THE APPLICANTS' EXPERTS
561 Apart from Dr Komesaroff and Ms Pardo, to whom I have already referred, the applicants relied upon two other academics - Professor Lane, a professor of psychology at a university in the United States and Professor Branson, an academic from Melbourne. The applicants also called people experienced in the education of deaf children. Two employees of Deaf Children Australia, apart from Veronica Pardo, were called. Ms Lynette Wilson is a psychologist and teacher of the deaf who has the responsibility of assessing the processing ability (IQ tests) of deaf children. Geoffrey Manton, the general manager of Deaf Children Australia, has had the responsibility within that organisation of placing deaf people in employment. The applicants also called Mr John Uri, who is profoundly deaf. He gave his evidence through an Auslan interpreter.
562 Like the respondent's expert evidence, the evidence-in-chief of those witnesses was tendered in affidavit form. All were required and presented for cross-examination.
563 The respondent's counsel endeavoured to establish that the academics and Ms Pardo were partisan and were using these proceedings for, what was put in cross-examination, political purposes. The political purposes were, it was suggested in cross-examination, the introduction throughout Australia of Auslan as the means of communicating with and teaching deaf children. For reasons I have given, I think that was one of these purposes. However, whether that purpose has devalued their evidence is a separate question.
564 Before I deal with the academics' evidence, I shall address that evidence which is uncontroversial and which, to a certain extent, I have already acted upon.
565 Ms Wilson, who I have already said is a psychologist and a teacher of the deaf, swore her affidavit on 31 July 2003. Ms Wilson examined both Benjamin and Tiahna for the purpose of assessing their IQ. At the time of the assessment, Benjamin was 10 years and one month old. His results in 11 different testing tasks showed him to be at an age equivalent to somewhere between a five year old and an 11 year old.
566 Tasks which relied heavily on verbal instruction were difficult or impossible for him due to his poor linguistic skills. Tasks which relied on non-verbal methods were completed much more easily and near to an age appropriate level.
567 Ms Wilson is fluent in Auslan but was unable to communicate with Ben in that language because of his lack of fluency.
568 She offered the opinion that, because of Ben's non-verbal scores which indicated that he was generally age appropriate, Ben's under-achievement in the verbal scores were as a result of his lack of fluency in any language. She said that his very low level language scores and low verbal knowledge were a direct result of the lack of opportunity he has had to access a sufficiently easy database of the whole language.
569 She offered these opinions in her affidavit:
'16. For Ben to improve linguistically, and therefore academically, I believe he must have consistent and extensive access to many users of a visual language such as Auslan. If Ben does not have this access, he will continue to perform many functions at a level far below his peers. This support should be given to him immediately, as he requires a huge amount of remedial work to assist him to make up for the learning he has missed. If he does not get this assistance immediately, I believe he will have permanent cognitive detriment. Not only does he need to be heavily involved in communicating in a sign language such as Auslan, but he also needs to watch others in conversation using a visual language such as Auslan. Even if Ben receives this assistance, I am uncertain whether his academic performance will recover.
17. If there is no change in the method of communicating to him in his educational facility, then it is very likely that by the end of his schooling, his self image will be that he is intellectually impaired, and he will be treated as such by others. This would very probably have a profound impact on his career and social life.'
570 Tiahna was assessed by Ms Wilson on 10 May 2003 when she was five years and three months old.
571 Ms Wilson assessed her intelligence quotient at between 98 and 108, focussing at about 103. Her verbal IQ was 98 and her performance IQ between 98 and 100.
572 Ms Wilson said that Tiahna's general scores showed that she was well up into the average range across all of her skill areas.
573 She said in her affidavit:
'8. I am informed that Tiahna's family uses Auslan with her at home.
9. Tiahna's good results, bearing in mind her hearing loss, reflect the fact that she has been able to access models of full and whole language in Auslan and English throughout her life, though I understand that this has been in her home environment and not from a child care or education setting.
10. I believe that for Tiahna to have the best access to a full education which will enable her to fulfil her potential, she must be taught by staff who use full and accessible Auslan in all its natural variations. She must also be able to continue to watch a wide range of users of Auslan in conversation.'
574 Ms Wilson impressed me as doing her best to assist the Court and I accept her evidence.
575 The general manager of Deaf Children Australia, Mr Manton, gave evidence of the difficulties which deaf people faced in obtaining employment. He has worked in the area of employment for deaf people for nine years and, during that time, has attempted to obtain employment for about 80 deaf people each year.
576 I accept his evidence that deaf people find it difficult to obtain employment. In particular, profoundly deaf people have significant difficulties in obtaining employment. Employers are reluctant to employ profoundly deaf people because the employers need to employ an interpreter so that communication can be established between non-hearing impaired people and the deaf employee. Employers are reluctant to be put to the added cost of a further employee simply to establish that communication.
577 I also accept, for no other reason than it is self-evident, that a profoundly deaf person, who has had less education than another profoundly deaf person, would face even more difficulties in obtaining employment. In his affidavit, which was sworn on 12 August 2003, Mr Manton said:
'18. For a person such as Benjamin Devlin, from reading the relevant material, it is clear that his access to education is compromised, and if he does not receive immediate and full access, the likelihood of him gaining tertiary qualifications is poor. In terms of him obtaining a university qualification, this would be almost impossible unless urgent intervention in the form of equal access occurs. This then will impact on his earning capacity for the rest of his life.
19. Insofar as can be predicted, I would expect that in the absence of a full recovery of his educated related skills by the end of his secondary education, Benjamin Devlin will suffer an economic shortfall in his earning capacity.'
578 John Uri, as I have said, is a profoundly deaf person. He is an Auslan tutor who teaches classes in Caboolture and Maroochydore.
579 In November 2002 Mr Uri attended the Noosaville Primary School, where Ben was then a student, at the request of Ben's mother to give a short presentation on deaf culture and the Auslan language. Gail Smith, Tiahna's mother, interpreted the presentation. Two teachers were present, Ms Mosely and Mrs Enders, neither of whom could understand him because they were not acquainted with Auslan. Both of those teachers later came to his Auslan class. Whilst they could communicate in some respects in Signed English, they could not communicate in Auslan. Ms Mosely and Mrs Enders did not claim to be proficient in Auslan.
580 Mr Uri also said that, as a deaf person, Auslan is the most appropriate way for teachers to communicate with deaf students. Auslan, he says, has been formally recognised whilst Signed English has not. He said that to become fluent in Auslan one has to study the language in a similar way to studying any other foreign language such as French or German.
581 I was impressed by Mr Uri as a person. However, his evidence was uncontroversial and did not advance the case one way or the other.
582 The speech pathologist and audiologist, Ronald Morris, swore three affidavits; two on 15 August 2003 (one in relation to Ben and the other in relation to Tiahna); and a further affidavit on 26 March 2004 also in relation to Ben.
583 Mr Morris offered the opinion that Ben had a profound, predominantly sensory-neural hearing loss; bilaterally tympanometry indicated the presence of middle-ear dysfunction on the right and significant negative middle-ear pressure on the left. He noted that Ben wore hearing aids and, as noted earlier, threshold testing 'indicates that Benjamin has access to all but the very softest speech sounds in ideal listening conditions at the distance of 1 metre from the speaker'.
584 Mr Morris assessed Ben's receptive language and Ben obtained a score of 22:
'… which suggests a severe delay/disorder in receptive language development. This score is equivalent to the 7th percentile for a year 1 child. Benjamin is experiencing significant difficulties understanding common everyday concepts such as:
Corner, row, whole, beginning, other alike, match, always, and before.
