Clarke v Catholic Education Office & Anor

Federal Court of Australia|2003-10-08|Before: Madgwick J

REASONS FOR JUDGMENT HIS HONOUR: Introduction 1 This is an application made under the Disability Discrimination Act 1992 (Cth) ("the DDA"). The application is brought by Mr Clarke for his son, Jacob, who is profoundly deaf and has been so since birth. The first respondent, the Catholic Education Office ("the CEO"), is an educational authority responsible for the administration of Catholic schools in the Archdiocese of Canberra and Goulburn, including the second respondent, Mackillop Catholic College ("the College"), a high school to which an application was made by the Clarkes for enrolment of Jacob as a pupil. 2 It is alleged that the respondents unlawfully discriminated against Jacob, on the grounds of his disability, in respect of the terms and conditions on which they were prepared to admit Jacob to the College and as to the terms and conditions on which the respondents' services would be provided. Central to the complaint is that a proposed "model of learning support" put forward by the respondents for Jacob's deafness, as part of the terms and conditions on which the offer was made, did not include the provision of Australian Sign Language (better known as Auslan) interpreting assistance and instead relied on the use of note-taking as the primary communication tool to support Jacob in the classroom. It is alleged that Jacob would not have been able adequately to participate in and receive classroom instruction without such sign language assistance. In the absence of such assistance or a firmer commitment to the likelihood of its use, the Clarkes ultimately withdrew their acceptance of an offer of enrolment at the College, which had been made to them.

