Catholic Education Office v Clarke [2004] FCAFC 197 | Case summary

Federal Court of Australia (Full Court)|2004-08-06|Before: Stone JJ, Tamberlin J

TAMBERLIN J: 1 I agree with the reasons and conclusions of Sackville and Stone JJ. I add the following in relation to the characterisation of the condition or special requirement that the second appellant ("the College") imposed upon the enrolment of the respondent ("Jacob"). 2 Prima facie the letter offering enrolment of 16 August 1999 contains the conditions on which Jacob was to be permitted to receive education from the College. I use the expression "prima facie" because the findings of the primary judge more closely define the basis on which the College was prepared to admit Jacob. 3 This letter sets out the "understanding" on which Jacob would be offered a place in the College in Year 7 for 2000. It required a positive and clear decision by the parents to accept and support the model of learning support offered by the College as set out in the attachment. The letter stated that the efficacy of the College's learning support centre and overall curriculum was constantly being monitored, and indicated that this would continue throughout the years ahead. It stated that formal reviews on behalf of students with special needs would be conducted according to College and Catholic Education Office Policy and Procedures. 4 The model of support, in terms, does not require the provision of signing, or "Auslan", support. It provides in paragraph 3 that there will be: "Teacher assistants trained in notetaking for students who will assist the student in the class room to access the class information where possible." (Emphasis added.) 5 This is not a commitment but rather a possibility, and is restricted to possible notetaking assistance. 6 That letter also refers to "Other possible supports". These include in paragraph 12: "Use of signing support - if a staff member (teaching/other support staff) were to have these skills and be in a position to input into the learning support program." (Emphasis added.) 7 These indications of possible assistance do not amount to a commitment to provide signing assistance. Leaving aside, for the moment, the evidence and findings of the primary judge, the effect of the letter and the attached model of support is that Jacob would be admitted on the condition that there was no commitment by the school to provide Auslan or signing support. 8 However, after reviewing the evidence, his Honour, the primary judge, found that there was scant prospect of the provision of any classroom Auslan support for Jacob and he expressed the firm view that Auslan support very probably would not have been provided for Jacob. The consequence of these findings is embodied in his Honour's conclusion that the effect of the requirement or condition was in reality to oblige Jacob to enter the College without any assurance that the College would actively encourage the use of an Auslan interpreter for the subjects that are most demanding for him when taught in spoken English. His Honour also found that the College's view that Jacob should no longer depend on an interpreter was on the evidence a wrong one, and that Jacob could not simply forthwith cease such dependence. His Honour considered that the College was seriously unwilling to try to accommodate Jacob's parents' position on the necessity of signing support and to welcome the challenge of incorporating signing interpreters, and that this stood in marked contrast with attitudes expressed by the primary school which Jacob had been attending and which was also run by the Catholic Education Office. The position therefore was that although Jacob would receive some support he would not receive the Auslan support essential to his needs. 9 It is accepted by the appellants that the educational services offered by the College included the education of disabled pupils, so that it cannot be said that the services the College offered were limited to education only for persons who did not need Auslan or signing systems. The College's service included the education of a profoundly deaf pupil such as Jacob. 10 In my view, it is not correct, as counsel for the appellants submits, to characterise the admission on the basis that the terms and conditions of admission operated to confer an additional benefit on Jacob over and above that which other students were offered by the College (which other students did not need) and that accordingly, the provision of learning support amounted to preferential treatment of Jacob, rather than being discriminatory. 11 The difficulty with this characterisation is that Jacob would not be educated at the College unless he was prepared to forgo signing or Auslan assistance. If he went to the College then his parents were obliged to adhere to the model of support which, in the light of the evidence and on his Honour's findings, did not involve any commitment to such assistance. It is true that the model support program might possibly provide some benefit to a profoundly deaf pupil, but that is not the issue. To approach the question in this way concentrates on additional benefits being given to those who do not need them and detracts from the question posed by the language of the Disability Discrimination Act 1992 (Cth) ("the DD Act") which is whether Jacob, as a profoundly deaf person, is required to comply with a condition with which non-deaf persons are able to comply. In other words, this approach examines the requirement from its impact on a non-disabled person and not from the effect of the requirement on the pupil under a disability. This is the wrong approach. If it is a condition of admission that Auslan assistance will not be provided, then non-deaf students can receive a full education while Jacob, because of his disability, is not able to receive the full benefit of this education. He cannot comply with this requirement if he is to obtain the educational benefits offered by the College. 12 The problem of characterisation was adverted to by the High Court in Waters v Public Transport Corporation (1991) 173 CLR 349, which concerned a new ticketing system for public transport, and the consequent removal of conductors from some trams. The new system required tickets to be purchased from retail shops and to be validated by the traveller making a scratch mark in designated places to indicate the journey being undertaken. The complainant in that case suffered from a disability that made it difficult, if not impossible, to use the new scratch tickets. Some of the complainants, by reason of their disabilities, could not travel on trams which did not have conductors. In the judgment of Mason CJ and Gaudron J at 361, their Honours referred to the need to identify with precision the services to be provided. Their Honours said: "It was open to the Board to identify the service provided by the Corporation with more or less particularity. For example, in the context of the complaints with respect to the removal of conductors, the Board might have identified the service as the provision of transport by trams, some of which had conductors and some of which did not. However, it was for the Board to identify the service, and the complaints and the evidence permitted it to proceed on the basis that it did. 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. And a condition of that nature falls within the ordinary conception of a "requirement or condition". … Indeed, it is apparent that it was within the intended operation of s 17(5)(a) for, when stated in this way, what is revealed is the less favourable treatment of those who need the assistance of conductors as against those who do not. Of course that does not answer the question whether that is less favourable treatment on the ground of status." (Emphasis added.) 13 This observation indicates the importance of the proper characterisation of the requirement from the perspective of the disabled person. Once the nature and extent of the service is clarified, then the impact of the condition can be properly analysed as required by the DD Act. 14 In the present case, it was open to his Honour to find that the condition required Jacob to participate in and receive classroom instruction without the assistance of an interpreter. Not only was this approach open to his Honour but, in my view, it was the correct characterisation of the requirement in the light of his Honour's findings. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

INTRODUCTION 15 The principal question in this appeal is whether the primary Judge erred in upholding a complaint made by a profoundly deaf student ('Jacob') that the appellants discriminated against him on the ground of his disability. Jacob's complaint related to the terms or conditions on which the Catholic Education Office ('CEO') was prepared to admit him as a high school student to Mackillop Catholic College ('College') in the Australian Capital Territory, for the 2000 school year. The CEO and the College are the appellants. The respondent to the appeal is Jacob, who instituted the proceedings by his father as his next friend. 16 The CEO did not refuse Jacob's application for admission outright. It insisted, however, on Jacob accepting a 'model of learning support' which, on the findings of the primary Judge, did not include the provision of Australian Sign Language interpreting services (better known as 'Auslan'). Instead, on the primary Judge's findings, the CEO required Jacob to rely on the use of note-taking as the primary communication tool to support him in the classroom. 17 The primary Judge found that the appellants had discriminated against Jacob on the ground of his disability, contrary to s 22(1)(b) of the Disability Discrimination Act 1992 (Cth) ('DD Act'): Clarke v Catholic Education Office (2003) 202 ALR 340. His Honour awarded Jacob damages of $20,000 pursuant to s 46PO(4)(d) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ('HREOC Act'). His Honour also awarded $6,000 by way of interest. 18 The appellants challenge the finding of unlawful discrimination. They seek orders setting aside the orders made by the primary Judge and dismissing the proceedings. The respondent filed a cross-appeal contending that the primary Judge had erred in not making a higher award of damages. The cross-appeal was, however, abandoned at the hearing of the appeal. 19 The Human Rights and Equal Opportunity Commission ('HREOC') sought leave to intervene in the appeal, pursuant to s 67(1)(l) of the DD Act and s 11(1)(o) of the HREOC Act (see, too, Federal Court Rules, O 52 r 14AA). The Court granted HREOC leave to intervene. HREOC filed detailed written submissions which were briefly supplemented in oral argument by Ms Eastman, who appeared on HREOC's behalf.