This would suggest that he would experience significant difficulties in following the language in a classroom environment. The Boehm [the test employed] was signed to Benjamin so this represents his best possible comprehension performance. Even if all of the instruction of the class was signed to him he would experience difficulty understanding and learning because of his very poor language development.'
585 Mr Morris also assessed Ben's expressive language and, on the Renfrew action picture test, Ben obtained an information score of 23˝:
'… which is well below the expected range for his age and represents an age equivalent score of 4 years and 5 months. Benjamin's score for grammar was 6 which is again severely below the normal range for his age and represents an age equivalent of less than 3 years.'
586 Assessment was made of Ben's semantic skills (vocabulary) and he obtained an age equivalent score of five years.
587 Mr Morris summarised his opinion:
'Benjamin presents with severely delayed/disordered speech and language skills. He is demonstrating both receptive and expressive language skills at around preschool level. His speech production skills are much poorer than one would expect given his degree of deafness and his measured aided thresholds.
Benjamin would not be able to cope with the language demands of a Year 5 classroom even if all the language was signed to him. Similarly his functional academic levels will also be determined by his level of language development. His difficulties of reading, especially for meaning, are consistent with his severe language impairment.'
588 He made the following recommendations:
'1. Benjamin return to fulltime use of his hearing aids since he will not be receiving language except via signing or speech without them. With his severe speech and language deficits every opportunity must be taken to learn speech and language skills.
2. Further speech perception testing be carried out at his next Australian Hearing review to exclude the possibility of sensory-neural distortion as a cause for his poor speech production skills.
3. Guidance Assessment be carried out (if not done previously) to identify strengths and weaknesses in his learning.
4. Further language evaluation to assess receptive vocabulary, receptive syntax and expressive syntax to assist in language programming.
5. Full assessment of listening skills.
6. Continued use of an IEP to direct learning in the classroom. IEP goals should reflect Benjamin's needs in language.
7. Speech therapy to focus on Benjamin's use of speech physiology and then on intelligibility. Speech therapy input into Benjamin's school language programme is also required.
8. Review of speech and language skills in 12-18 months to monitor his progress.'
589 Mr Morris carried out an assessment of Tiahna on 2 December 2002. Four language categories were evaluated; word meaning and vocabulary; grammar; comprehension; and appropriate use of language in different situations.
590 Mr Morris said that the assessment showed that Tiahna has basic language functions for spoken language within the normal range for her age. On his understanding, Tiahna existed in a good language environment because she was exposed to Auslan at home. She has developed excellent language skills due to early and consistent sign language input and he recommended that that continue.
591 He said:
'Given Tiahna's good oral language skills she can be expected to cope in a regular classroom environment but due to the degree of her hearing loss she would be unlikely to comprehend all of the instruction easily. She would require significant amounts of pre and post teaching to reach her educational potential if an oral only approach were used in the classroom. Tiahna would benefit greatly from access to signing in her classroom and as she has been exposed to Auslan from an early age this would be the most appropriate signed system to use with her. The provision of appropriate sign language support in the classroom will allow Tiahna to achieve at the level of her potential, without it she would cope but not reach her full educational potential.'
592 I accept Mr Morris' evidence in all respects.
593 Mr Morris' evidence was not only important for the purpose of assessing the two children individually but his evidence allows for a comparison of their levels of achievement.
594 Ben has at least average to above-average cognitive ability. That was established by Ms Macdonald's report in 1998. However, compared with Tiahna, his level of achievement is significantly less in all respects.
595 Tiahna has been in an environment where Auslan is a first language. Its benefits seem to be established by her achievements.
596 Wendy Wallis has a profoundly deaf son, Levi, who, at the time of swearing her affidavit on 4 December 2003, was in Grade 7 at Warwick East State Primary School. She said she became aware of the benefits of an Auslan education and spent some time lobbying Education Queensland to provide her son with the services of an Auslan interpreter. She said they responded to her requests only when she threatened to go to HREOC and to Court. Education Queensland then assigned an Auslan interpreter to Levi for 22 hours per week. Notwithstanding Education Queensland said that it would monitor Levi's progress, it has not done so.
597 Ms Wallis said the provision of an Auslan interpreter has been of considerable benefit to Levi. He has learned the English language at school. He still has trouble with English words but she expects him to be at the same level as his hearing peers when he leaves primary school.
598 Not only has it helped him in his education but it has also helped him in his social interaction with his peers. Many of his hearing friends have been taught Auslan signs by Levi and they communicate with him in that fashion.
599 Ms Lawrence addressed what she described as the 'Warwick project' in her evidence-in-chief. She said:
'145. In 1995 the issue of presenting Auslan as the method of instruction in programs for deaf/hearing impaired students had been discussed. However, the need of deaf/hearing impaired children to develop fluency in writing and reading in English for educational and vocational purposes was considered to be a high priority for any child. At that time, the proponents who supported the use of Auslan as "S"'s first language and English as "S"'s second language had not documented well the transition phase for such children. Supporters of Signed English argued that the child must be immersed in the visual presentation of English in order to gain English literacy skills.
146. In 1995, permission was sought, through the Deputy Director-General (Curriculum) for preliminary discussions to occur between officers from the Student Disability Unit, Assistant Coordinator, Low Incidence Unit and Assistant Director (Studies), Darling Downs Region concerning the possibility of developing a small research project to examine the use of Auslan for "S" in the classroom environment. The situation that we sought to create in Warwick was never considered to be a bilingual-bicultural program.'
600 She said, however, that there were special reasons why the child should receive full-time teacher aide interpreting in Auslan. She identified those circumstances:
'150. There were a number of circumstances in this particular case that supported the proposal that "S" receive full time teacher aide to interpret. These circumstances included the following:
(a) the family's commitment to the use of Auslan;
(b) "S" was a "one off" case in a particular setting;
(c) the involvement of Griffith University. The University could provide valuable information for the Department about the matter of Auslan used within schools.
(d) the fact that Warwick is relatively small and distant from Brisbane (and so provision of any service to a significantly deaf child would be problematic);
(e) there was no bilingual-bicultural program in Queensland at the time. The literature that was coming through supported the use of Auslan in a bilingual-bicultural setting. The bilingual-bicultural program in Sydney had been introduced.'
601 Ms Wallis' evidence did not advance any party's case.
602 Professor Lane has a Master of Arts in Psychology and a Doctor of Letters in Linguistics. He has published extensively both books and papers. He has lectured around the world. He gave his evidence in a straightforward and direct fashion. He was not defensive, nor did he appear in any way threatened by cross-examination.
603 Professor Lane is currently the University Distinguished Professor at North-Eastern University in Boston, a position he has occupied since 1988. He has received a number of honours from different institutions, all in relation to his association with the education of deaf children.
604 His evidence was quite unambiguous. He said in an affidavit sworn on 18 August 2003 in relation to Ben's case:
'4. There is no doubt that the most accessible language for deaf children such as Benjamin is the national language of the Deaf; in Australia, this is Auslan. Because this boy is profoundly deaf, he has no usable hearing for oral communication; he is a visual child, and Auslan is a visual/spatial language, and therefore it is the language most comprehensible to deaf people like Benjamin. Research shows that Deaf children who acquire signed language early have an advantage in school over their peers who do not. Furthermore, fluency in signed language and fluency in the national written language are strongly correlated.