Application for enrolment to the College 12 In early 1999, the Clarkes made enquiries about enrolling Jacob at the College. On 3 May 1999 they completed an application for enrolment for Jacob to commence there in 2000. In response to a question on the application form as to the main language used by Jacob at home, the Clarkes wrote "Sign Language" and in response to a question as to other languages spoken, they answered "English". The Clarkes indicated that the main language that they spoke at home was English and that "Sign Language" was another language spoken at home. The Clarkes also responded affirmatively to questions about whether Jacob had any disabilities or specific learning difficulties, indicating that Jacob had "profound bilateral sensori-neural hearing loss". 13 In order to effect Jacob's enrolment and ensure a smooth transition from primary to high school, the respondents arranged a series of enrolment meetings to take place in June and July 1999. The purpose of these meetings was to develop what the respondents, by their agents, considered would be, and what they hoped the Clarkes would agree was, an appropriate model of learning support for Jacob. The first meeting took place on 2 June 1999. The minutes of the meeting indicate that Mr and Mrs Clarke and Jacob, Sr Noelene Quinane (Principal of the College), Mrs Kerr (Jacob's teacher's aide during primary school), Ms Mahoney (Special Needs teacher at the College) and two representatives from the CEO Special Needs Education team, Dr Lynette Walker and Ms van Beurden, were present. Although not mentioned in the minutes, the Deputy Principal of the College, the Principal of Jacob's primary school and one of Jacob's teachers from his primary school were also present. The meeting involved a discussion of Jacob (including his parents' aspirations for Jacob and a brief history of his primary school education) and the existing model of support for special needs students at the College. A document entitled "Meeting Summary and Major Understandings" was later produced by the respondents and circulated to the parties. 14 Following circulation of this paper, at some time in June 1999, Mr Clarke contacted Ms van Beurden and advised that 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, which they did on 30 June 1999. Mr Clarke included concerns as to the following points made in the Meeting Summary: "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, 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, 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.". Mr Clarke considered that point 3.5 did not clearly reflect the respondents' position on sign language support in the classroom. He alleged that he had specifically asked at the meeting whether the respondents had any philosophical opposition to sign language supportin the classroom and that Dr Walker, on behalf of the respondents, had indicated that there was no objection. Mr Clarke requested that the Meeting Summary be amended to reflect the position that the school had no philosophical opposition to sign language support. Mr Clarke also denied that the statement in point 3.6 was made during the meeting. In fact the text of point 3.6 was added to the draft summary of the meeting by the relevant senior officer in the CEO, Mr Traynor, although he had not been at the meeting. Finally, in respect of point 4.2, Mr Clarke considered it should be deleted as there had been no discussion at the meeting about the particular support to be provided for Jacob. 15 A further meeting was conducted between the Clarkes and representatives of the respondents on 20 July 1999 with the aim of establishing a clear understanding of the proposed model of support and to finalise arrangements for Jacob's enrolment. An amended model of support, which concerned particular assistance 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) 16 The Clarkes were invited by Sr Quinane to submit a statement setting out the details of support they believed Jacob would need at the College. 17 They subsequently prepared a statement dated 22 July 1999 and submitted it to the respondents. It is an impressive document. In it, the Clarkes affirmed and explained their view that Jacob needed signing support so that he could develop his English language skills, and be able to participate fully in his core subjects. In respect of note-taking, the Clarkes' view was that, whilst it could be a useful resource, it should only be used as a backup tool and it would be inappropriate for use as a primary aid for Jacob. It was their view that, to achieve the ultimate aim (which all parties shared), that Jacob be able to operate effectively in the hearing world, a transitional model which involved developing his skills in his first language, Auslan, before improving his skills in English, would be required. The Clarkes also reaffirmed an earlier offer to provide assistance, including a cash grant by them for a teacher's aide of up to $15,000 and offered: · to help prepare any application for appropriate government grants; · to arrange volunteers to provide part-time Auslan signing support for Jacob; · to be available to attend excursions and camps as Jacob's interpreter; and · to arrange Auslan classes for teachers at the school on a voluntary basis (to be taught by Mrs Kerr). 18 A further meeting between the parties was conducted on 28 July 1999. Sr 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 accepting the model of support, but again noting their concerns as to the relevance of such a model for a sign-dependent pupil. 19 On 16 August 1999 an offer of enrolment to attend the college was sent to the Clarkes, along with the proposed model of learning support. A covering letter relevantly stated: "Dear Mr & Mrs Clarke OFFER OF ENROLMENT 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. …" 20 The attached model of support provided: "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) 21 On 24 August 1999, the Clarkes wrote to the College and 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 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. …" 22 In response, Sr Quinane wrote back to the Clarkes on 14 September 1999 as follows: "Thank you for your correspondence of 24 August 1999… 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. …" 23 During November 1999, it appears that attempts were made by the respondents' employees to observe Jacob in the classroom at his primary school. The Clarkes regarded it as vital that such observations should be undertaken whilst Jacob was receiving signing support: they were keen for the respondents' agents to see how effective this support was for Jacob and how otherwise workable it was. A member of the CEO's Special Needs team attended at Jacob's primary school at a time when the signer was not present. This was of some concern to the Clarkes and they requested that no further contact be made with the primary school. 24 The Clarkes withdrew their acceptance of the offer of enrolment on 1 December 1999. 25 Sr Quinane then wrote to the Clarkes on 15December 1999 acknowledging receipt of their withdrawal of enrolment, and said: "Please be assured that, should you wish to reconsider your decision into 2000, we 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 in this instance." (emphasis added) Counsel for the respondent submits that at no time did the respondents terminate what were, in effect, ongoing negotiations and/or the offer that Mr and Mrs Clarke might reconsider their decision to withdraw Jacob's enrolment. 26 MacKillop College had not had a profoundly deaf pupil before. The CEO had not had to deal previously with an Auslan dependent pupil in any of its high schools. Some latitude for good faith adjustment should fairly be made, but the successful primary school arrangements need also to be taken into account. 27 Mr Traynor, the Coordinator of the CEO's Special Needs Education Services Team did not accept that Jacob needed a teacher's aid fluent in Auslan. He was told by Dr Walker, then the Special Needs Consultant in that Team for students with communication and language disorders, that such would be desirable but was not necessary 28 On 26 November 2000 Mr Clarke lodged a written complaint with the Human Rights and Equal Opportunity Commission ("HREOC") alleging unlawful discrimination against Jacob on the grounds of his disability. The basis of the complaint was that the respondents had offered Jacob a place in the College conditional upon a model of support which had made no provision for Auslan assistance. It was alleged that the respondents were discriminating against Jacob because, unlike others in the class without his disability, Jacob would not be able to participate fully in the lessons. A conciliation conference was held in Canberra on 13 June 2001 but failed to settle the matter. On 15 June 2001 a delegate of the President of the HREOC issued a Notice of Termination on the grounds that there was no reasonable prospect of the complaint being settled by conciliation: s 46PH(1)(i) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("the HREOC Act"). 29 Proceedings were commenced in this court, pursuant to s 46PO of the HREOC Act. The application was expressed in the following terms: "Jacob Clarke has been profoundly deaf since birth. His primary mode of communication is through sign language (Auslan). During 1999 Jacob's parents Nicholas and Linda Clarke, sought enrolment for Jacob at Mackillop College for Year 7, which was due to commence in the 2000 school year. Both Mackillop College and the Catholic Education Office made Jacob's enrolment at Mackillop College conditional on a model of learning support that did not provide for a primary mode of communication by Auslan. As a result, Jacob was unable to enrol in Mackillop College." An allegation made was of indirect discrimination (s 6 of the DDA) in respect of the terms and conditions upon which the school was prepared to admit Jacob as a student (s 22(1)(b) of the DDA). A further allegation was later made in the applicant's submissions of indirect discrimination in respect of the terms and conditions upon which the respondents would provide their services to Jacob (s 24(1)(b) of the DDA).