LEGISLATION 20 The background to the DD Act is set out in Purvis v New South Wales (Department of Education and Training) (2003) 202 ALR 133, at 144-146 [43]-[44], per McHugh and Kirby JJ; at 176 [185]-[187], per Gummow, Hayne and Heydon JJ. It is not necessary to repeat that background here. 21 The objects of the DD Act are set out in s 3 as follows: 'The objects of this Act are: (a) to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of: (i) work, accommodation, education, access to premises, clubs and sport; and (ii) the provision of goods, facilities, services and land; and (iii) existing laws; and (iv) the administration of Commonwealth laws and programs; and (b) to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and (c) to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.' 22 To give effect to these objectives, the DD Act makes it unlawful to discriminate against a person on the ground of the person's disability in specified areas, including employment or work (ss 15-21); education (s 22); access to premises (s 23); the provision of goods, services or facilities (s 24); and accommodation (s 25). The term 'disability' is defined in s 4(1) of the DD Act. 23 Section 22 of the DD Act relevantly provides as follows: '(1) It is unlawful for an educational authority to discriminate against a person on the ground of the person's disability or a disability of any of the other person's associates: (a) … (b) in the terms or conditions on which it is prepared to admit the person as a student. (2) … (3) … (4) This section does not render it unlawful to refuse or fail to accept a person's application for admission as a student at an educational institution where the person, if admitted as a student by the educational authority, would require services or facilities that are not required by students who do not have a disability and the provision of which would impose unjustifiable hardship on the educational authority.' 24 Section 11 provides that, for the purposes of the DD Act, in determining what constitutes 'unjustifiable hardship' all relevant circumstances of the particular case are to be taken into account, including: '(a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned; and (b) the effect of the disability of a person concerned; and (c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship; and (d) in the case of the provision of services, or the making available of facilities - an action plan given to the Commission under section 64.' 25 Section 24(1) of the DD Act provides that it is unlawful for a person who provides goods or services, or makes facilities available, to discriminate against another person on the ground of that person's disability: '(a) …; or (b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or (c) …' 26 Section 12(8) of the DD Act provides that the 'limited application provisions' (which, by s 12(1), include ss 22 and 24) have effect in relation to discrimination against a person to the extent that the provisions: '(a) …; (b) give effect to the Covenant on Civil and Political Rights; or (c) give effect to the International Covenant on Economic, Social and Cultural Rights; or (d) relate to matters external to Australia; or (e) relate to matters of international concern.' 27 Section 5 of the DD Act deals with what is normally known as 'direct discrimination'. It provides as follows: '(1) For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability. (2) For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.' 28 Jacob's case at trial and on the appeal rested on s 6 of the DD Act, which deals with 'indirect disability discrimination'. Section 6 states as follows: 'For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition: (a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and (b) which is not reasonable having regard to the circumstances of the case; and (c) with which the aggrieved person does not or is not able to comply.' 29 Section 45 of the DD Act deals with 'special measures'. It provides as follows: 'This Part does not render it unlawful to do an act that is reasonably intended to: (a) ensure that persons who have a disability have equal opportunities with other persons in circumstances in relation to which a provision is made by this Act; or (b) afford persons who have a disability or a particular disability, goods or access to facilities, services or opportunities to meet their special needs in relation to: (i) …education…; and (ii) the provision of…services…; … (c) afford persons who have a disability or a particular disability, grants, benefits or programs, whether direct or indirect, to meet their special needs in relation to: (i) …education…; or (ii) the provision of…services…'

THE FACTS AS FOUND 30 The following account is drawn largely from the findings made by the primary Judge. Some of these findings were challenged by the appellants. We shall return to the grounds of challenge later in this judgment. 31 Jacob was born on 7 August 1987 and was therefore aged 12 at the commencement of the 2000 school year. From 1992 to 1999 he attended a Catholic primary school operated by the CEO. During that time, Jacob had the assistance of a teacher's aide fluent in Auslan and of volunteers, including his parents, who interpreted the spoken words of the teachers and his classmates into Auslan. Funding was also provided for his teacher in Years 4 and 5 to undertake training courses in Auslan. 32 Auslan is not in any sense the translation of English by manual signals into hand and finger movements. Rather, it is a means of directly expressing perceptions, facts and ideas through the use of hands and body gestures. It is a language in its own right, although not a spoken one. Auslan has its own syntax, grammar, lexicon and devices to represent words. Its proponents claim that it is a superior means of communications by and with deaf people than alternatives. 33 In addition to Auslan, Jacob had also been exposed to other forms of assistance. These included the use of hearing aids (with only limited success), 'signed English', finger spelling of spoken words, use of gestures, lip reading and note-taking. The primary Judge found that Jacob's parents ('the Clarkes') had worked tirelessly and intelligently to assist Jacob to communicate effectively and to have access to an education. His Honour described Jacob as a 'bright and intelligent young man'. 34 The Clarkes are devout Catholics. In 1999, they were keen for Jacob to continue his education at a Catholic high school where most of his fellow students from primary school would attend. Jacob's primary school was one of the 'feeder schools' for the College. The Clarkes hoped that since a number of Jacob's school friends could use some Auslan and were familiar with assisting Jacob in the classroom, he would be helped in his transition from primary to high school. 35 In early 1999, the Clarkes made inquiries about enrolling Jacob at the College. On 16 March 1999, the Clarkes had a preliminary meeting with Sister Noelene Quinane, the Principal of the College and Ms Mahoney, the Special Education Coordinator at the College. 36 On 3 May 1999, the Clarkes completed an enrolment application for the 2000 school year on behalf of Jacob. In response to a question on the form, they stated that Jacob's main language at home was 'Sign Language'. In response to another question as to other languages spoken by Jacob, the answer given was 'English'. The form indicated that Jacob had 'profound bilateral sensori-neural hearing loss'. 37 The appellants arranged a series of enrolment meetings designed to effect Jacob's enrolment and to ensure a smooth transition from primary to high school. The appellants wished to develop an appropriate model of learning support for Jacob, to which they hoped the Clarkes would agree. 38 The first meeting took place on 2 June 1999. Those present included the Clarkes (together with Jacob), Sister Quinane, Jacob's teacher's aide and Principal during primary school, Ms Mahoney, and two representatives from the CEO's Special Needs Education team. The topics addressed included the Clarkes' aspirations for Jacob's secondary schooling; Jacob's history at primary school and his educational achievements; and an outline of the 'current support model of inclusive classroom practices for students with Special Needs at [the College]'. 39 After the meeting, the appellants prepared a document entitled 'Meeting Summary and Major Understandings' (which seems to have been mistakenly dated 1 June 1999). This document included the following summary of understandings reached at the meeting: '3.4 There are provisions for support for Special Needs students at MacKillop - that is Special Needs Resource teachers, teacher assistants, a Learning Support Centre, IEPs [Individual Education Plans], CEO support and provision of Professional Development courses relevant to the needs of Special Needs students. Also, specific courses have been undertaken by staff that would help Jacob such as the Note Taker's Course for teacher assistants. 3.5 It was indicated at school/system level, that there was no philosophical opposition to the understandings regarding the varying range of supports that could be made available on behalf of Hearing Impaired students. 3.6 The school/system will not be providing signing interpreter services on behalf of Hearing Impaired students as the primary mode of support. … 4.2 [The Clarkes] understand that [the College] would make provision for Jacob in the context of all students and their needs, encouraging students to move towards being independent learners. Specific support would be offered as outlined in 3.4 and 3.6.' 40 Following circulation of this paper, Mr Clarke contacted a representative of the appellants and advised that, in his view, there were some inaccuracies in the meeting summary. Mr Clarke was invited to provide a written response setting out his and his wife's concerns. They did so in a document dated 30 June 1999. In that document, the Clarkes stated that para 3.5 of the meeting summary did not accurately reflect one of the most important points raised at the meeting. Mr Clarke said that he had specifically asked at the meeting whether the school had a philosophical objection to sign language support in the classroom. He said that Dr Walker, a member of the Special Needs Education team, had unequivocally answered 'No'. Mr Clarke requested that the meeting summary be amended to reflect the position that the school had no philosophical opposition to sign language support. 41 Mr Clarke also denied that the statement recorded in para 3.6 of the summary had been made during the meeting. In this connection, his Honour found that the text of para 3.6 was added to the draft Meeting Summary by a senior officer of the CEO who had not been present at the meeting. Finally, Mr Clarke said that par 4.2 should be deleted, as there had been no discussion at the meeting concerning the particular support to be provided for Jacob. 42 A further meeting took place between the Clarkes and representatives of the appellants on 20 July 1999. The aim of the meeting was to establish a clear understanding of the proposed model of support and to finalise arrangements for Jacob's enrolment. An amended model of support, concerning the particular assistance to be provided for Jacob, was presented at the meeting. It included the following: '2. Model of support at Mackillop: … 2.3 Teacher assistants trained in notetaking for students who will assist the student in the classroom to access the class information where possible. … Other possible supports: … 2.12 Use of signing support - if a staff member (teacher/other support staff) were to have these skills and be in a position to input the learning support program.' (Emphasis added.) 43 The record of the meeting shows that Mr Clarke asked Sister Quinane if she would accept Mrs Clarke as a signing support in classes for Jacob. Sister Quinane's response was that she did not feel comfortable with a mother regularly signing for a student in the secondary school, as she felt that this would inhibit the student's social growth. Sister Quinane also said that volunteers were a possibility, but that she also did not feel comfortable with the volunteer being someone associated with Jacob from his primary school. 44 Mr Clarke said that Jacob would not survive in a classroom without signing support, since his primary language was Auslan and he struggled to understand English. The Clarkes offered to arrange for volunteer support or to provide a grant of $15,000 for a teaching aide who could provide signing support if the College could not obtain a grant from other sources. According to Mr Clarke (whose evidence on this point does not appear to have been disputed), Sister Quinane expressed concern that a student-specific grant might set an unacceptable precedent. 45 Sister Quinane invited the Clarkes to submit a statement setting out the details of support they believed Jacob would need at the College. 46 On 23 July 1999, the Clarkes responded to this invitation with a detailed document which the primary Judge described as 'impressive'. From this document, the Clarkes explained their view that Jacob needed signing support so that he could develop his English language skills and be able to participate fully in the core subjects at school. The document included the following passage: 'The model of support offered by the School for special needs students is most comprehensive and we are grateful that the School has offered Jacob, prospectively, this level of support. There is, however, one key element of the model which is missing. Jacob's native language is Australian Sign Language (Auslan) and the model does not adequately recognise or cater for this. The primary communication conduit offered in the model is the provision of note taking support in the classroom (with due consideration to available resources). …[T]he provision of note taking support is useful but is not an effective primary communication conduit. English is Jacob's second language and to be effective in class he needs to have access to Auslan signing support. A further consideration…is that in his silent world, Jacob misses and will continue to miss the full range of conversation and communication exchange which occurs in the classroom (and elsewhere). While part-time Auslan signing support can only provide a part solution to this problem it is a substantially better option than note taking.' 47 The Clarkes confirmed that, in order to demonstrate their commitment, they were prepared to offer a grant to the school for the provision of part-time teacher's aide signing support for Jacob and other hearing impaired children. They also offered to:

help prepare any application for appropriate government grants;
arrange volunteers to provide part-time Auslan signing support for Jacob;
be available to attend excursions and camps as Jacob's interpreter; and
arrange Auslan classes for teachers at the school on a voluntary basis, taking advantage of an offer that had been made by a qualified teacher and certified Auslan interpreter. 48 On 28 July 1999, a further meeting took place between the parties. At this meeting, Sister Quinane said that signing support would be a threat to the support model offered and would tend to undermine it. On 6 August 1999, the Clarkes sent a letter to Sister Quinane stating that, while their views had remained unchanged from those expounded at the meetings, they considered that they had little choice but to accept the model of that support offered by the College. They requested that the model be continuously monitored and formally reviewed during the first term. 49 On 16 August 1999, Sister Quinane sent an offer of enrolment to the Clarkes, together with the proposed model of learning support. The covering letter stated as follows: 'We are pleased to offer you a place in Mackillop Catholic College for Jacob in Year 7, 2000. This offer is made on the understanding that: · A positive and clear decision has been made by you to accept and support the model of Learning Support offered by our College as discussed and outlined in our earlier meetings (see attachment). … We look forward to welcoming Jacob to Mackillop in the new year. The efficacy of our Learning Support Centre and overall curriculum is constantly being monitored and we indicate that this will continue throughout the years ahead. Formal reviews on behalf of students with Special Needs will be conducted as per school and CEO policy and procedures.' 50 The attached model of support was as follows: 'Model of Support at Mackillop:

Middle schooling practices with limited teacher and room changes. 2. A special learning centre staffed by Special Needs teachers and teacher assistants. 3. Teacher assistants trained in notetaking for students who will assist the student in the classroom to access the class information where possible. 4. Opportunities for staff to participate in the Professional Development days addressing the needs of students with a hearing impairment. 5. Allocated Commonwealth Special Education and Literacy funding to support all students with Special Needs at Mackillop. This additional funding is not guaranteed as ongoing funding (the system applies on an annual basis). Staff employed through these programs are appointed by the school. 6. The preparation of Individual Educational Plans (IEPS) for all Table 1 students. The IEP is prepared by a support team in consultation with parents. 7. CEO support by the Special Needs Education Services Team (Meg [van Beurden] and Lyn [Walker]). 8. Use of capital equipment already purchased to support the learning program (eg. the computer). Other possible supports 9. Use of the radio frequency hearing aid where possible in the classroom, assemblies and any meetings. 10. A teacher, T.A. or older student to takenotes for Jacob in assemblies. 11. The captioned version of videos used in lessons if available. 12. Use of signing support - if a staff member (teacher/other support staff) were to have these skills and be in a position to input into the learning support program. 13. If possible, have some of Jacob's peers from St Francis of Assisi in his year 7 classes to support him with interpreting and relaying verbal messages (eg. over the intercom) i.e. using the "buddy system". 14. All homework, assignments etc to be given in written form (either by teacher, teacher assistant or "buddy system"). 15. Jacob carry a notebook in his pocket to write down his messages if he is not understood. 16. Family support for Jacob by constant use of the school diary. 17. Instructions for the direction of a lesson could be presented to Jacob at the commencement of the lesson.' (Emphasis added.) 51 On 24 August 1999, the Clarkes accepted the offer of enrolment on the following basis: 'We accept the enrolment offer subject to the model of support not being detrimental to Jacob's education. We re-affirm that our views of the model of support for Jacob remain unchanged from those expounded at our meetings and in our previous correspondence to you. We note that we have in the course of these dealings, endeavoured to negotiate change to the model of support, without success. We ask that as the model of support has not been deployed for [a] hearing impaired person, that its utility, effectiveness and efficacy be reviewed by the end of first term.' 52 Sister Quinane replied to the Clarkes on 14 September 1999, as follows: 'In providing a placement for Jacob next year I reiterate the key premise of this enrolment as stated in my "offer of enrolment" letter to you: This offer is made on the understanding that: · A positive and clear decision has been made by you to accept and support the model of Learning Support offered by our College as discussed and outlined in our earlier meetings. · Formal reviews on behalf of students with Special Needs will be conducted as per school and CEO policy and procedures. I assume your acceptance and support of the school's model of support for Jacob will continue.' 53 On 19 October 1999, a meeting took place between Dr Walker of the CEO and Ms Mahoney to discuss '[p]ractical transition plans to ensure Jacob's inclusion in the school community at Mackillop'. The minutes record that the following items (among others) were discussed: '. It will be planned how volunteer interpreters (possibly Auslan students) could be arranged to assist Jacob… . Jacob's form teacher would be carefully selected (possibly a teacher who actually knew Auslan) and PD would commence at the end of term 4, 1999 with this teacher.' 54 During November 1999, the appellants' employees attempted to observe Jacob in his primary school classroom. The Clarkes did not approve of this, apparently because the visits were made when Jacob had no signing support, and they requested that no further contact be made with the primary school. 55 On 1 December 1999, the Clarkes withdrew their acceptance of the offer of enrolment. In the letter, they said that they had taken into account that there was 'no flexibility or room for adaptation or enrichment of the model of support' that had been offered. 56 On 15 December 1999, Sister Quinane wrote acknowledging with regret the withdrawal of the enrolment application. She added that if the Clarkes wished to reconsider their decision, the College 'would continue to work with you to ensure an effective educational environment for Jacob as per our proposed model of support. If this reconsideration of enrolment is desirable to you, I welcome your future correspondence…' 57 On 26 November 2000, Mr Clarke lodged a written complaint with HREOC, alleging unlawful discrimination against Jacob on the grounds of his disability. The basis of the complaint was that the appellants had offered Jacob a place in the College conditional upon a model of support which had made no provision for Auslan assistance. A conciliation conference was held on 13 June 2001, but failed to settle the matter. On 15 June 2001, a delegate of the President of HREOC issued a notice of termination on the grounds that there was no reasonable prospect of the complaint being settled by conciliation: see s 46PH(1)(i) of the HREOC Act. 58 On 12 July 2001, proceedings were commenced in this Court pursuant to s 46PO of the HREOC Act. It was alleged on behalf of Jacob that the appellants had indirectly discriminated against him in respect of the terms and conditions upon which the College was prepared to admit him as a student (DD Act, s 22(1)(b)). A further allegation was made of indirect discrimination in respect of the terms and conditions upon which the appellants would provide their services to Jacob (DD Act, s 24(1)(b)).