5. Signed English is a signed code of English; it is not a natural language. It was invented in an effort to help Deaf children learn English but solid evidence is lacking that it accomplishes that. It is not suitable as a form of communication and is not used as such by Deaf adults or Deaf children outside of class. Total communication is not a language but a strategy for classroom communication that calls on the teacher to use a national signed language among other means. Teachers who are not fluent in signed language fall back on signing strings of individual signs in English word order without the grammar of the signed language. This is largely unintelligible to Deaf children.'
605 Professor Lane said that Ben ought to undergo formal and informal instruction in Auslan to raise his level of competency. That could be done by having Ben associate with deaf children and other deaf people.
606 He said:
'11. Benjamin who is 10 has a non-verbal IQ of a 10 year old, yet he is failing in school and has no language, neither English nor Auslan, with which to communicate and socialize. This can be remedied with two measures: first, ensure that he has extensive contact with other Deaf children and Deaf adults so that he acquires Auslan as quickly as possible. Second, use Auslan as the language of instruction with Benjamin. Without these measures, we must expect that his outcomes will diminish even further over the course of his education.'
607 He gave similar reasons for why Tiahna should be instructed in Auslan. He said of Tiahna:
'6. Tiahna should have formal and informal instruction in Auslan to maintain and develop her competency, including associating with Deaf children of Deaf parents, who acquire Auslan as a native language and with other fluent users.
7. If Tiahna cannot have teachers who use fluent Auslan, then she must have interpreters who are fluent in Auslan, so that she can understand the teacher and can participate as fully as possible in her education.'
608 Professor Lane was cross-examined on those affidavits and also two further affidavits which he swore in answer to the respondent's expert.
609 It is not necessary to go to those further affidavits in any detail. They identify the argument which is central to these proceedings and Professor Lane's own opinions which are summarised in pars 4 and 5 of his first affidavit in Ben's proceedings.
610 In cross-examination, Professor Lane agreed that there were still schools in the United States who used Signed English as a method of communication with deaf children. He does not agree with that method of instruction. He accepted that there were others who held different views.
611 Importantly, Professor Lane accepted that there has been an evolution of scholarly opinion in relation to the best method of communication with deaf children. He was asked and answered:
'You are giving this affidavit, I suggest, as being of general application, that is, in the United States and in Australia you're suggesting it is worldwide. Was that what you intended to convey in paragraph 32?---Yes. I did not intend it to convey that throughout the world you'll find these discredited practices abandoned. I'm sorry to say that's not the case. What's been abandoned is the views of informed scholars, teachers, educators, psychologists and others, who at one time believe aural education was the way to go and then believed total communication was the way to go and then believed signed English was the way to go and now appreciably believe that fluent communication with the child is the priority and that's the way to go. So there's been an evolution in scholarly opinion, and slowly re-educational system, very slowly, evolves in that direction, more quickly in some countries and very much more slowly in others.'
612 He also accepted, as I have said, that over a period of time different views have been held by academics and by educators in relation to the best method of teaching deaf children. He said that the debate has been galvanised by those people recognising that all of the methods used, including Signed English, have not been successful in educating deaf children.
613 I accept Professor Lane's evidence that academics and educators have gradually changed their views as to the best method of teaching profoundly deaf children. It has been an evolution.
614 In my opinion, his evidence does not markedly differ from that of Professor Power or Ms Lawrence. All of them recognise that there has been a march towards Auslan. All of them recognise that, even now, some academics and educators do not accept Auslan as the preferred method of communication but would still argue for communication in Signed English. All of them are agreed that that group is diminishing.
615 Professor Janet Branson is a Professor of Education and Director of the National Institute for Deaf Studies and Sign Language Research at La Trobe University. She has held that position since 1996. She has been involved in the academic study of education for 40 years. Since 1990, she has focussed her research and academic work generally on the education of deaf people. She has a special interest in that subject because her daughter and her son-in-law are both profoundly deaf.
616 Professor Branson has an extraordinarily impressive academic history. She has been a teacher in Universities since 1971. She completed her PhD in 1976. She has taught in China and the United States of America and has been an Honorary Professor of a University in Thailand.
617 Professor Branson is not only an academic and a teacher but she is also a researcher and she has carried out a number of research projects both in Australia and overseas. She has written two books and another one is pending. She has published numerous articles and produced numerous videos.
618 Professor Branson also established the National Institute for Deaf Studies and Sign Language Research. She has secured nearly $2 million in grants for research and curriculum development, including the writing, filming and publication of the 'Auslan Curriculum for First and Second Language Users'. She has conducted research on the linguistics of Auslan and on the history of the use of sign language in Deaf Education in Australia, Britain, the United States and Thailand, and published the results of her research. She has researched and published on the sociology and sociolinguistics of deaf communities in Australia, Britain, Thailand and Indonesia.
619 Professor Branson not only has an impressive list of achievements, she was also an impressive witness. Her opinion was that Signed English is an inappropriate medium for the education of deaf children. Signed English, she said, reinforces the control over the lives of deaf children via linguistic and cultural deprivation. Signed English deprives deaf children of a language and a culture by seeking to assimilate those children into the hearing world via the use of English. English is an aural language which requires the ability to hear for successful use. Whilst Signed English may give some understanding of the English language, that understanding will always be limited and partial. That is because Signed English, itself, is not a language. It is not used within the deaf community. It does not have any of the natural dynamics of a natural language. Signed English users are often isolated from their own deaf community. Signed English can create confusion. Signed English is based on the grammar of written English, not spoken English. Thus, in ordinary conversation, Signed English does not accompany spoken English, because Signed English is structured in a different way than spoken English.
620 Her evidence was that there was a substantial amount of theoretical and empirical evidence that Auslan is the most effective media of instruction for deaf children. There is corresponding evidence in other countries that native sign languages in those countries are the most effective media.
621 She said that there is a need for deaf children in Australia to be educated in Auslan from birth. That is already the case in Sweden and Denmark, and research in those countries show that those deaf students using their national sign language as their first language, and the language of instruction, effectively access spoken languages as a second language.
622 She said that research shows that the acquisition of a native sign language as a first language for deaf children is basic to the acquisition of a second language, such as English, and to education generally.
623 She said that most academics and teachers of the deaf share her opinion, that is, that the only appropriate medium for teaching deaf students is Auslan.
624 As I understood her evidence, the majority of those people have shared that opinion since some time in the middle 1990s in Australia.
625 Professor Branson assessed both Ben and Tiahna.
626 It was her opinion that Ben has been deprived of the language and culture which would best meet his social, emotional, linguistic and cognitive needs. As a result, Ben is significantly below his peers in relation to language and cognition and was unable to engage in tasks appropriate to children of his age. She said that she was unable to engage him, either through the use of Auslan or English-based signing or speech, in a range of activities including story-telling, simple mathematics and puzzle completion.
627 She said that Benjamin's poor linguistic and educational outcomes are consistent with the findings of research on deaf children educated through total communication methodologies. She said that Benjamin's linguistic and cultural needs should be recognised by giving him complete access to Auslan, by way of remedial program, to bring him up as close as possible to his peer equivalents, as well as Auslan through his schooling to meet his access needs.
628 It was her opinion that Ben needed to have access to an education which was based on bilingual principles with Auslan as his first language and English as his second language.
629 She said that total communication is a philosophical approach to teaching deaf children which, inevitably, has an inadequate outcome.