The legislative framework 30 The objects of the DDA 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." (emphasis added) 31 "Disability" is defined in s 4 to include: "(a) total or partial loss of the person's bodily or mental functions; or … (e) the malfunction … of a part of the person's body; or (f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or (g) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour; and includes a disability that: (h) presently exists; or (i) previously existed but no longer exists; or (j) may exist in the future; or (k) is imputed to a person." It is common ground that Jacob meets the statutory definition of disability as a result of his profound deafness. 32 In respect of the allegation of discrimination based on education, s 22(1)(b) relevantly provides: "(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." 33 It is not in dispute between the parties that the CEO is an "educational authority" or that the College is an "institution" as defined in s 4 of the Act. 34 In respect of the allegation of discrimination based on the provisions of goods, services or facilities, s 24(1)(b) relevantly provides: "(1) It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's disability … (a) … (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) …" Section 4 defines "services" to include "services of the kind provided by members of any profession or trade" and the applicant submits that the relevant service is teaching. 35 What is known as indirectdisabilitydiscrimination is provided for in s 6 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."

Preliminary objection to the applicant's allegation made under s 24 of the DDA 36 The respondents raised a preliminary objection to the applicant's reliance on the allegation of unlawful discrimination based on s 24(1)(b) of the DDA because it had not been included in the original application to the Court. Counsel for the respondents objected that her clients had not had the opportunity to consider and prepare a defence based on unjustifiable hardship. Section 24(2) of the DDA provides: 'This section does not render it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services, or making facilities available, would impose unjustifiable hardship on the person who provides the goods or services or makes the facilities available.' 37 Counsel for the respondents referred to s 46PO(3) of the HREOC Act which provides that: "The unlawful discrimination alleged in the application: (a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or (b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint." 38 Counsel for the applicant sought to amend the application in accordance with O 13 of the Federal Court Rules and submitted that the respondents had been on notice since the Particulars of Complaint, which included this additional ground, was filed on 6 September 2001 and as such, had not suffered any prejudice. 39 Following discussion of a possible adjournment, should the respondents wish additional time to prepare a defence on the grounds of unjustifiable hardship, the respondents indicated that they did not wish to adduce any further evidence in respect of such a defence. Accordingly, I permitted the claim of unlawful discrimination pursuant to s 24(1)(b) of the DDA to be included as part of these proceedings. 40 The applicant seeks to establish that the respondents indirectly discriminated against Jacob in relation to the terms and conditions upon which he was offered enrolment at the College (s 22(1)(b)) or the provision of educational services (s 24(1)(b)). The applicant defines the relevant terms and conditions of the model of support as follows: (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 pre-conditions, 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.

The issues 41 To establish that the respondents have indirectly discriminated against Jacob, the applicant 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.

Was there a requirement or condition? 42 Counsel for the applicant framed the alleged requirement or condition imposed as being one that required Jacob "to participate in and receive classroom instruction" or "to participate in and receive classroom instruction without the assistance of an interpreter". For reasons that will appear, the first of these formulations would not avail the applicant and I confine my attention to the second. Counsel compares the situation in Waters v Public Transport Corporation (1991) 173 CLR 349 ("Waters"),which involved comparable Victorian legislation. In that case certain changes had been made to the public transport system in Melbourne, including the removal of conductors from trams. The allegation of discrimination was that the complainants suffered from disabilities which made it difficult, if not impossible, for them to use a particular form of ticket (called a "scratch ticket") or, by reason of their particular disabilities, made it impossible for them to travel on trams which did not have conductors. The Court held that the relevant requirement or condition was that the complainants could only use the services provided by the respondent's trams if they were prepared to "endure" using the trams without the assistance of a conductor. In this case, Jacob could participate and receive classroom instruction provided by the respondents only if he were prepared to "endure" such instruction without the assistance of an interpreter. 43 Counsel for the respondents submits that it is insufficient to describe the service as "teaching" or "education" and submits that the correct characterisation of the services is the provision of classroom education to secondary students at a school administered by the CEO. The significance of this, it is submitted, is that an intrinsic feature of such education is that it is provided in English. On this basis, both of the applicant's characterisations of the alleged requirement or condition are in fact a description of a feature or nature of the education or service itself. Thus, the respondents contend, the applicant has failed to define a requirement or condition imposed by the respondent upon the provision of such services under s 6 of the DDA, or to define any term or condition capable of attracting s 22(1)(b) or s 24(1)(b) of the DDA. Counsel submitted that the correct characterisation was that the only requirement or condition was that Jacob should participate in and receive classroom instruction in conformity with the proposed model of support and it was not suggested by the applicants that he could not comply with that requirement or condition. It was submitted that the question does not require evaluation of whether the respondents ought to have provided Auslan as part of the model or whether provision of Auslan support was preferable to, or better than the proposed model of support. 44 The identification or characterisation of the particular goods and services is a question of factand the relevant requirement or condition must be separate from the service itself: Waters at 361. As by Mason CJ and Gaudron J there observed, '… 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.' (emphasis added) Even so, a generous approach should be taken. Further, one should be careful to avoid making a distinction between the requirement or condition and the service which is overly narrow, such that it would allow a respondent to evade liability by defining the service so as to incorporate as part of the service that which would otherwise be a requirement or condition: Dawson and Toohey JJ in Waters at 392-93. The legislation is beneficial in nature and it would defeat the purpose of the DDA if a narrow interpretation were to be taken. 45 The applicant's first characterisation falls foul of the necessity for the requirement or condition to be something over and above the service itself. The second, however, in my opinion makes a cogent and fair distinction between the service provided, namely education by classroom instruction or teaching, and an imposed requirement or condition, namely that Jacob participate in such instruction without the assistance of an Auslan interpreter. It is not necessarily inherent in the education of children in high schools that such education be undertaken without the aid of an interpreter. It is not perhaps even necessarily inherent, in an age of computers and cyberspace, that it be conducted to any particular degree in spoken English or in any other spoken language, although the concept of conventional classroom education may be accepted as necessarily implying the use of a spoken language. At least in the circumstances of this case, it was not inherent, however, that an interpreter would not be supplied, if needed. It is accepted by the respondents that their schools are and should be open for the reception and education of pupils with disabilities, including congenital profound deafness. A person disabled by that condition may, at least for a significant period of time, be unable, to a tolerable level, to receive or to offer communication in or by means of spoken English or any other spoken language, without the aid of an interpreter, at least in some areas of discourse, knowledge or skill. Effectively to require such a person to receive education without the aid of an interpreter, while it may or may not be reasonable in the circumstances, is to place a requirement or condition upon that person's receipt of education or educational services that is not necessarily inherent in classroom instruction. There is nothing inherent in classroom instruction that makes the provision of silent sign interpretation for a deaf pupil impossible. Among other things, Jacob's own experience in the primary school from which he had come shows that.