THE PRIMARY JUDGMENT 59 There was no dispute before the primary Judge, or on the appeal, that :

Jacob had a 'disability' as defined in s 4 of the DD Act (at 348 [31]);
the CEO and the College were 'educational authorit[ies]' for the purposes of s 22(1) of the DD Act (at 348 [33]); and
the CEO's schools are and should be open for the reception and education of children with disabilities, including congenital profound deafness (at 351 [45]). Nor did the appellants contend, either at trial or on the appeal, that the admission of Jacob to the College would require services or facilities the provision of which would impose unjustifiable hardship on the educational authority: cf DD Act, s 22(4). 60 While the respondent relied on both ss 22(1)(b) and 24(1)(b) of the DD Act at trial, the case was primarily conducted on the basis of the former provision. On the appeal, Mr Basten QC, who appeared with Mr Poynder for the respondent, relied only on s 22(1)(b) of the DD Act. It is therefore not necessary to recount the references to s 24(1)(b) in the primary judgment. 61 The primary Judge noted that the respondent (the applicant at first instance) had defined the relevant terms and conditions of the model of support offered by the College as follows (at 350 [40]): '(a) Auslan signing support would not be provided as part of the Model of Support; and (b) at best, Auslan signing would be provided as an "other possible support", and subject to two preconditions, being that: (i) there be a staff member with signing skills; and (ii) any such skilled staff member be in a position to input (which I take to mean: make a significant input) into the learning support program.' 62 His Honour identified the issues in the case as follows (at 350 [41]): 'To establish that [the appellants] have indirectly discriminated against Jacob, [the respondent] must establish that: · the terms and conditions upon which enrolment was offered provided that Jacob comply with a "requirement or condition"; · with which a substantially higher proportion of persons without the disability comply or are able to comply; · with which Jacob does not, or is not able to, comply; and · which is not reasonable in the circumstances of the case.' 63 First, his Honour held that the CEO had required Jacob to comply with a 'requirement or condition' within s 6 of the DD Act, namely 'to participate in and receive classroom instruction without the assistance of an interpreter'. His Honour rejected the appellants' contention that Jacob had been offered a classroom education at a secondary school administered by the CEO, an intrinsic feature of which was that the education would be provided in English. On the appellants' argument, the CEO had not imposed any requirement or condition over and above the very service (classroom instruction in English) that was being offered to Jacob. His Honour considered, however, that a distinction should be drawn between the service provided by the College, namely education by classroom instruction, and an imposed requirement or condition, namely that Jacob participate in such instruction without the assistance of an Auslan interpreter (at 351-352 [45]). 64 Secondly, his Honour accepted that, in order to determine whether there had been discrimination for the purposes of s 6 of the DD Act, it was necessary to identify an 'appropriate base group' with which to compare the individual claiming discrimination. It was then necessary to decide whether a substantial proportion of the individuals in the base group were able to comply with the relevant requirement or condition. His Honour found that the relevant base group was either those students attending Year 7 at the College in 2000, or all students enrolling in classes at the College in that year. 65 The primary Judge rejected the appellants' argument that, since students without a disability would not have been provided with a model of support, the base group should be defined by reference to students with a similar disability to Jacob's. His Honour considered that the appellants' contention as to the appropriateness of the base group 'really involve[d] the re-assertion in another guise, of [their] proposed characterisation of the essential nature of the relevant service' (at 352 [48]). The appellants conceded at the trial that if the base group was as his Honour found, a substantial proportion of the base group was able to meet the requirement or condition (that is, to participate in and receive classroom instruction without an interpreter). 66 Thirdly, the primary Judge found that it was not realistic to say that Jacob could comply with the model of learning support offered to him (at 352 [49]). Had he been required to do so, he would have faced serious disadvantages that his hearing classmates would not. In substance, Jacob could not meaningfully 'participate' in classroom instruction without Auslan interpreting support. He therefore could not have meaningfully received classroom education at the College. 67 The primary Judge considered that the fourth question, that of reasonableness, was the most difficult to resolve. His Honour did not doubt the genuineness of the compassion shown by the appellants' employees, nor the reality of their intentions to make appropriate, caring and skilled responses to the needs of disabled pupils. If the appellants had breached the law, it was a consequence of mistakes made in good faith, rather than any systematic tolerance of discrimination against disabled people. Nonetheless, his Honour considered (at 355 [57]) that the 'road to infraction of discrimination law, as to other places to be avoided, may be paved with good intentions'. 68 The primary Judge identified the most important considerations relating to the question of reasonableness to be Jacob's actual mode of communication, given his disability; the steps put in place by the appellants for Jacob's transition from primary school to the College; and whether further or other steps might desirably and reasonably have been implemented (at 355 [58]). 69 The primary Judge found that there was no prospect of Jacob successfully communicating without assistance from Auslan. In particular, he could not communicate adequately for most educational purposes without that assistance. Other techniques, such as signed English, lip-reading and note-taking were simply not as effective or efficient to enable Jacob to communicate. 70 His Honour also found that (at 357 [67]): '…whatever the subjective intentions of various agents of the [appellants], which intentions may have differed in direction, emphasis or firmness, there was scant prospect of the [appellants] actually providing any classroom Auslan support for Jacob.' He noted that the appellants, without explanation, had failed to call a number of potential witnesses, including Sister Quinane and persons from the CEO and Jacob's primary school who might have been expected to have supported the appellants' case. His Honour said this about Sister Quinane's absence from the witness box (at 357 [69]): 'It is very surprising that Sr Quinane was not called. She should have been able to explain any in-school problems and to have dispelled suspicion that unwillingness to adapt underlay her apparent reluctance to make the necessary arrangements and give the necessary assurances to the Clarkes. She should have been able to show that, in truth, she embraced the notion of everyone doing their best to see that Jacob, at least for some time, received the Auslan interpreting support that he plainly needed. As to her absence from the witness box, I do draw the appropriate inferences against the [appellants]. That confirms my view that Auslan support very probably would not have been provided for Jacob.' 71 It was in this setting that the reasonableness of the relevant requirement or condition had to be judged. The primary Judge considered that the effect of the requirement or condition was to oblige Jacob to enter high school without the assurance that the College would actively encourage the use of an Auslan interpreter for the subjects he found most demanding when taught in spoken English. The requirement or condition would have been very damaging to Jacob's progress and well-being, having regard to the fact that he was a vulnerable and needy child. 72 In his Honour's view, two factors explained the imposition by the CEO of the requirement or condition (at 358 [72]). The first was the belief that Jacob would need to get through adult life without an Auslan interpreter if he wished to participate in the world of hearing people. The second was a reluctance to make the adaptations necessary to accommodate the flexible and unusual arrangements required to keep a supply of interpreting services available to Jacob. The reluctance to make the necessary adaptations was influenced by the need to have another adult in the classroom actively engaging in sign language; the possibility that there might be more than one adult so engaged; the need to address the ethical and legal difficulties associated with the presence of non-teacher interpreters, including volunteers, in the classroom; and by the practicalities of having to rely on Jacob's parents to organise much of the signing support. 73 His Honour considered that the view that Jacob should no longer depend upon an interpreter was wrong and unreasonable (at 358 [73]). Jacob was quite dependent on Auslan and it should have been obvious that to separate him from that language in the classroom would cause him stress, confusion and frustration. The primary Judge characterised the appellants' reluctance to adapt as 'both strange and unreasonable' (at 358 [79]). The evidence established that Jacob's primary school had coped admirably and there was no reason to think that high school teachers, pupils and administrators would adapt less well. Moreover, at best, Jacob was in for a trying time in his new school, given that many of his new fellow pupils would have had little experience with deaf students. Given Jacob's needs, the unwillingness to welcome Auslan interpretation for him was unreasonable. 74 The primary Judge considered that there was a reasonable alternative course available to the appellants. The alternative course was as follows (at 359 [75]): '. to recognise that, for at least some considerable time, the provision of Auslan interpreting services for Jacob was a practical necessity for his well-being; · to accept that the [appellants] should take every reasonable step, including welcoming the Clarkes' efforts, to find one or more Auslan interpreters before Jacob started in the high school and that every reasonable step should be taken to accommodate the use of volunteer interpreters found by the Clarkes; · to communicate these attitudes clearly to the Clarkes; and · to impose a requirement or condition that, if all reasonable efforts by the Clarkes and the [appellants] to provide Auslan interpreting assistance should fail, then the [appellants] might need to revert to providing only a note taker to help Jacob.' 75 The primary Judge acknowledged that there may have been difficulties in finding suitable Auslan interpreters. Nonetheless, the zeal of Jacob's parents and the evangelism for Auslan of many of its adherents meant that it was far from impossible to do so. The example of the primary school was at hand and this showed that a 'flexible, actively inclusionary approach to in-class Auslan interpreters' was reasonably possible and would have no ill-effects (at 359 [78]). Moreover, financial considerations did not play a major part in the equation. Government funds were available for a teacher's aide, although not for the higher rates which professional Auslan interpreters could command. The Clarkes were prepared to make a contribution for the 2000 year, and the CEO had its own 'general funds' which were available for note-taking assistance (at 359-360 [79]-[81]). 76 Accordingly, his Honour concluded that the respondent had made out his case that the appellants had discriminated against Jacob on the ground of his disability in the terms or conditions on which they were prepared to admit Jacob as a student at the College. His Honour acknowledged that the case did not have the connotations that the notion of discriminating against a disabled person has in ordinary language. But in his view the case was governed by 'precisely defined statutory language' (at 360 [82]).