630 Professor Branson met with and observed Tiahna in May 2003 over the course of one and a half hours. She said that Tiahna demonstrated competencies consistent with someone who has been exposed to Auslan as a first language from birth. She said in an affidavit sworn on 7 August 2003:
'25. … Given her family background (deaf grandparents, bilingual mother, father a second language learner of Auslan), her parents and extended family have provided her with the optimum environment for age appropriate linguistic and cognitive development.'
631 She observed that Tiahna expressed a preference for oral expressive communication and a preference for signed receptive communication. This, Professor Branson said, was consistent with research into bilingualism in deaf children. She said that Tiahna's preference for speech with hearing people should not be taken as a positive reason to support a monolingual English-based education for Tiahna. The preferences which Tiahna exhibits are a direct outcome of her bilingualism because she has the ability to choose the form of communication best suited to a particular exchange. She said:
'28. Despite the progress Tiahna has made with speech, she remains severely hearing impaired. This means that she will not access classroom communication through auditory means alone. There can be no question that Tiahna requires an accommodation of that hearing loss. Based on my own research in this area and that of my colleagues both within Australia and internationally, the nature of that accommodation should be consistent with Tiahna's needs, that is, a signed based bilingual education.
29. Signed English should not form the basis of the accommodation of Tiahna's educational needs. To begin with, Tiahna does not use Signed English. She already has access to a sophisticated language system on which she has founded substantial competencies. In addition, Signed English will not meet her access needs as efficiently and effectively as Auslan. A continuation of her bilingual status via Auslan as a first language and English as a second language will best meet her social, emotional, linguistic and cognitive needs.'
632 In her cross-examination, Professor Branson said that she has held the opinion that children should be educated in Auslan as a first language for more than 15 years.
633 She said that when she first formed that opinion there was a growing consensus amongst academics that deaf education should proceed in that fashion.
634 It is apparent from her evidence that the impetus for change arose in the United States. In her evidence she said:
'Well, were there any educators who supported the opinion you've expressed today, 15 years ago? I'm dealing now with educators, not academics?---Oh, yes. Yes. There certainly were teachers in the schools and there was a gradual - a slowing ground-swell in some of the schools to begin to change the academic practices. At the same time, you have to remember, in America there was a very strong deaf rights movement. And we're looking at the period where we had black rights, women's rights and then disability rights. And out of those disability rights, the deaf began to identify as a community and as a group who could make sense about their language and their culture, which they'd never been able to before, because nobody would listen to them. And so they began to impact on education. They began to demand that - that, in fact, they should have had a better education, that they should be able to read and write properly. They should be able to have good jobs the same as everybody else. And so the older deaf felt very much that they had been cheated out of their schooling, and so they very strongly began to support his move. And some of the moves came from the deaf community itself and at Gallaudt University in America, which is the only "deaf university" - in inverted commas - in the world, the president, in fact - when the new president was chosen, they chose a hearing person - and the students, in fact, got up in arms and that person had to resign and they had a deaf president. And that president is still there now. So there's been a - if you like, a continual ground-swell, and I think one of the best things that's happened is that there's now a much stronger liaison, particularly in Victoria - I can't talk about Queensland - where the deaf community themselves support very strongly many of the teachers in the schools, and we've just, in fact, completed for the Ministry of Education down here, a retraining program where virtually all teachers of the deaf have come back and retrained in Auslan. Because when they did their training, there was no Auslan. And we're seeing an increasing number of deaf students coming into University now at the undergraduate level. We're seeing them coming in at special entry. We've had three full complete masters degrees by research now. We've got out [sic] first two PhD candidates, which is fantastic. We would never have seen that 15 years ago.'
635 She was then asked and answered:
'Professor Branson, has it now reached a stage throughout Australia that in education circles educators subscribe to your opinion?---Well, I don't move in all the educational circles, I'm afraid, in Australia. But I can only speak from what I know of it in Victoria and in Victoria the Department of Education is very strongly supportive; interpreters are provided in schools. We provide now - Auslan is taught as a subject to schools from very early on and at the University itself we provide programs for parents, for doctors, for psychologists who wish to in fact - to be able to deal with deaf people in their first language. So there will always be some educators who don't agree, who will hold on. But in the long run there has been enormous change of opinion and the results are speaking for themselves.'
636 Professor Branson said that in Victoria now there is definitely a majority of educators who would accept the view that Auslan is the best language for education of the deaf. She was not able to speak of the educators in Queensland.
637 She said that there is a considerable lead time required to educate sufficient teachers in Auslan. She said:
'Well, yes, because the requirements are set by the State Departments of Education and that is a three year undergraduate degree plus a one year post-graduate diploma or a four year Bachelor of Education. I mean, some people elect to do additional Bachelor of Educations but that's the same regardless of whatever you teach.'
638 She would not agree that a consensus had not been reached in the mid 1990s or that the debate was ongoing.
639 Dr Komesaroff gave her evidence-in-chief in a somewhat unusual way. She exhibited to an affidavit in both matters her curriculum vitae and a copy of her thesis which was submitted for her degree of Doctor of Philosophy.
640 Dr Komesaroff is a lecturer at the School of Social and Cultural Studies in Education at the Faculty of Education at Deakin University. In 1979 She obtained a Diploma in Teaching at Melbourne State College. In 1988 she obtained a Graduate Diploma in Literacy and Language Education from the South Australian College of Advanced Education. She is accredited as an Auslan Level 3 interpreter by the National Accreditation Authority for Translators and Interpreters (NAATI) in 1992. She obtained a further Graduate Diploma in Special Education from the Deakin University in 1994. She was admitted to the degree of Master of Education at Deakin University in 1995 and obtained her Doctorate in Philosophy in 1999.
641 As already indicated, she is a lecturer at the Deakin University. She is also an educational consultant and schools consultant. She describes herself as a primary teacher and an adult literacy educator. She is a professional interpreter in Auslan.
642 She is a member of a number of professional associations including:
Australian Language and Literacy Educators Association
Australian Teacher Educators Association
Australian Association of Researchers in Education
Australian Association of the Deaf
Victorian Association of the Deaf
Australian Association of Teachers of the Deaf.
643 Dr Komesaroff has written a number of publications relating to education and, in particular, education of the deaf.
644 Her thesis was submitted in October 1998. It provides a summary:
'This thesis argues that issues of power, control and legitimacy are central to language practices in deaf education. It documents the competing beliefs and attitudes about language practices held by teachers of the deaf, policy-makers and other stakeholders in deaf education. Barriers at the system, school, and staff level perpetuate instruction through English and restrict the introduction of Auslan, the language of the Deaf community.
The main case study provides evidence of the way in which change can be achieved. Teachers' dissatisfaction with student outcomes and established practices provided a strong impetus for the adoption of bilingual education. The language practices of most teachers of the deaf and the approach taken to teacher education is challenged by this research. This thesis argues for a redefinition of deaf education based on a cultural perspective of deafness, an approach supported by bilingual theory and consistent with the movement amongst the deaf towards self-determination.'
645 She also provides an abstract in the thesis which is worthwhile reproducing:
'This study takes place at a time of increasing interest in Auslan, the language of the Deaf community in Australia. There is a movement in deaf education nationally and internationally supporting bilingual education for the deaf based on the view that deaf people belong to a cultural and linguistic minority. In Australia, an increasing number of schools include Auslan as an additional subject in the curriculum and bilingual programs have been introduced into several schools during the 1990s. Established language practices, in particular oral education and contrived systems such as signed English, have attracted significant criticism from a growing number of educators and researchers. The underachievement of the deaf in education has added weight to their argument for change.
