as these reasons can be gleaned from the evidence they are as follows.

166 First, Dylan's move to Mr Tonks' maths group, where there was no sign teacher or interpreter who could sign, was suggested by the school and agreed to by Dylan's parents as an appropriate placement for him given his academic ability and the desirability of having him in a group with others of equal proficiency, despite the fact that he would not have the benefit of a teacher of the deaf.

167 Second, Dylan was given additional support in the deaf facility to clarify and reinforce what was taught in the Grade 5 and 6 classes.

168 Third, while the situation in Terms 3 and 4 of Grade 6 was not ideal, the school did all it could to make up for the unexpected absence of the teacher of the deaf.

169 Fourth, if the alternative was one-to-one Auslan interpreting, this alternative, while it might suit Dylan and the other Auslan-using student in his Grade 5 and 6 classes, would not have catered for the other hearing- impaired children with their various other methods of communication.

170 Fifth, the school had attempted to hire an Auslan interpreter and this was unsuccessful. The interpreter would have been funded through the school's own budget.

171 On balance I am satisfied that this requirement or condition was unreasonable. As far as the reasons advanced in favour of it on the State's behalf are concerned, I am not prepared to accept that the placement of a profoundly deaf child who cannot access the spoken word in a class where there is only instruction by the spoken word and there is no teacher of the deaf or interpreter, is a rational or logical decision. This is so even if it was felt that the child, as far as the maths class was concerned, was better suited academically to the class. Teachers are the qualified education providers who must be in the best position and in a better position than parents to understand the breadth of a child's needs and they cannot simply rely on parents' agreement to justify an inappropriate educational choice.

172 I am not prepared to accept that in Terms 3 and 4 of Grade 6 Ms Kerby took all available avenues reasonably open to her to try to find an interpreter or teacher of the deaf to cover the days when there was no one who could sign to Dylan in his class. Ms Kerby did not, for example, approach the central Education Department asking for some appointment as a matter of extreme urgency. It seems that Ms Kerby approached only one of a number of organisations which could provide interpreters. There is also the possibility which was never raised in Ms Kerby's evidence of reorganising timetables in a way that might have provided further assistance to Dylan.

173 While the additional help given in the deaf facility has helped Dylan to access the curriculum fully, this is not a substitute for classroom participation. Alternatives might have been not only an Auslan interpreter, but another teacher of the deaf.

174 After taking all the circumstances into account I am satisfied that the consequences to the complainant outweigh the reasons advanced by the State. Accordingly the requirement was unreasonable.

175 Before leaving this subject I should say that both parties referred to the Federal Court cases of Catholic Education Office v Clarke and Hurst and Devlin v Education Queensland[7]. They also referred to Zygorodimos v State of Victoria, a case before VCAT[8]. I have found all these cases helpful from the point of view of analysis but none are directly in point.

176 In Clarke a school made the enrolment of a profoundly deaf Auslan-using child conditional on the acceptance of a model of educational support which excluded Auslan. The educational support model included note-taking and occasional sign. The Federal Court, upheld on appeal by the Full Court, found that Catholic Education Queensland had indirectly discriminated against the child under the Disability Discrimination Act 1992 (Cth) by imposing a requirement or condition that he receive or participate in classroom instruction without an interpreter.

177 In Hurst and Devlin, a school adopted a policy of using total communication, primarily it seems in Signed English, excluding Auslan, and did not individually assess the two children concerned to work out whether this would suit their educational needs. The Full Court found that the school indirectly discriminated against one of the children by imposing a requirement or condition that the child be educated in English without an Auslan teacher or Auslan interpreter.

178 In Zygorodimos a profoundly deaf child who could both use his voice and sign in Auslan but who preferred communication by voice in a school in which Auslan was the method of classroom instruction was given individualised tuition, partly in voice and partly in Auslan. VCAT found that no direct or indirect discrimination had occurred.

179 These cases turned on their own circumstances as does this.

180 I should stress that, although some of the experts have given evidence before me and also in the Federal Court case of Hurst and Devlin, I have regarded the evidence of those who have given evidence in both somewhat differently from the way in which the Court in the Hurst case regarded some of the evidence. The evidence of course has been substantially different in Hurst's case and in this. I have considered all the expert evidence before me impressive and helpful to the Tribunal. In particular, I do not consider the strong views about the value of Auslan which are held by some of the experts have detracted from the objectivity or from the weight of their evidence.

181 Finally I should say that I endorse the view expressed by the Court in Hurst that cases like Hurst (and I would add, this one) are not the appropriate forum to determine what ought, from an academic standpoint, be the best method of educating deaf children or what is the best educational policy to adopt. These cases concern prohibited discrimination in the context of a profoundly deaf signing child. They are determined within the narrow confines of the Disability Discrimination Act in the case of the Federal Court cases and of the Equal Opportunity Act in this case.

Beasley v Department of Education and Training

At a glance

Court

Decision date

Source

Judgment (52 paragraphs)

Beasley v Department of Education and Training (Anti Discrimination) [2006] VCAT 187 (17 February 2006)

Parties