THE APPELLANTS' CONTENTIONS 77 The amended notice of appeal identified no less than 34 grounds. Mr Spry, who appeared for the appellants, put at the forefront of his submissions the proposition that the DD Act does not impose an obligation to discriminate positively in favour of a disabled person. In the absence of any such obligation, so he argued, it could not have been unreasonable for the CEO to refuse to provide a model of support to Jacob which included Auslan. According to Mr Spry, the effect of the primary Judge's approach was to require the appellants to take positive measures in favour of Jacob and this was not what the DD Act was intended to achieve. The appellants also invoked s 45 of the DD Act, submitting that the circumstances of the case attracted the exemption. 78 The appellants challenged the primary Judge's finding that they had required Jacob to comply with a term or condition before being prepared to admit him as a student at the College. They contended that they had simply offered Jacob a benefit that was not available to other students. The service that was offered by the College, on this argument, was education conducted in the English language. This was so notwithstanding that the College was prepared to receive and educate students with disabilities, including those with congenital profound deafness. In any event, so the appellants submitted, it was inappropriate to identify a comparator group when the model of support was offered to only a single student. 79 The appellants submitted that, even if there were a term or condition to the effect that the College would not offer Jacob Auslan support, there was nothing to stop Jacob or his parents from obtaining the services that Jacob desired. The case was therefore different from Waters v Public Transport Corporation (1991) 173 CLR 349, where the removal of conductors from Melbourne's trams coinciding with the introduction of a system of 'scratch tickets', meant that disabled persons could not physically navigate the new ticketing system. 80 The appellants also challenged the primary Judge's findings on reasonableness. Mr Spry submitted that the finding that there was a shortage of trained Auslan interpreters vitiated his Honour's conclusion that the condition imposed by the CEO was not reasonable. He argued that the onus was on Jacob to demonstrate that Auslan interpreters were available and that he had failed to discharge that onus. In addition, Mr Spry attacked the primary Judge's finding that Jacob was dependent on Auslan. He submitted that the weight of evidence was against such a finding. 81 We should add that the notice of appeal contained no challenge to the primary Judge's finding that the CEO very probably would not have provided Auslan support for Jacob. Mr Spry sought to challenge the finding in his submissions in reply. However, we declined his application to amend the notice of appeal to permit such a challenge to be made.

THE RESPONDENT'S CONTENTIONS 82 The respondent submitted that it was open to the primary Judge to find that the offer of a place at the College was subject to a requirement or condition, for the purposes of s 6 of the DD Act, that Jacob receive an education without the assistance of an Auslan interpreter. Mr Basten acknowledged that distinguishing between the offer of education services and any requirement or condition upon which the offer is made can involve matters of judgment and evaluation. However, he contended that it is sufficient if the context in which educational services are offered to a student shows that the offer is subject to an implicit condition as to how those services are to be provided. Mr Basten submitted that it was open to the primary Judge to find as a matter of fact that the appellants' offer of a place at the College for the 2000 year was subject to a requirement or condition that Jacob should receive the education without assistance from an Auslan interpreter. 83 According to Mr Basten, the requirement or condition identified by the primary Judge (that is, requiring Jacob to participate in and receive classroom instruction in English without the aid of an interpreter) was one that could be applied to all students seeking admission to the College. On that basis, it was clear that s 6(a) of the DD Act was satisfied, as a higher proportion of students entering the College in 2000 without the disability were able to comply with the requirement or condition (that is, 100 per cent of those without the disability could comply). 84 The respondent supported the primary Judge's finding that the requirement or condition was not reasonable in the circumstances of the case. Mr Basten pointed out that the appellants had not suggested at the trial that the imposition of the requirement or condition was not unreasonable because of questions of costs or because they had a philosophical objection to the use of Auslan. The primary Judge, so Mr Basten argued, had followed the approach put forward by the High Court in Waters v Public Transport Commission, in particular by carefully assessing the ways in which the College could achieve its objectives in a less discriminatory way. 85 Mr Basten submitted that the primary Judge's factual findings relating to the reasonableness of the requirement or condition were well open on the evidence. Specifically, his Honour was entitled to find that Jacob needed Auslan interpreting in order to be able to participate meaningfully in classroom education at the College and that the CEO could have taken steps to accommodate the use of volunteer interpreters found by the Clarkes, as had occurred at the primary school.

REASONING 86 It is useful to begin by recalling what is not in issue on the appeal (see [59] above). The appellants did not dispute that the CEO's schools are and should be open for the reception and education of children with disabilities, including congenital profound deafness. Nor did they contend that the admission of Jacob to the College would require services or facilities the provision of which would impose unjustifiable hardship on the CEO (cf s 22(4) of the DD Act). In particular, there was no suggestion on behalf of the appellants that the provision of Auslan for Jacob would impose an undue financial burden on them. Moreover, as we have noted, we did not permit the appellants to amend their notice of appeal to challenge the primary Judge's finding that the CEO very probably would not have provided Auslan support for Jacob.

positive discrimination 87 It is convenient to consider first the appellants' submission that the DD Act does not impose an obligation on an educational authority to discriminate positively in favour of a disabled person. The submission appears to have been inspired by certain comments made in the joint judgment of Gummow, Hayne and Heydon JJ in Purvis. 88 In Purvis, the appellant had brought proceedings alleging that educational authorities had discriminated against his foster child on the ground of the child's disability, contrary to s 22(2) of the DD Act. The child, aged 12, had exhibited violent behaviour at school in consequence of a condition attributable to brain damage suffered in infancy. The school Principal and the Department of Education determined that the student should be enrolled in a special school and should be excluded from the school he was attending. 89 The appellant contended that the case was one of direct discrimination, falling within s 5 of the DD Act. By majority (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ; McHugh and Kirby JJ dissenting), the High Court held that the exclusion of the student did not satisfy the requirements of s 5, since the educational authority would have treated a non-disabled student exhibiting the same behaviour in the same way. 90 The joint judgment pointed out that the DD Act operates differently than other anti-discrimination legislation. The Sex Discrimination Act 1984 (Cth) and the Racial Discrimination Act 1975 (Cth), for example, require that people not be treated differently on the ground of sex or race; difference in sex or race is identified generally as an irrelevant consideration (at 179-180 [198]). By contrast, 'disability discrimination legislation necessarily focuses upon a criterion of admitted difference' (at 180 [199]). Hence the need for comparisons to be made with another person or group of persons 'with whom it is useful and relevant to draw the comparison which is implicit in describing one person as "different", or "disabled", or "disadvantaged"' (at 180 [201]). 91 Their Honours also pointed out that the 'principal focus of the [DD Act] is on ensuring equality of treatment'. In this respect, it is different from other forms of disability discrimination legislation which aims at equality of outcome, or the elimination of barriers to participation in certain activities (at 180 [203]). Their Honours observed that the DD Act does not 'explicitly oblige' persons to treat disabled persons differently from others in the community, for example, by requiring employers and educational authorities to make reasonable adjustments to accommodate disabled persons (at 181 [203]). This led their Honours to warn that considerable care must be taken before applying what has been said about other forms of disability discrimination legislation to the construction of the DD Act (at 181 [206]). 92 In evaluating these comments it is necessary to take into account that Purvis was not argued as a case of 'indirect disability discrimination' of a kind covered by s 6 of the DD Act. As Gleeson CJ noted, s 6(b) (the unreasonableness requirement) would have created a difficulty for the appellant in Purvis (at 135 [3]). The joint judgment specifically stated (at 181 [207]) that none of the considerations to which their Honours had referred 'denies the importance of giving full effect to the indirect disability discrimination provisions of the [DD Act]'. Their Honours also explicitly recognised (at 182 [207]) that 'there is considerable room for debate about when apparently "equal" treatment is to be understood as being discriminatory and apparently unequal treatment is not.' 93 The reasoning in the joint judgment in Purvis does not support the proposition that the appellants appeared to be urging, namely that the DD Act should be construed so as to preclude any requirement that an educational authority 'discriminate positively' in favour of a disabled person. The concept of 'positive discrimination' is itself of uncertain scope and does not provide a sure guide to the construction of the statutory language, in particular to s 6 of the DD Act. As McHugh J remarked of a comparable provision, arguments based on any concept of discrimination outside the statutory definition are not legitimate aids to the construction of the term 'reasonable': Waters v Public Transport Commission, at 400. In any event, it is not appropriate to approach the task of statutory construction from a pre-determined position which rules out a particular result regardless of the language used by Parliament. There is no substitute for analysing the words of the enactment, having regard to the stated objectives of the legislation and the statutory context: IW v City of Perth (1997) 191 CLR 1, at 12, per Brennan CJ and McHugh J.