The main body of data in this study includes a review of the literature concerning language practices and bilingual education, interviews with teachers of the deaf and other stakeholders in deaf education, and case studies of three educational sites. Participants' beliefs and attitudes about language practices provide evidence of the competing paradigms in this field. A system which is dominated by hearing educators who deny or marginalise the language and culture of the Deaf has constructed Deaf people as disabled. The perspective of bilingual educators is that the deaf belong to a cultural and linguistic minority and their language and culture are positioned as central to deaf education. This thesis considers the political nature of education and the relationship between language and power evident in deaf education.
This thesis contends that the language policy and practices that dominate deaf education reflect the values and interests of hearing professionals and are based on beliefs that cannot be supported by language learning theory or the experiences of deaf people. The rhetoric surrounding communication method masks the underlying conflict over language use. It is no longer adequate to view the debate as either modal, a question of using oral or signed language, or methodological. The political nature of language practices in deaf education has been identified in this thesis by comparing the beliefs underlying the dominant and marginal discourse in deaf education. The three case studies highlight the difficulties facing teachers who want to adopt new practices.
Language practices continue to be debated in the literature on deaf education. Although there is now widespread acknowledgment of the legitimacy of deaf people's language and culture, the adequacy of native sign language to enable deaf children to acquire English literacy is still argued by many educators. Support for bilingual education in the Australian literature has grown, although some researchers continue to support signed English despite the considerable criticism of this approach. Auslan is viewed by some as a possible addition to the curriculum and not incompatible with established practices. Several teachers and educational administrators in this study expect instruction to continue through the simultaneous use of spoken and signed English, with or without the addition of Auslan as an ancillary subject.
An analysis of the data has identified the personal and structural barriers to a change to the language policy and practices which dominate deaf education. Without proficiency in Auslan or knowledge of bilingual pedagogy, teachers of the deaf have little option other than instructing through English. Some teachers in this study who have questioned established practices are forced to continue teaching through signed English in the absence of other language skills. These practices are entrenched in deaf education because there is little or no instruction in Auslan in teacher education, on-going professional development programs, or requirement for teachers of the deaf to be proficient in Auslan. State, national and international organisations of Deaf people call for changes to deaf education, but the views of Deaf leaders are largely ignored. This thesis views the situation of the deaf as an example of a minority community oppressed by a dominant group through the medicalisation of deafness and denial of language rights.
A significant contribution of this thesis is the description and analysis of two school communities which achieved change to their language policies. One has an established bilingual/bicultural program for deaf students; the other investigated and embraced bilingual education during this study. Teachers' dissatisfaction with student outcomes and established practices in deaf education provided a strong impetus for change. In both cases, a change in language policy was legitimised and supported by senior teachers of the deaf. In the main case study, teachers and parents sought an understanding of Auslan and bilingual pedagogy and I provided a model and explanation of these practices. The importance of parent education and professional development for teachers of the deaf was highlighted in this study. I documented my approach to working with parents and teachers, and discussed their changing practices and beliefs. In all case studies, the need for professional development for teachers of the deaf and access to native language models through the employment of deaf staff has been identified.'
646 The thesis itself demonstrates, as the abstract shows, that at the time of writing there was increasing interest in the language of the deaf community in Australia, namely Auslan.
647 The thesis itself further demonstrates the passion which Dr Komesaroff exhibits as an advocate of the introduction of Auslan as the preferred method of communication with deaf students in Australia. It also shows Dr Komesaroff's disdain for the use of Signed English as a method of communication with deaf children.
648 As the abstract shows, the thesis was written during a time when there was 'a movement in deaf education nationally and internationally supporting bilingual education for the deaf based on the view that deaf people belong to a cultural and linguistic minority'.
649 That statement is consistent with the evidence of Ms Lawrence and Professor Power that during the late 1990s there was such a movement which recognised advantages in bilingual education for the deaf. Of course, they said that the movement was wider than bilingual education as it included a bicultural aspect. It is also not inconsistent with the evidence of Professor Lane and Professor Branson.
650 The abstract also recognises, as did the other academics, that not everyone agrees that a native sign language will enable deaf children to acquire English literacy. As Dr Komesaroff has said in her abstract:
'Support for bilingual education in the Australian literature has grown, although some researchers continue to support signed English despite the considerable criticism of this approach.'
651 More particularly, from Dr Komesaroff's point of view, the abstract shows and the thesis supports her opinion that the use of teaching deaf children through Signed English is entrenched in deaf education for the reasons set out in that abstract.
652 She is a fervent critic of teaching in Signed English and she makes that point time and time again in her thesis.
653 Dr Komesaroff's view is that the perpetuation of education of the deaf using Signed English continues to disempower the deaf and fails to recognise the deaf as a minority which has its own language and culture. No change will occur whilst the present educators of the deaf continue in their roles, because they do not have the language of the deaf, namely, Auslan.
654 She is of the opinion that it is necessary, therefore, to change the system rather by way of revolution rather than evolution and to impose upon the educators an obligation to instruct deaf children in Auslan.
655 She is a vociferous campaigner for such a result.
656 It was submitted that I should scrutinise Dr Komesaroff's evidence carefully because she is a passionate advocate for the adoption of Auslan as a mode of instructing deaf children. The same submission was put in relation to all of the applicants' experts, including Professor Lane, Professor Branson and Ms Pardo. I reject the submission insofar as it relates to Professor Lane and Professor Branson. I accept it in relation to Dr Komesaroff and Ms Pardo.
657 In Chapter 1.2 of her thesis Dr Komesaroff wrote:
'Deaf education in the 1990s in Australia has seen Auslan introduced into some schools and a growing number of bilingual programs established. The rhetoric in most states is that parents are provided with a choice of communication methods in a variety of educational settings. Deaf education, however, continues to be dominated by educators who are, almost exclusively, hearing and lack competency in Auslan. The language which continues to dominate deaf education is English. There has been little acknowledgment by most educators that established practices conflict with bilingual theory or the movement among the Deaf towards self-determination. The establishment of bilingual education has begun in Australia, preceding the recruitment of Deaf adults into teacher education or structured professional development programs in Auslan and bilingual pedagogy. If Australia is to follow the trends in other countries in adopting bilingual/bicultural (BiBi) education for deaf children, major changes in teacher education will be needed. In this thesis, I argue for a redefinition of deaf education based on a cultural perspective of deafness.' [Footnotes omitted.]
658 In Chapter 2.8 of her these (at page 28), Dr Komesaroff writes:
'There is disagreement in the Australian literature over the efficacy of language practices in deaf education. While interest in Auslan and bilingual education grows, some researchers and educators still support signed English. By the time Auslan was recognised as a community language in the late 1980s, signed English was already entrenched in deaf education in Australia. This section describes the arguments put forward on both sides of the debate.'
659 Dr Komesaroff then discussed a study by Professor Hyde and Professor Power in 1991 who concluded that it would be premature to abandon Signed English.
660 She traced the further studies since that time, identifying, I think, exactly the propositions put forward by Professor Power and Ms Lawrence that in the 1990s there was a movement toward the adoption of Auslan as a method of communication with deaf children.
661 Her study, it seems to me, identifies the caution which educators of the deaf have shown in adopting the radical approach, at least for them, in jettisoning Signed English as the method of communication and adopting Auslan.
662 Her thesis is replete with references to the continuing debate about the advantages of the different forms of signing in educating deaf children and the increasing awareness amongst academics and educators of the deaf of the benefits of Auslan.