(b) A substantially higher proportion without the disability comply or are able to comply with the requirement or condition but the applicant does not 46 To determine whether there has been discrimination it is necessary to identify an "appropriate base group" with which to compare the individual claiming discrimination, and to decide whether a substantial proportion of those individuals in the base group are able to comply with the relevant requirement or condition: Australian Iron & Steel Pty Lt v Banovic (1987) 168 CLR 165 at 178-79; 187. The applicant defines the relevant base group for comparison with Jacob as either those students attending year seven at the College in 2000 or all students enrolling in classes at the College in 2000. It is submitted, on either definition, that a substantial proportion of the base group is able to meet the requirement or condition (to participate and receive classroom instruction without an interpreter). 47 Counsel for the respondents concedes that, if the applicant's characterisation is accepted, then the requirements of s 6(a) of the DDA will be met. However, the respondents submit that the applicant's choice of a base group is legally inappropriate, as students without Jacob's disability would not, as a matter of law, have been "provided with", that is: made subject to, the model of support. Further, the respondents submit that Jacob was able to comply with the alleged requirement or condition as he was a "total communicator"; the model of support was a positive tool, and compliance with it would not have resulted in unfavourable treatment for him. 48 The respondent's contentions as to the appropriateness of the base group really involve the re-assertion, in another guise, of its proposed characterisation of the essential nature of the relevant service, which, as indicated, I reject.

(c) Jacob's ability to comply 49 The second submission, that Jacob could comply with the model, implicitly and, in my view, correctly concedes that compliance must not be at the cost of being thereby put in any substantial disadvantage in relation to the comparable base group. In my opinion, it is not realistic to say that Jacob could have complied with the model. In purportedly doing so, he would have faced serious disadvantages that his hearing classmates would not. These include: contemporaneous incomprehension of the teacher's words; substantially impaired ability to grasp the context of, or to appreciate the ambience within which, the teacher's remarks are made; learning in a written language without the additional richness which, for hearers, spoken and "body" language provides and which, for the deaf, Auslan (and for all I know, other sign languages) can provide, and the likely frustration of knowing, from his past experience in primary school, that there is a better and easier way of understanding the lesson, which is not being used. In substance, Jacob could not meaningfully "participate" in classroom instruction without Auslan interpreting support. He would have "received" confusion and frustration along with some handwritten notes. That is not meaningfully to receive classroom education.