the REMAINING issues 94 On the appeal, the respondent relied on s 22(1)(b) of the DD Act to support the conclusions reached and orders made by the primary Judge. The respondent therefore had to uphold the primary Judge's findings that: (i) the appellants were educational authorities; (ii) they had discriminated against Jacob on the ground of his disability; (iii) they had done so in the terms and conditions on which they were prepared to admit Jacob to the College as a student in 2000. 95 There was no dispute as to (i). There was also no dispute on the appeal that the appellants had been prepared to admit Jacob as a student only on the terms and conditions set out in the letter of 16 August 1999 and that those terms and conditions had been correctly identified by the respondent and the primary Judge. That is, Jacob would be admitted as a student to the College only on condition that: (a) Auslan support would not be provided as part of the model of support; and (b) at best, Auslan signing would be provided as 'other possible support', subject to two further pre-conditions, including the availability of a staff member with signing skills. 96 To establish at the trial that the appellants had discriminated against Jacob on the ground of his disability, the respondent invoked s 6 of the DD Act. Section 6 is, in effect, a deeming provision, in the sense that if the requirements of the section are satisfied the alleged discriminator is taken for the purposes of the DD Act to have discriminated against the aggrieved person on the ground of that person's disability: Waters v Public Transport Commission, at 410, per McHugh J. As we have noted, the primary Judge found that the requirements of the section had been satisfied, in that: (i) the appellants had required Jacob to comply with a requirement or condition, namely to participate in and receive classroom instruction without an interpreter; (ii) a substantially higher proportion of Year 7 students attending the College was able to meet the requirement or condition so defined; (iii) the requirement or condition was not reasonable in the circumstances of the case; and (iv) Jacob, by reason of his dependence on Auslan, was not able to comply with the requirement or condition. 97 We turn now to the appellants' challenges to those findings.

requirement oR condition 98 The respondent's submissions appeared to treat the expression 'term or conditions' in s 22(1)(b) of the DD Act as more or less co-extensive with the expression 'requirement or condition' in s 6. As Ms Eastman pointed out in argument, however, the expressions are not necessarily identical. Section 22(1)(b) is concerned with the actual terms and conditions on which a particular educational authority is prepared to admit a particular student. Whether and what terms and conditions were imposed on a specific case is a matter for evidence. In the present case, the terms and conditions on which the College was prepared to admit Jacob were specified in Sister Quinane's letter of 16 August 1999, attaching the model of support. 99 Section 6 of the DD Act, on the other hand, states the test for determining whether an alleged discriminator has discriminated against another person on the ground of the latter's disability. The section asks whether the alleged discrimination has required the aggrieved person to comply with a 'requirement or condition' that satisfies the three criteria specified in pars (a), (b) and (c). The question posed by ss 6 and 22(1)(b) of the DD Act, in a case of alleged indirect disability discrimination by an educational authority, is whether the terms or conditions on which the authority is prepared to admit a student constitute a 'requirement or condition' satisfying the criteria specified in s 6. If so, discrimination on the ground of the person's disability 'in the terms and conditions on which it is prepared to admit the person as a student' will be established. To answer the question posed by ss 6 and 22(1)(b) requires characterisation of the terms and conditions on which the particular educational authority is prepared to admit the particular student. 100 The fact that an educational authority is prepared to admit a person as a student only on certain terms and conditions does not necessarily mean that it has required the person to comply with a 'requirement or condition' for the purposes of s 6 of the DD Act. The point is illustrated by Waters v Public Transport Commission. In that case, the High Court held that a 'requirement or condition', within the meaning of s 17(5) of the Equal Opportunity Act 1984 (Vic) (a provision very similar to s 6 of the DD Act) is necessarily separate from the matter to which the requirement or condition relates. Thus, in the context of considering a provision similar to s 24(1) of the DD Act, Mason CJ and Gaudron J (with whom Deane J agreed) accepted (at 361) that 'the notion of "requirement or condition" would seem to involve something over and above that which is necessarily inherent in the goods or services provided. Thus, for example, it would not make sense to say that a manicure involves a requirement or condition that those availing themselves of that service have one or both of their hands.' See, too, at 394, per Dawson and Toohey JJ; at 407, per McHugh J. 101 If a term or condition of admission to an educational institution simply defines the nature of the institution, or the educational services provided by that institution, it may well not constitute a 'requirement or condition' for the purpose of s 6 of the DD Act. If, for example, a business college admits only persons who undertake to study accountancy in the first year of the course, this may be a term or condition on which it is prepared to admit a person as a student for the purposes of s 22(1)(b) of the DD Act, but not necessarily a requirement or condition for the purposes of s 6. 102 Several additional propositions relevant to the present case can be derived from Waters v Public Transport Commission. First, the identification of the services provided by the alleged discriminator, for the purposes of s 24(1)(b) of the DD Act, is a question of fact: at 361, per Mason CJ and Gaudron J; at 394, per Dawson and Toohey JJ; at 407, per McHugh J. So, too, is the question of whether the alleged discriminator has imposed a requirement or condition on persons wishing to use the services: at 394, per Dawson and Toohey JJ; at 408, per McHugh J. 103 Secondly, the expression 'requirement or condition' in s 6 of the DD Act should be construed broadly to include any form of qualification or pre-requisite, although the actual requirement or condition should be formulated with some precision: Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165, at 185, per Dawson J; at 195-196, per McHugh J; Waters v Public Transport Commission, at 393, per Dawson and Toohey JJ; at 406-407, per McHugh J. In this respect, the legislation should be given a generous interpretation and an alleged discriminator should not be permitted to evade the statutory prohibition or indirect discrimination by defining its services so as to incorporate the alleged requirement or condition: Waters v Public Transport Commission, at 394, per Dawson and Toohey JJ. 104 Thirdly, an alleged discriminator may be found to insist on compliance with a 'requirement or condition' within s 6 even though the requirement or condition is not explicitly imposed. It is sufficient for the requirement or condition to be implicit in the conduct which is said to constitute discrimination: Waters v Public Transport Commission, at 360, per Mason CJ and Gaudron J; at 393, per Dawson and Toohey JJ; at 407, per McHugh J. Hence in Waters v Public Transport Commission itself, it was held to be open to the Victorian Equal Opportunity Board to find that the removal of conductors from Melbourne's trams amounted to a requirement or condition that disabled people could fully avail themselves of the services only if they could use the trams without the assistance of conductors: see at 361, per Mason CJ and Gaudron J. 105 The appellants did not submit that the primary Judge had failed to advert to or had incorrectly stated these principles. His Honour pointed out (at 351 [45]) that it is not inherent in high school education that a student undertake classes without the aid of an interpreter. Indeed, in the computer age it is not necessarily inherent that instruction be given in English or any other spoken language. His Honour also regarded it as significant that the appellants' schools were open for the reception and education of students with disabilities, including profound deafness. As his Honour observed, such students may be unable to receive or offer communications by means of any spoken language, except with the aid of an interpreter. 106 It must be acknowledged that the present case is different from Waters v Public Transport Commission. That case involved an application for judicial review of a decision of the Victorian Equal Opportunity Board. It was therefore not open to the High Court to canvass the merits of the Board's factual findings. The present case, by contrast, is an appeal from a decision of the primary Judge who made the relevant findings of fact. If the findings are erroneous, this Court must set them aside. 107 In our view, however, the appellants have not identified any error in his Honour's finding that the terms or conditions on which the appellants were prepared to admit Jacob to the College constituted a requirement or condition for the purposes of s 6 of the DD Act, namely that he participate in and receive classroom instruction without the assistance of an Auslan interpreter. The matters to which his Honour referred support the conclusion he reached. The appellants did not point to any evidence which suggested that the correct characterisation of the course or program conducted by the appellants, and to which the offer of admission related, was the provision of classroom instruction in the English language. 108 On the contrary, the fact that Jacob had received instruction using Auslan at a primary school operated by the CEO suggests that the program provided by the College, also operated by the CEO and open to profoundly deaf students, should not be defined as narrowly as the appellants contended. As Dawson and Toohey JJ observed in Waters v Public Transport Commission, at 394, there is a particular reason not to define narrowly the service provided by an alleged discriminator, so as to incorporate as part of the service what would otherwise be a requirement or condition 'where the service previously provided by it was continued, but with alterations which might be characterised as the imposition of different requirements.' In effect, the CEO was offering Jacob the same educational facilities in secondary school as he had experienced in the CEO's primary school, but subject to the imposition of different requirements. 109 The appellants' challenge to the primary Judge's finding that the appellants had required Jacob to comply with a requirement or condition fails.