663 Indeed, in Chapter 10.6 (at page 207) she wrote:
'The central argument in this thesis is that deaf education suffers from the monolingual/monocultural perspective of educators. As a bilingual researcher, I can view the debate from both an English-only and Auslan perspective. Having acquired more than one language other than English during my primary and secondary education and having acquired Auslan in my late 20s, in which I am now qualified as a professional interpreter, I can appreciate the task facing teachers and parents learning a new language. There is an urgent need for more research which is grounded in the perspective of the Deaf, this study representing one of a small number of doctoral dissertations carried out by researchers fluent in Auslan and involved in the Deaf community in Australia (see Johnston, 1989b).'
664 Whilst Dr Komesaroff denied in cross-examination that she was an advocate for Auslan, but I reject that denial.
665 In my opinion, Dr Komesaroff is an advocate for the introduction of Auslan and is anxious to have Auslan adopted as a method of communication with deaf children.
666 Everything she has published, and which has been put before me, shows her to be an advocate. If her advocacy is a result of her research and her observations as an educator of the deaf, that does not make her any less an advocate.
667 Dr Komesaroff was not a good witness in cross-examination. She made the mistake of attempting to debate with the cross-examiner. She avoided answering questions by redefining terms. She was evasive on matters which she saw as not supporting her position.
668 I will give an example, although her cross-examination contains similar examples:
'Yes, you do, and we'll come to that, but for his Honour's immediate understanding, in the state education systems across the Commonwealth of Australia, there is no state that adopts teaching hearing impaired children in Auslan as the norm, is there?---No, that's not correct. Tasmania, all deaf children who are sign language users in Tasmania, in fact, receive bi-lingual education.
That wasn't my question. There is no State Education Department across the Commonwealth which has Auslan as the norm of teaching hearing impaired children, is there?---I'm a little unsure by your meaning of norm, whether you're saying that's the largest number of children that are taught in that way?
No. That is the way, the ordinary way, in which they teach hearing impaired children in the classroom?---I think Tasmania is close to being the norm. Yes, I do. In that all the signing children have access to bilingual education.'
669 She had no difficulty with the question in the first instance and the use by the cross-examiner of the word 'norm'. When the question was put again she took issue with the use of the word, but in the third instance repeated her answer given on the first occasion.
670 A further example in her evidence of her difficulty in coming to terms with questions put is contained in the following exchange:
'We're talking about two approaches. One is that you rely on English and you speak to a deaf child through English, which is the dominant language of teachers and the community around you, or you embrace and understand and accept that the deaf community has its own language, which is Auslan, and then there's an approach for using that which is called bilingual education. So if you look at it from a language perspective, which is where I'm coming at this from, being an expert in language, you have two approaches, either English, which you speak to a child, or perhaps add some signs and signed English to, or you use Auslan, which is a foreign language to the hearing teachers. It's not a foreign language to deaf people.
HIS HONOUR: You say there are two approaches. Do you mean by that they're mutually exclusive, when you say there's no continuum?---Yes. I do. Yes.
Well, is that true in all regards? Where a child is partially deaf, may that child be better treated - taught on the auditory verbal approach?---I think - my own - my learning from what's happened in other countries is if a child needs any support at all, if they can do fine in the hearing world in schools, etcetera, without any support and they're not going to struggle, then auditory verbal or to just remain in the hearing world is accepted that that's fine, they can do that. If they need any support at all - they're going to struggle in any way, they're better off to be taught through an approach that gives them full access and they can also have the ability to develop some speech and lip reading and hearing as well. So it's an additive approach rather than saying can they do without Auslan and struggle to get through using auditory verbal. It's saying let's make sure they have full language access through Auslan or a native language, plus they may be able to develop speech and lip reading.
Does that mean that a child who is able to hear better with the aid of hearing aids but not hear perfectly should be taught the Auslan method?---That's what's happened in country - - -
I was just asking - I'm not asking - - - ?---Yes.
Yes or no. Yes or no will do?---Yes, I think if they're going to struggle at all and they're liable to miss information, yes, they're better off to have full access to a language with ease and to have it as an additive process so that they have access to two communities and two avenues of gaining information.
They're primary education in all respects, the child that I've just postulated to you, should be by Auslan method?---The primary approach.
The primary method of teaching them should be Auslan?---I would have thought so, yes. Again, we're talking - it's hard - it's so individual to a child as to generally - it becomes fairly obvious when you meet and communicate with a deaf child how much they require and use and are naturally a user of a sign language.
But I've asked you to assume that the child we're talking about is a child whose hearing is improved with hearing aids, but the hearing is not perfect. Just assume that to be the child?---Yes.
I understand your evidence to be that that child should be taught using the Auslan method?---If their hearing is such with the - the aided hearing is still causing them problems to understand information then, yes.
I'll give it to you again. The child I've postulated is a child who is deaf but whose hearing is improved by use of aids - hearing aids - but his hearing is not perfect?---With aids it's not perfect?
Yes, with aids?---Yes, then I would say then that then to have access to Auslan and English - - -
Well, I - - - ?--- - - in terms of speech is - - -
Please, if you could let me ask a question, if you wouldn't mind. Let's assume that to be the child. Should that child be primarily instructed through the Auslan method?---It's - it's very difficult to say in a - - -
Why is it difficult?--- - - in a hypothetical situation like that. To me it depends on what the child is most comfortable with, what they're exhibiting they're able to take up. They may - they may be - show much - it depends on the degree of difficulty that they're having. It's - I think it's much easier to talk at the extremes of it if we're talking in theory.
Of course it is, but that's Mr Bain's point, isn't it, and that's what you deny. You say there is no continuum?---There's no - I'm saying that there's not a continuum in method. We're now talking about children's hearing loss which clearly there is a continuum from very deaf to some deafness.
As I understand your evidence to be, you say that you either teach the children English in whatever way you do or alternatively you treat them - you teach them Auslan?---You teach them bilingually or in English only - monolingually or bilingually, so you teach - - -
But when you're teaching them through the Auslan method, that is the primary source of education - the primary way of communicating with the children?---Yes.
Are you able to say whether or not that's the appropriate way of teaching the child that I asked you to assume existed?---I don't think I'm able to say, I don't think, without knowing more about the child. I don't thin it's possible to say that.
Might it be better for that child to be taught english, through signed english or english?---Signed english would suggest that child needs sign language. If they needed sign language, I would be advocating more for Auslan than signed english, yes.
Well, there's never a case, do you say, where signed english would be appropriate together with english as a method of teaching children?---No. That's - it's - it's really lost favour. If anything, people who are - no.
Careful - lost favour - please, would you address my questions. I'm asking you what your evidence - I don't care what anyone else's - - -?---No, no. There's only - - -
Just a minute - do you say that there is never a case where a child needs signing of any kind, that signed english plus english should be used in preference to Auslan?---No, not signed english. No.'
671 Dr Komesaroff was not prepared to acknowledge any form of education of a profoundly deaf child other than through Auslan. Clearly enough, from that evidence, Signed English would never be appropriate. If the child needs any support at all, it was her evidence that they should be taught in Auslan.
672 In cross-examination, she promoted her view that teachers of the deaf continue to communicate in English and in Signed English rather than in Auslan because they cannot communicate in Auslan, and by communicating in the form that they do they empower themselves and disempower the deaf child.