(d) Reasonableness 50 The final and, to my mind, the most difficult question, is to determine whether the requirement or condition was reasonable in the circumstances. Reasonableness as a test is "less demanding than one of necessity, but more demanding then a test of convenience": Secretary, Department of Foreign Affairs and Trade v Styles and Anor (1989) 23 FCR 251 at 263 per Bowen CJ and Gummow J; Waters at 395 per Dawson and Toohey JJ. As observed by Dawson and Toohey JJ in Waters (at 395): "Reasonableness for the purposes of [the equivalent legislation to s 6 of the DDA] is a question of fact for the [adjudicator] to determine but it can only do so by weighing all the relevant factors. What is relevant will differ from case to case, but clearly in the present case the ability of the respondent to meet the cost, both in financial terms and in terms of efficiency, of accommodating the needs of impaired persons who use trams was relevant in relation to the reasonableness of the requirements or conditions which it imposed and in relation to the reasonableness of the special manner in which the appellants required the respondent to perform its service. Another relevant factor would be the availability of alternative methods which would achieve the objectives of the Cabinet resolution but in a less discriminatory way. Other factors which might be relevant are the maintenance of good industrial relations, the observance of health and safety requirements, the existence of competitors and the like." 51 Following Secretary, Department of Foreign Affairs and Trade v Styles and Anor (1989) 23 FCR 251, Waters and Commonwealth Bank v Human Rights & Equal Opportunity Commission (1997) 150 ALR 1, the following may be stated as settled propositions of law: (1) The onus of showing that the impugned requirement or condition is not reasonable rests on the person aggrieved by it. (2) Reasonableness is to be determined having regard to all the circumstances of the case. These include, but are not limited to: · the nature and extent of the effect of the discriminatory requirement or condition; · the reasons advanced in favour of it; · the possibility of alternative action; and · matters of "effectiveness, efficiency and convenience". (3) The test is an objective one - neither the preferences of the aggrieved person nor the mere convenience of the service supplier can be determinative, though both may be relevant factors. (4) The test of reasonableness is "less demanding than one of necessity, but more demanding than a test of convenience". Thus, if the aggrieved person can show that it may have been convenient for the discriminator to impose the requirement or condition but it was not reasonable in all the circumstances, that will suffice. Likewise, if it appears that although it was not necessary for the discriminator to impose the requirement or condition, but the aggrieved person does not establish that it was unreasonable to do so, there is no indirect discrimination, as statutorily defined. (5) The test is reasonableness not correctness; that is, a decision of the putative discriminator to impose the requirement or condition, may be a reasonable one although not everyone, or even most people, would agree with it. 52 The applicant submits that relevant factors to take into account are: · Jacob's dependence on Auslan assistance; · the limited effectiveness of communication provided by note-taking; · the offer of assistance by the Clarkes to mitigate any financial strain on the respondents by way of paying the sum of $15,000 for a teacher's aide to provide signing support for Jacob and any other similarly needy pupils or alternatively to arrange volunteer support; and · the importance of enrolling Jacob into a school where many of his friends would be going, and the continuation of his religious education. 53 It is appropriate to echo the sentiments of Harper J in State of Victoria v Schou (2001) 3 VR 655 at [30-31]: "When considering in any particular case whether the burden has been discharged courts and tribunals must act with an appropriate degree of diffidence. The expertise of judges and tribunal members does not generally extend to the management of a business enterprise… and just as the courts, in proper recognition of the lack of relevant expertise, will not in general issue to company directors instructions about how they should manage the business under their control, so courts and tribunals concerned with equal opportunity legislation should resist the temptation unnecessarily to dictate to persons who manage, and work on, the shop floor. At the same time, any discrimination legislation should be liberally construed. Getting the balance right will often be difficult." 54 Accordingly I approach this matter with some caution, since it involves intrusion into a field where, on matters of principle, there is some division of views among experts. 55 In support of the respondents' position, counsel submitted: · Jacob is a "total communicator" and is not Auslan dependent and whilst it may have been easier for him to have Auslan, the other non-Auslan strategies would nevertheless have enabled him to participate in classroom instruction; · the long term goal, agreed on all hands, was for Jacob to be an independent learner and to live as fully as possible in a hearing, that is, non-Auslan world; · the model of support was based on expert advice and consideration of both professional and personal opinions, including those of the Clarkes, and was either suitable for Jacob or reasonably thought to be so; · it was understood that neither Mrs Kerr nor any staff with signing/Auslan skills would be available at the College; · the availability of resources to assist Jacob and the shortage of Auslan-trained assistants for teachers was not unlimited; · the Clarkes' offer of a grant could not be accepted because of potential inequity issues concerning families other than the Clarkes and possible future funding consequences (government might consider that the CEO was able to raise its own funds and did not require as much financial assistance as might be presently available); and · the agreed model of support at no stage ruled out the possibility of signing support, including Auslan support, and the respondents intended to pursue (as their actions, in actively pursing, showed) throughout 1999, a range of options, including signing, as part of an overall and evolving model of support. 56 It is important to bear in mind that the issue is the reasonableness of the requirement or condition attached in the case of Jacob Clarke and of no other person, by the respondents. This is not a test case about the merits of Auslan compared with other means of communication between deaf and hearing people. Neither is it a case about the respondents' or any other authority's practices generally in relation to all deaf or profoundly deaf or even profoundly deaf and Auslan dependent pupils. Its is, however, relevant that the respondents might well have had to provide in future for a likely small number of pupils with a similar disability to Jacob's. 57 The case is an unusual one. I do not doubt the genuineness of the compassion both professed and shown by the respondents' relevant employees, nor the reality of their intentions to make appropriate, caring and skilled responses to the needs of disabled pupils, including profoundly deaf ones. In general, I believe that the respondents' witnesses and others concerned in the running of the CEO hold as moral convictions what the relevant legislation seeks to accomplish as a matter of legal requirement. If the respondents are in breach of the law at all it is by way of a single instance of unreasonable conduct brought about by mistakes made in good faith, rather than in consequence of any systemic tolerance of the concept or practice of discrimination against any category of disabled people. Nevertheless, in my opinion, such general considerations, except in a background way, do not carry consideration of the case very far. The road to infraction of discrimination law, as to other places to be avoided, may be paved with good intentions. 58 It seems to me that the most important considerations are: Jacob's actual mode of communication, given his disability; what steps were put in place by the respondents via the model of support for Jacob's transition from primary school to the College; and whether further or other steps might desirably and reasonably have been implemented.