SECTION 6(a): 'SUBSTANTIALLY HIGHER PROPORTION' 110 The appellants' challenge to the primary Judge's finding that s 6(a) of the DD Act was satisfied was based on the proposition that where a benefit or service is offered to a person with a disability, but is not offered to persons without a disability (that is, the non-disabled students admitted to the College in 2000), there is no base group that can be identified for the purposes of making a comparison. 111 Section 6(a) is satisfied if the requirement or condition is one with which a 'substantially higher proportion of persons without the disability comply or are able to comply'. This language implicitly requires a comparison to be made. Clearly enough, one comparator is a group of persons without the disability. The other comparator is not, however, specifically identified. But as Dawson J observed in Australian Iron & Steel v Banovic, at 187, a 'proportion must be a proportion of something'. This suggests that the second comparator is a group of persons with the disability. The comparison is not with the aggrieved person, since that person's ability to comply with the requirement or condition is addressed in s 6(c). In any event, it does not accord with the ordinary use of language to refer to the 'proportion' able to comply with a requirement in relation to only one person. 112 Section 6(a) of the DD Act does not mean that the comparison must be between all persons with the disability and all those without it: Australian Iron & Steel v Banovic, at 178, per Deane and Gaudron JJ. The determination of the appropriate groups must be based on the evidence in the particular case, although the groups chosen must, as a matter of law, be capable of allowing the comparison required by s 6(a) to be made: Australian Iron & Steel v Banovic, at 179, per Deane and Gaudron JJ. 113 The appellants did not dispute the appropriateness of the 'base group' selected by the primary Judge, namely students admitted to Year 7 at the College in 2000 or, alternatively, all students enrolled at the College in 2000. Rather they disputed that any comparison at all should be made. This submission, however, flies in the face of the statutory language. Once the aggrieved person establishes that the alleged discriminator required the person to comply with a particular requirement or condition, the Court must address whether it is a requirement or condition with which a substantially higher proportion of persons without the disability comply or are able to comply. There is no basis in the statutory language for not making that inquiry simply because the alleged discriminator claims to have provided a benefit or service not generally available to non-disabled persons. To accede to the appellants' submission would be to insert a qualification to s 6(a) of the DD Act that Parliament did not see fit to include. 114 The appellants conceded that if s 6(a) of the DD Act requires a comparison to be made, and if the primary Judge correctly identified the base group, s 6(a) was satisfied. The evidence amply justified his Honour's finding that the base group was either students enrolled in Year 7 at the College in 2000, or all students enrolling at the College in that year. Indeed, it is difficult to see what other base group could have been selected for the purposes of the comparison. Certainly the appellants did not suggest an alternative.

section 6(b): UNreasonableness of the requirement or condition 115 The appellants did not submit that the primary Judge had erred in stating the principles to be applied when determining whether a requirement or condition is not reasonable having regard to the circumstances of the case (DD Act, s 6(b)). As his Honour remarked, the principles are now well settled: see State of Victoria v Schou [2004] VSCA 71, at [25], per Phillips JA (with whom Buchanan JA agreed). They include the following: (i) The person aggrieved bears the onus of establishing that the condition or requirement was not reasonable in the circumstances: Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78, at 111, per Sackville J (with whom Davies and Beaumont JJ agreed), and the authorities cited there. (ii) The test of reasonableness is an objective one, which requires the Court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the condition or requirement, on the other: Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251, at 263, per Bowen CJ and Gummow J; Waters v Public Transport Commission, at 395-396, per Dawson and Toohey JJ; at 383, per Deane J. Since the test is objective, the subjective preferences of the aggrieved person are not determinative, but may be relevant in assessing whether the requirement or condition is unreasonable: Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74, at 82-83, per Lockhart J. (iii) The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience: Styles, at 263. It follows that the question is not whether the decision to impose the requirement or condition was correct, but whether it has been shown not to be objectively reasonable having regard to the circumstances of the case: Australian Medical Council v Wilson (1996) 68 FCR 46, at 61-62, per Heerey J; Commonwealth Bank v HREOC, at 112-113, per Sackville J. (iv) The Court must weigh all relevant factors. While these may differ according to the circumstances of each case, they will usually include the reasons advanced in favour of the requirement or condition, the nature and effect of the requirement or condition, the financial burden on the alleged discrimination of accommodating the needs of the aggrieved person and the availability of alternative methods of achieving the alleged discriminator's objectives without recourse to the requirement condition: Waters v Public Transport Corporation, at 395, per Dawson and Toohey JJ (with whom Deane J agreed on this point, at 383-384). However, the fact that there is a reasonable alternative that might accommodate the interests of the aggrieved person does not of itself establish that a requirement or condition is unreasonable: Commonwealth Bank v HREOC, at 88, per Beaumont J; State of Victoria v Schou [2004] VSCA 71, at [26], per Phillips JA. 116 In addition to reminding himself of these principles, the primary Judge acknowledged (at 354 [53]), correctly, the need to act with 'an appropriate degree of diffidence' in assessing the actions of an educational institution in respect of which there may be a division of opinion (citing State of Victoria v Schou (2001) 3 VR 655, at 663 [30]-[31], per Harper J). Even so, his Honour considered that in the circumstances, the appellant's insistence that Jacob participate in and receive classroom instruction without an interpreter (with a possibility of utilising Auslan only if a staff member with appropriate Auslan skills was available) was unreasonable. 117 The primary Judge's conclusion depended on certain critical findings of fact. In particular his Honour found that:

Jacob was Auslan dependent and that there was no prospect of him being able to communicate without Auslan, either quickly or without difficulty (at 356 [61]).
In the absence of an Auslan interpreter, Jacob would not have received an effective education at all, although over time it may have been possible to reduce his dependency on an in-class interpreter (at 357-358 [70]).
The terms and conditions of the offer of enrolment had not subsequently been modified by the appellants, and thus there was 'scant prospect' of the appellants actually providing Auslan support for Jacob (at 357 [67]).
The appellants were motivated predominantly by two considerations: first, a view that further classroom dependence on Auslan would be inimical to the goal of allowing Jacob to get through life without an Auslan interpreter and, secondly, a reluctance to make the adjustments necessary to supply interpreting services to Jacob (at 358 [72]).
The first reason was wrong and unreasonable because, as any adult should have known, a sudden withdrawal of Auslan support would cause Jacob distress, confusion and frustration (at 358 [73]).
A reasonable alternative was available that would have been acceptable to the Clarkes and, in the light of the primary school experience, 'would have had no net ill effects' (at 359 [75]-[77]).
While there would have been difficulties in finding Auslan interpreters, it was far from impossible to do so and, in any event, the alternative provided for reversion to note-taking if interpreting assistance proved not to be available (at 359 [78]).
Financial considerations did not play a major part in the equation and the reasonable possible equity concerns of the appellants were outweighed by the fact that Jacob was the only profoundly deaf student expected to attend the College in 2000 (at 359-360 [79]-[81]). 118 As the primary Judge recognised (at 353 [50]), the decision as to the unreasonableness or otherwise of the requirement or condition imposed by the appellants was a difficult one to make. His Honour, in applying the principles summarised above, was obliged to assess a number of considerations, some of which were in conflict. It is important to appreciate, however, that the appellants did not argue that the primary Judge had erred in weighing up the competing considerations. Nor was it suggested that he had failed to apply the relevant principles. Instead the appellants challenged certain of the factual findings which underpinned his Honour's conclusion that the requirement or condition was unreasonable. 119 The appellants submitted that his Honour had found, consistently with the weight of evidence, that Auslan interpreters were simply not available to assist Jacob at the College. This submission, however, misstates the relevant findings. His Honour accepted that the appellants did not have 'ready access to Auslan interpreters in 1999' and that there was a shortage of trained Auslan signers and interpreters in the Australian Capital Territory. But his Honour also found that, despite the difficulties, the Clarkes' 'zeal' and their willingness to enlist Auslan volunteers meant that it was 'far from impossible' for the College to provide Auslan support for Jacob (at 359 [78]). The strategy identified by the primary Judge as a reasonable alternative necessarily contemplated that Auslan interpreters would be available for Jacob. In the light of the assistance provided to Jacob at primary school and the Clarkes' repeated and obviously sincere offers of assistance, it was clearly open to his Honour to find that the College could have made provision for Jacob to be given Auslan support in the classroom. 120 The appellants next challenged the finding that Jacob was Auslan dependent. The primary Judge had the opportunity, however, to observe Jacob in the witness box and to assess his ability to communicate. He also had evidence from Jacob's parents as to Jacob's need for Auslan assistance. Moreover, the primary Judge accepted the 'impressive' evidence of Dr Komesaroff, a highly qualified educationalist and qualified Auslan interpreter (at 356 [62]). Dr Komesaroff, who had met with Jacob and his parents, gave evidence to the effect that Jacob would struggle at school without Auslan assistance. 121 Mr Spry submitted that the primary Judge should have preferred the evidence of Dr Walker, the expert called by the appellants, over that of Dr Komesaroff. Mr Spry pointed out that Dr Komesaroff was an advocate for Auslan. However, his Honour specifically acknowledged that fact, but nonetheless considered that Dr Komesaroff's views were 'sound and reliable'. His Honour was also entitled to take into account that Dr Walker, in cross-examination, conceded that Jacob would have difficulty in obtaining information without signing, at least in certain classes, and that it would be 'very much easier for him' if he could use Auslan. In our view, it was plainly open to the primary Judge to accept Dr Komesaroff's opinion and to find that Jacob was Auslan dependent. 122 The appellants also challenged the primary Judge's finding that 'financial considerations do not play a major part in the equation'. His Honour accepted that grant funds were not available for the high rates that professional interpreters could command, but found that funds were available for a teacher's aide. His Honour took into account, as he was entitled to do, the Clarkes' offer of financial assistance and their determination to enlist the support of volunteer interpreters to provide Auslan interpreting services. There was also evidence that the primary school had used a modest grant to secure the part-time services of assistants who were qualified to interpret Auslan. 123 Mr Spry did not identify any evidence which established that the provision of Auslan interpreters for the 2000 year and beyond would have created significant financial problems for the appellants. At best, the evidence indicated that additional government funding for disabled children in Catholic schools in the ACT was less than for disabled children in government schools. There was sufficient evidence to support the primary Judge's finding that financial considerations did not weigh heavily in the balance. 124 Finally, the appellants criticised the primary Judge's finding that there was a reasonable alternative available. The grounds of the criticism were not entirely clear, but seemed to rest on the assertion that the alternative was no better for Jacob than the model of support proposed by the College. The Court was not taken to evidence that would support the assertion which, in any event, is inconsistent with the other findings made by his Honour. The primary Judge was entitled to take the alternative into account. We should add that the appellants did not suggest that his Honour regarded the alternative as determinative on the question of unreasonableness. 125 Since the challenges to the primary Judge's factual findings have not been made out, there is no basis for setting aside the finding that the requirement or condition was not reasonable having regard to the circumstances of the case.

section 6(d): jacob's inability to comply 126 The appellants challenged the finding that Jacob was unable to comply with the requirement or condition imposed by them. However, the argument added nothing to the issues already addressed. There was no error in his Honour's finding.

SECTION 45: SPECIAL MEASURE 127 The appellants submitted that they were exempt from any finding of discrimination by virtue of s 45 of the DD Act. Mr Spry did not identify which part of s 45 the appellants relied on, but his written submissions seem to imply that the case was covered by s 45(b). The submission was that the appellants' acts were reasonably intended to afford Jacob, as a person with a particular disability, access to services to meet his special needs in relation to education. 128 The primary Judge did not address this submission in the judgment, but his Honour said in the course of final submissions that the case had nothing to do with s 45. 129 Two points should be made about s 45. The first is that the section should receive an interpretation consistent with the objectives of the legislation. As Finkelstein J observed in Richardson v ACT Health and Community Care Service (2000) 100 FCR 1, at 5 [24], an expansive interpretation of an exemption in anti-discrimination legislation may well threaten the underlying object of the legislation. Section 45 is primarily designed to make lawful affirmative conduct, 'reasonably intended' to provide services or facilities to disabled people that are not available to the general community or to provide benefits to particular classes of disabled persons to meet their special needs, even though the benefits are not made available to other disabled people: Richardson v ACT Health Services, at 5-6 [25]. 130 The second point is that s 45 of the DD Act refers to an act that is 'reasonably intended' to achieve certain objectives. In this respect, it differs, for example, from s 82(1) of the Equal Opportunity Act 1995 (Vic), considered in Colyer v State of Victoria [1998] 3 VR 759, a case relied on by the appellant. Section 82(1) of the Victorian Act provided an exemption for certain conduct 'designed' to meet the special needs of intellectually disabled people. It was held that 'designed' refers to the subjective plan or intent of the decision-maker: see at 773-774, per Kenny JA, with whom Brooking and Callaway JJA agreed. However, Kenny JA noted (at 771) that s 45 of the DD Act incorporates an objective criterion, which requires the Court to assess the suitability of the measure taken to achieve the specified objectives. See, too, Richardson v ACT Health Services, at 6 [26] (construing s 27 of the Discrimination Act 1991 (ACT)). 131 The appellants' submissions did not specify the 'act' that was said to be protected by s 45. They appear to have assumed, however, that the relevant act was the offer of a model of support providing benefits to Jacob over and above those available to non-disabled students admitted to the College. But the 'act' rendered unlawful by ss 6 and 22(1)(b) of the DD Act was the appellants' offer of a place subject to a term or condition that Jacob participate in and receive classroom instruction without an interpreter. On no analysis could it be said that this act was reasonably intended to achieve any of the objectives set out in s 45(a), (b) and (c). 132 In any event, the findings made by the primary Judge were inconsistent with the conclusion that the appellants' conduct was reasonably intended to achieve any of those objectives. His Honour found that any adult should have known that the withdrawal of Auslan support would cause Jacob distress, confusion and frustration and that, in the absence of an Auslan interpreter, Jacob would not have received an effective education. Whatever the subjective intentions of the appellants' officers, it could not be said that the particular act otherwise rendered unlawful satisfied the objective standard incorporated into s 45. 133 For these reasons, the appellants' reliance on s 45 of the DD Act was misplaced.

damages 134 The appellants submitted that the award of damages was excessive. The submission was not developed and no basis has been shown for interfering with what appears to be a relatively modest award: cf Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217, at 238-239, per Lockhart J; at 256, per Wilcox J; at 281-282, per French J; Purvis v NSW, at 140 [23], 173-174 [174]-[175], per McHugh and Kirby JJ (their Honours, being in dissent, were the only ones to address quantum).

conclusion 135 The appellants' challenges to the findings made and conclusions reached by the primary Judge fail. The appeal must therefore be dismissed. The appellants must pay the respondent's costs. 136 We should add one final comment. Contrary to the claims made on behalf of the appellants, this case does not mean that educational authorities risk being penalised for endeavouring to assist disabled children. The outcome of the case depends on the particular factual findings made by the primary Judge. It also reflects the way in which the case was fought both at trial and on appeal. Whether an educational authority which refuses to accommodate the needs of a disabled student breaches the DD Act is likely to depend on the provisions relating to direct discrimination, especially s 5. Such a case might raise the question of whether the provision of services or facilities not required by non-disabled students would impose unjustifiable hardship on the educational authority: cf ss 22(4), 24(2). The issues presented in such a case would be different from those on the present appeal. I certify that the preceding one hundred and twenty-two (122) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Sackville and Stone.

Solicitor for the Appellants: Howes Kaye Halpin

Counsel for the Respondent: J Basten QC with N Poynder

Solicitor for the Respondent: Home Wilkinson Lowry

Human Rights and Equal Opportunity Commission Act 1986(Cth)ss 11, 46PH, 46PO

Equal Opportunity Act 1984(Vic)ss 17, 82

Equal Opportunity Act 1995(Vic)

Disability Discrimination Act 1992(Cth)ss 6, 22, ss 3, 4, 5, 6, 11, 12, 15, 16, 17, 18, 19, 21, 22, 23, 24, 25, 45, 67

Catholic Education Office v Clarke

At a glance

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Judgment (21 paragraphs)

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Legislation Cited (7)

Cases Cited (13)

Cited By (21)