673 Moreover, she reiterated that view in par 33 of her second affidavit, which was sworn in answer to the affidavits of the respondent's experts where she said:
'In my research and experience, I have found that people who reject the use of Auslan in education almost exclusively lack any proficiency in this language. It appears that their decision to educate deaf children through English has more to do with their hearing status and language skills rather than pedagogical reasons. Their rejection of Auslan can be charged as self-serving as the continued use of English in education (in the absence of teachers' Auslan skills) maintains their positions in deaf education. On the other hand, there are many examples of hearing teachers who have acquired Auslan as a second language; and although native speakers and proficient in English, support the use of Auslan (their second language) in education.'
674 She said in cross-examination that those teachers have rejected Auslan as a form of communication so that they can maintain their positions in deaf education.
675 In cross-examination she said:
'Well, you say that their rejection comes about because they wish to maintain their position in deaf education?---Yes.
Not because they honestly hold the opinion?---I've said that it can be charged as self-serving. I think it can be viewed as such, yes. I think there's an element that they - it certainly can be viewed as such.'
676 She was pressed further in cross-examination:
'So you were saying that the teachers were resistant to it, consistently with what you said in paragraph 33 that they wish to preserve their own position and their own approach to education, weren't you?---Overwhelmingly. Again overwhelmingly. There have been teachers who've stood up and brought in bilingual education so it's not exclusively.
What about the many who in their own time, including in the schools under examination here, who have learned Auslan as well as having learned signed English? What about those committed people?---Yes, there's a growing number of teachers now who in fact recognise that singed English isn't the best way to go and, as you've said, have started to acquire Auslan themselves.'
677 In cross-examination she admitted two matters of particular importance in my opinion. First, when she wrote her thesis she did not suggest that it was orthodoxy to use Auslan as the first language and principal mode of instruction of the deaf in Australia. Nor did she suggest that that was the orthodoxy anywhere else. Secondly, she admitted that teaching in Auslan was not the norm in any State except, as she contended, in Tasmania.
678 I treat Dr Komesaroff's evidence with caution. She is, in my opinion, too close to the issue to recognise any argument other than her own.
679 I prefer the evidence of Professor Lane, Professor Branson, Professor Power, Ms Lawrence and Sister Mary Teresa Lawson to Dr Komesaroff's evidence.
680 Veronica Pardo is, as already observed, employed by Deaf Children Australia, formerly called VSDC Services for Deaf Children, which is an organisation which provides a range of services to deaf and hearing impaired children and their families.
681 Ms Pardo also acts as a sessional university lecturer at La Trobe University. Prior to holding her present position, she was employed full-time as a lecturer at that University.
682 She has specialised in Auslan, bilingualism and bilingual education for the deaf, Languagues Other than English (LOTE) and Sign Language Research throughout her career as an academic. She has studied the academic literature regarding the education of deaf children. She is qualified in Auslan and English as a second language teacher. She holds a Masters of Arts degree in Education, focusing specifically on bilingual education for the deaf.
683 Ms Pardo was instructed by the applicants to assess the language skills, history and needs of Tiahna and to comment upon them in the context of Tiahna's need to fully benefit from an education in the public system provided by Education Queensland.
684 She observed that Tiahna was clearly bilingual in that Tiahna uses Auslan and English. Tiahna is able to make clear choices between the languages which she adopts in different communicative settings. In that regard, Tiahna uses speech and 'speech reading' to communicate when in the presence of non-signers. In the presence of signers, Tiahna uses Auslan in an age appropriate manner. Ms Pardo did not observe that Tiahna used Signed English, except insofar as some words in Auslan and Signed English are the same.
685 Ms Pardo's opinion was that Tiahna would need to be exposed to Auslan at school otherwise her fluency and capability in that language would become compromised.
686 If she is educated in Auslan, not only will her Auslan competency develop appropriately but so will her English language continue to develop as a second language.
687 She said in par 22 of her affidavit of 18 August 2003:
'22. For Tiahna to have equal access to education now and in the future, in my view the following needs to occur:
(a) Auslan and English need to be the languages of instruction in her educational setting. This means that she needs to be taught via Auslan all the time. Her exposure to English in its written form should be in addition to, and not as a replacement of Auslan.
(b) There must be at least one specialist staff member in Tiahna's class at all times as defined below in points iv and v.
(c) Auslan and English need to be taught as separate curriculum areas to her individually in much the same fashion as English is taught to Tiahna's hearing peers.
(d) Staff working with Tiahna must be competent and qualified in Auslan. These individuals should be qualified Teachers of the Deaf, and/or qualified in the Teaching of Languages Other than English (LOTE), and/or the Teaching of English as a Second Language (TESL). This could potentially be one person, or a number of people.
(e) Interpreters should be competent and qualified in Auslan, as well as being qualified in their profession.
(f) Teacher Aides should not be used as a substitute for Interpreters or Teachers. Teacher Aides would not be required for Tiahna if the above professional staff are provided.
(g) Professional development opportunities for non specialist staff including the general class teacher, and various administrative staff needs to occur to ensure a broader understanding of the principles and practice of bilingual education.
(h) A "whole school" approach to Auslan/English bilingualism, providing information and units of work for all students on deafness (for example her close peers ought to have the opportunity to learn Auslan as a second language and all students ought to receive some instruction in the nature of deafness so as to create cultural awareness and sensitivity), Auslan and bilingualism, deaf studies to partial/whole school Auslan LOTE programs.'
688 Ms Pardo swore a separate affidavit in relation to Ben's claim. She referred to a number of affidavits of the applicants' experts and a number of other documents, and said that her instructions were to assess Ben's language skills, history and his needs, and 'comment upon them in the context of his need to fully benefit from an education in the public system provided by the State of Queensland'.
689 She relied on Ms Wilson's report of 18 August 2003 and assumed that Ben's IQ was well within normal range. Ms Wilson had found, as a result of her assessment, that Ben was generally age appropriate in his non-verbal scores.
690 Ms Pardo said that, notwithstanding the absence of any intellectual disability, the speech pathologist report and her observations showed that Ben's language abilities, both in Auslan and English, were well below average and not age appropriate.
691 Ms Pardo said:
'This is not an unusual occurrence amongst deaf children who are denied an appropriate language input at school.'
692 She said that during her assessment she encouraged Ben to use Signed English because that was what he had been exposed to at school. She found that his signing was 'consistently ungrammatical, with a predominance of lexical vocabulary and a paucity of functional vocabulary'.
693 This meant that, whilst he was able to use nouns and verbs, he had very little in the way of grammatical language such as pronouns, articles, prepositions, inflections, pluralism or continuing aspects.
694 On the other hand, Ms Pardo said that Ben commented that he liked Auslan better than Signed English. She said he indicated a progress towards competency in Auslan. She observed him interacting effectively with Auslan signers and engaging appropriately through an Auslan interpreter. She said:
'21. The fact that Ben has developed this level of competency in Auslan, although far from proficient, is an indicator of the ease with which Auslan may be acquired by deaf people. It also indicates that Auslan is fully accessible to Ben and therefore, constitutes comprehensible input for him.'
695 It is surprising that Ben showed the level of competency to which Ms Pardo referred having regard to how little exposure he has had, on his own case, to Auslan. That evidence is also inconsistent with Professor Branson's evidence.
696 She said that Ben has already suffered cognitive delay which may be permanent. In her opinion, that delay was a consequence of inappropriate linguistic input. That delay will affect the academic level which Ben will attain and means that his chance of accessing any tertiary education will be slight. He will therefore be restricted, she said, in the pursuit of a career.