Jacob's mode of communication 59 The applicants submit that Jacob was Auslan dependent and, unless Auslan transition assistance were included in the model of support, he would be unable to participate in or effectively to receive classroom instruction. This view was supported by the evidence of both Mr and Mrs Clarke who said that it was essential for Jacob to have access to Auslan support to be able to communicate with others. Their hope is that this dependence may change in the future, as Jacob develops his English skills, but it was, at relevant times for this case, very much a matter of his needing to develop his education and his skills in Auslan before he could develop his skills in English. 60 Jacob also gave evidence. He said that he had relied on Auslan "a lot" whilst attending primary school and that Mrs Kerr gave substantial assistance in this respect. He indicated that he had also used hearing aids (with very limited success), lip reading and all aspects of signing (in addition to Auslan, he also used signed English, gestures and finger spelling). Mrs Kerr had done some note-taking for him, usually for the purpose of taking notes home. In year six, he only had signing assistance of a morning; after lunch he was required to use other methods such as lip reading or writing notes to the teacher. At Calwell High School he now has the help of a teacher's aide who uses Auslan. 61 Several assessment reports were annexed to affidavits. These indicated that Jacob relied on "total communication" to communicate; this included hearing aids, lip reading and all aspects of signing (signs, gestures and finger spelling) and that he required one on one assistance for interpretation of classroom lessons and activities. It is not the case, however, that, by using the totality of available means of attempted communication, Jacob successfully communicates without engaging in Auslan. Nor, in my judgment, is or was there any prospect of his being able to do so either quickly or without difficulty. The position would, at relevant times for judgment in this case, at least have been no better than that. Unless that is understood, the term "total communicator" is apt to be misleading. Jacob did not, in any adequate sense for most educational purposes, communicate without Auslan. 62 In addition, Dr Komesaroff, a distinguished student and advisor in this field, gave evidence in support of the benefits of Auslan and that Jacob's primary mode of communication was Auslan. She said that Jacob would struggle without Auslan assistance and that, because of his reliance on and familiarity with Auslan, it would be difficult for him to rely on other methods. In her opinion, signed English and finger spelling were not as effective or efficient: it is difficult to keep pace with spoken English whilst translating, due to its linear nature; lip reading was not a viable option because Jacob was not greatly skilled at it; and note-taking could only be an added service which varied from being "okay to appalling" depending on the skill of the note-taker and his or her knowledge of the subject. Even if the notes taken are very good, it is still, in her view, difficult for a deaf person to access information at the time the note-taker records it. Thus the delay between the lesson and being able to access the notes means that there is a major loss of context in taking in the information. I was impressed by Dr Komesaroff's evidence and, while she is an advocate of the use of Auslan over other methods of communication for the deaf, a comparative field with which this case is not concerned, I thought her relevant opinions sound and reliable and I accept them. If anything hangs on it I prefer her opinions to those of the respondent's expert, Dr Walker. 63 Thus, in this case, Jacob's parents were clearly right in their assessment of Jacob's short term needs. This is not to say that that would always be the case. Nor is it to overlook that there are people of academic distinction who advocate, as a policy, the education of the deaf either without signing or with signed English. Jacob's need at the time was for Auslan support.

Steps subsequently taken by respondents 64 The relevance of the steps taken by the respondents in respect of Jacob's proposed transition to the College is that they go to establish whether or not the respondents were seriously intending to provide Auslan support for Jacob. That in turn is clearly relevant to the reasonableness issue. Counsel for the applicant submits that there was a lack of tangible evidence to support such a view. The important evidence that should be taken into account is what was in the offer of enrolment and the attached model of support. These were the terms and conditions of which the Clarkes were made aware; little weight should be given to the evidence that the respondent's witnesses had not ruled out the possibility of sign language assistance and had taken some steps, including making enquiries about possible options. The applicant submits that the model of support clearly put forward note-taking as the primary support and that Auslan assistance was no more than a possibility. There was nothing in the offer of enrolment to suggest that the College accepted the need for Jacob to have signing support or that the respondents would embrace and actively seek such support. It was submitted that the evidence indicates, in reality, an absence of an intention to provide the support. 65 Counsel for the respondent notes that Jacob was assessed to be a total communicator in Grade five by Dr Walker. The emphasis in his IEP (Individual Education Plan) for the transition from primary school to the College was to develop his independent learning skills, the respondents by their agents, being aware that Mrs Kerr would not be available to assist at the College. 66 The respondents did not have ready access to Auslan signers in 1999. There was a shortage of trained Auslan signers and interpreters in the ACT. Dr Komesaroff's evidence was that it takes three years to become proficient in Auslan, and additional time to obtain interpreter qualifications. The respondents noted that twenty-four out of twenty-five deaf children with hearing impairments enrolled in schools administered by the CEO in 1999, all used communication methods other than signing or Auslan. 67 In my opinion, whatever the subjective intentions of various agents of the respondents, which intentions may have differed in direction, emphasis or firmness, there was scant prospect of the respondents actually providing any class room Auslan support for Jacob. It is against that setting that the reasonableness of the relevant requirement or condition must be judged.

Failure to call witnesses 68 The applicant noted that the respondents had, without explanation, not called a number of potential witnesses, in particular Sr Quinane (Principal of the College), who, the applicant alleges, made several statements at the pre-enrolment meetings which are relevant to the respondents' real (imputed) attitude towards the possible use of sign language support. Likewise, other persons from the CEO and representatives from Jacob's former primary school would have been likely witnesses if they supported the respondent's case. Counsel for the applicant submits that the Court should draw the inference that such evidence would not have assisted the respondent's case: Jones v Dunkel (1959) 101 CLR 298. 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 respondents. That confirms my view that Auslan support very probably would not have been provided for Jacob. I mention elsewhere the significant failure to call the primary school principal and Jacob's last primary class teacher.

Conclusions 70 The effect of the requirement or condition, as explained to the Clarkes, was, in reality, to oblige Jacob to enter high school without the assurance that the school would actively encourage the use of an Auslan interpreter for the subjects most demanding for him when taught in spoken English. If that requirement or condition had been accepted, Jacob would have been, for at least a substantial part of his school day, effectively a non-participant or at least, a very limited participant in the classroom experience: he would not have been receiving an effective education at all notwithstanding that Jacob is a bright boy with at least his fair share of adaptiveness. Being bright and adaptive, it may well be that, after an initial adjustment time, it would have been possible, as it were, to wean Jacob off dependency on an in-class Auslan interpreter. That may, in the event, also not have proved possible. In either case, it can be said with some confidence, in my view, that at least for a few months, little progress in that respect would have been likely. 71 Thus the nature and extent, the impact of the discriminatory effect of the respondents' requirement or condition would have been very damaging to Jacob's progress, indeed to his well-being. He was a vulnerable and needy child. 72 In my view, what explained the imposition of the requirement or condition were predominantly two factors. The first was a view to the effect that Jacob would need to get through adult life without an Auslan interpreter, if he should wish to participate in the world of hearing people (as his parents hoped), and further classroom dependence on an Auslan interpreter would be inimical to this. The second was a reluctance to make the adaptations necessary to accommodate the flexible and unusual arrangements likely necessary to keep a supply of interpreting services up to Jacob. In the latter regard, it would be necessary to: · have another adult in the classroom actively engaging in sign language, rather than, for example, sitting quietly and observing classroom activities and/or taking notes; · accept that, at least for a time, there might be more than one such adult so engaged; · cope with the ethical and legal difficulties of a number of non-teacher interpreters, including volunteers, coming into the school and being in Jacob's classroom; and · as a practical matter, rely on Jacob's parents for much of the organisation of the signing support for Jacob. 73 The view that Jacob should no longer depend on an interpreter was, on all the evidence before me, a wrong one. He could not simply forthwith cease such dependency. As indicated above, it is not enough that that view was wrong. The view was also, in my opinion, not a reasonable one. Jacob was quite dependent on Auslan. It should have been obvious to any adult that suddenly to separate him from that language in the classroom context would cause him distress, confusion and frustration: that is such separation would cause him harm. The situation was, as the respondents' agents should have known, not at all analogous to the immersion of a hearing speaker of a language into the milieu of another language with a view to learning the latter: Jacob cannot hear, his lip reading skills were limited, and his ability to draw inferences from the visual context was not well developed. 74 The reluctance to adapt can, in the circumstances of this case, fairly be described as both strange and unreasonable. All the evidence was that the primary school had coped admirably. There was no reason to think that high school teachers, pupils and administrators could or would adapt less well. It is true that the unavailability of Jacob's erstwhile main sign interpreter, Mrs Kerr, for his high school years, would have dictated a need for even greater flexibility, at least initially. But the unwillingness seriously to try to accommodate the position and to welcome the challenge, as these things may be judged from communications on behalf of the respondents to the Clarkes, stands in marked contrast with attitudes exhibited by the primary school, also run by the Catholic Education Office. Jacob was making the transition from primary to secondary schooling. In addition to the usual problems, Jacob would, as a deaf boy, have been encountering, many new fellow pupils of his own age and older would likely have scant experience of deafness. Childrens' range of generosity and kindness towards others with an obvious difference is, as a matter of common experience, at least as wide as that of adults. At best, Jacob was in for a trying time. Given Jacob's needs, the unwillingness to welcome Auslan interpretation for him was unreasonable.

The reasonable alternative 75 There was a reasonable alternative course available to the respondents. Analysed into legal categories, it consisted in part, of modifying the circumstances in which a requirement or condition which the respondents might have imposed would operate, and in part, of imposing a different requirement or condition from that in fact imposed. The alternative course was: · 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 respondents 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 respondents to provide Auslan interpreting assistance should fail, then the respondents might need to revert to providing only a note taker to help Jacob. 76 In reality, despite a seeming concession to the contrary by Mrs Clarke in cross examination, I think that the Clarkes, as reasonable people, would have accepted this approach. In any case, I think it would have been reasonable and it is the view of the judge constituting the court which is decisive. 77 I should add that to make this suggestion is not merely another instance of the omniscience of hindsight. The example of the primary school was at hand. The primary Principal and Jacob's class teacher were not called to say that a flexible, actively inclusionary approach to in-class Auslan interpreters was not possible or had ill effects for the school or class which outweighed the good effects for Jacob and the class. I conclude that such an approach and expressions that it would be followed were reasonably possible and would have had no net ill effects, as the Clarkes contended. 78 While there would have been difficulties in finding suitable Auslan interpreters, the Clarkes' own zeal and the evangelism for Auslan of many of its adherents meant that it was far from impossible to do so. Auslan was not merely used in rare instances by deaf people. Nor was it, to say the least of it, an unreasonable aid for a deaf pupil, nor was it in any way so special that it was incapable of being, at least partially, provided as a class room support for Jacob. 79 In the present case, financial considerations do not play a major part in the equation. Governmental grant funds were available for a teacher's aide (though not, it would seem, for the much higher rates which professional Auslan interpreters could command) for the number of hours per week per student as particular students' needs were reasonably (I assume) assessed. 80 Apparently such teacher's aide could be employed on any type of approved work. 81 While there were reasonable theoretical concerns held by the respondents as to possible future equity arguments if poorer parents in a like situation presented, Jacob was the only profoundly deaf child anticipated to attend McKillop in the year 2000. There would have been no real problem in accepting the Clarkes' contribution for that year. That would have permitted more time for consideration of what should and could have later been done. The CEO had its own "general funds" which were apparently available to pay for note taking assistance. 82 Thus the applicants have made out their case. It may be acknowledged that to some people this result might appear surprising. That is because this case does not have the connotations that the notion of discriminating against a disabled person has in ordinary language. But precisely defined statutory language governs this case. In IW v The City of Perth and Ors (1997) 191 CLR 1 at 12 Brennan CJ and McHugh J remarked that many anti-discrimination statutes define discrimination in a "rigid and often highly complex and artificial manner" and that conduct that would be regarded as discriminatory in its ordinary meaning may fall outside the relevant statute. This case may be an instance of the other side of that coin: conduct which is not discriminatory in its ordinary meaning may be caught by the statutory prohibition. As Brennan CJ and McHugh J said of the need to reject cases not caught by an anti-discrimination statute: "… courts and tribunals must faithfully give effect to the text and structure of these statutes without any preconceptions as to their scope" (at 15).

Damages 83 It was faintly suggested, on the strength of remarks made in a case decided by the Human Rights & Equal Opportunity Commission, that there were policy reasons why damages for a breach of the DDA should be substantial. It was also faintly suggested that an award should not be so low that it might be eaten up by non-recoverable costs. Both propositions must be rejected. Damages are compensatory and no more. 84 Fortunately, as matters transpired, the injury to Jacob has probably not been great: the injury to his parents' sensibilities may have been acute but the damages are not to compensate them. They are to compensate the "aggrieved person", namely Jacob. 85 Jacob would have been distressed and confused by the events in question. As a result of the respondents' proscribed conduct, he was effectively removed from the company of his primary school peers and friends on his transition to high school. Further and very significantly, these were friends who had learned Auslan. That would be very distressing. His transition was from a religious to a secular milieu, an added degree of change to cope with. As a child, it is very likely that he would and did register the respondents' attitude as one of rejection of him on account of his deafness, even though the disinterested adult can see that the position was much more complex than that. That would have been hurtful. 86 In the scheme of things, the harm to Jacob is likely to prove to have been transient and not extreme. There is no warrant to inflate damages. In my view $20,000 together with some allowance for interest on three quarters of that sum would be ample compensation. I assess such interest at $6,000.

Disposition 87 There will be judgment for the applicants in the sum of $26,000 plus costs. I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Solicitor for the Applicant: Gardini & Co Solicitors & Consultants

Solicitor for the Respondent: Howes & Kaye, Solicitors

Human Rights and Equal Opportunity Commission Act 1986(Cth)

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