697 She said:
'If Ben had been given equal access to his education, he would be performing at a higher level than he is currently, and would have the possibility of tertiary education ahead of him, and thereby a greater choice of career options.'
698 This is an example of Ms Pardo's tendency to over argue the case for both applicants. There is no evidence that Ben has the intellectual ability to perform at the level required for a tertiary education. There is evidence that he does not suffer an intellectual disability, but it does not follow that he has the intellectual ability to perform at a tertiary level.
699 Ms Pardo's philosophy is demonstrated by her evidence in par 27 of her affidavit:
'27. Education Queensland's method of communication with Ben in implementing his education, as described in the Points of Defence of the Respondent at paragraph 4 (a), has been and will continue to be inadequate in my view. The hypothesis that Signed English can overcome Ben's hearing loss, and guarantee not only a pathway to language acquisition but also access to classroom teaching and learning has clearly been disproved. The evidence for this fact lies in the results of speech and language tests conducted on Ben, all of which indicate very unsatisfactory outcomes. Further, his school reports and Individual Education Plans demonstrate that Ben is functioning well below what is expected from a boy his age, with his intellectual capacities.'
700 She said in her cross-examination:
'MR BAIN: But your organisation doesn't support any use of signed English in schools, does it?---That is correct. It does not support the use of signed English in schools as a result of a consideration of the literature and the research in this area which has found that it is an outmoded educational tool. And we are also guided strongly by the views of our stakeholders, both from the parent community and from the professional community who tell us that they are dissatisfied with the outcomes that signed English has resulted in. So for that reason, we have ceased the publication of the signed English dictionary.'
701 She admitted in her cross-examination that, although ultimately it is for the parents to decide how their child should be educated, Deaf Children Australia never advises parents that Signed English should be used in their children's education. Indeed, the written advice is that the children should not be so educated. Even later, she said Deaf Children Australia advises deaf children's parents that Signed English is an inappropriate form of communication.
702 Ms Pardo's opinions are based upon a continuing premise, that is, that Signed English has no capacity to assist a student in that student's education.
703 She swore a second affidavit in response to the affidavits provided by the respondent's experts.
704 In that second affidavit she argued the case for Tiahna in Auslan rather aggressively.
705 Professor Power had by way of introduction included a history as shown in par 20 of his affidavit:
'Although the use of signing in schools had gained support amongst many Queensland teachers of the deaf, it was believed that the kind of vocabulary needed for signing in schools largely did not exist in the sign language used by the Deaf community (which was Auslan). Therefore, in the mid-1970s the Australian Sign Development Project was established collaboratively, mostly by teachers from the Victorian School for the Deaf and the Queensland School for the Deaf and academics in the area of education of the deaf (of whom I was one).'
706 Ms Pardo said in her affidavit in response:
'2. I refer to paragraph 20 of the Power affidavit. There is a view that "the kind of vocabulary needed for signing in schools largely did not exist in the sign language used by the Deaf community (which was Auslan)". This was said to justify the need to develop Signed English. This view is incorrect. At the time of the development of Signed English, however, there was little research on Auslan. Auslan was simply not recognized in the 1970s as a legitimate language. Today, our knowledge of the grammatical structures of Auslan is far more sophisticated and certainly sufficient to dispel any suggestions that the Auslan vocabulary lacks expressive capacity. Any such claim can only indicate a failure to understand the guiding principles of Auslan grammar. A cursory glance at an Auslan dictionary might give the impression of a language with fewer lexical items than English. This, however, is misleading. English is a language that relies on word order and discrete units of meaning (words) to convey messages. Auslan relies on a complex system of morphology to generate meaning. That is, discrete units of meaning (signs) are modified through the addition of particles to create new meanings. It is these subtle changes to root signs that make Auslan a tremendously productive language and a very suitable language for use in education.'
707 Any reading of Professor Power's statement leads to the understanding that he was talking of a time prior to the mid 1970s. That is clear by the second sentence of his par 20.
708 He does not make the claim that the view was correct. Simply, he said that that was the view. It must be remembered that Professor Power is one of the leading academics in the education of the deaf in Australia and has written extensively on the subject.
709 In par 67 of her affidavit, Sister Mary Teresa Lawson said:
'Bilingual bicultural programs aim for the students to gain competency in both Auslan (signed) and English (written and spoken if appropriate). Auslan is generally used as the language of instruction. English is then taught as a second language.'
710 In par 26 of her affidavit in response, Ms Pardo said:
'I refer to paragraph 67 of the Lawson affidavit. Again, this is one (very narrow) definition of bilingual education for the deaf. In actual fact, it fails to account for the model most bilingual schools in Australia, Canada, USA and UK have implemented. This is due to the fact that many students in bilingual programs do not enter the program with Auslan as a first language. Indeed, many students enrolled in bilingual programs present with skills in English as the first and only language, ranging in skill from fully proficient and age appropriate to significantly delayed.'
711 In my opinion, the criticism made by Ms Pardo is unreasonable.
712 In fact, on all of the evidence, Sister Mary Teresa Lawson's statement is entirely orthodox and consistent with the applicants' own experts' evidence.
713 In par 69 of her affidavit, Sister Mary Teresa Lawson said:
'69. I believe it has been necessary for Education Queensland to exercise caution in its decision to include a bilingual-bicultural program in its array of services to students with a hearing impairment for the following reasons:-
(a) the divergence of opinion about the best method of communication to use when educating students, which has been expressed in the past and which continues to be expressed;
(b) once a student has been enrolled in a bilingual-bicultural program it is difficult, if not impossible, to discontinue the program prior to the completion of the student's schooling, without causing detriment to the student.'
714 In pars 27 and 28, Ms Pardo said:
'27. I refer to paragraph 69 of the Lawson affidavit. I refer to the statement "I believe it has been necessary for Education Queensland to exercise caution in its decision to include a bilingual-bicultural program in its array of services to students with a hearing impairment for the following reasons:-
(a) the divergence of opinion about the best method of communication to use when educating students."
I note that the divergence of opinions relates to all methods of communication, including auditory/verbal and total communication, not solely bilingual-bicultural. Yet, there is no suggestion that auditory/verbal or total communication methods not be implemented because of that divergence of views. In my view, children who would benefit from bilingual/bicultural programs are being disadvantaged by a debate that equally questions the value of all methodologies, including those currently offered by both Brisbane Catholic Education and Education Queensland.
28. Therefore, this statement clearly represents a professional bias rather than a considered and educated response to the needs of all deaf and hearing impaired children. Furthermore, it appears more of a defense of the status quo than an attempt to examine seriously the impact of the different approaches adopted by Education Queensland and Brisbane Catholic Education in the education of these children.'
715 The comments in par 28 of Ms Pardo's affidavit are inappropriate and unnecessarily aggressive. Her affidavit in response is punctuated with statements of that kind.
716 In the end result, Ms Pardo's affidavit in reply descends into arguments, some of which are clearly at the margins.
717 However, it is worthwhile identifying one matter which she addresses. In par 9 of her affidavit she says:
'I refer to paragraph 65 of the Power affidavit. I refer to the statement "…a BLBC program would perform best with at least 30 to 35 children". There is no definitive research about the number of children required to create a Communication Community. Research into spoken language bilingual programs indicate that where there is a commitment to the particular philosophy of bilingual education on the part of the school community, there is no need for even one native speaker child. Subsequently, I would argue that while there are obvious benefits to having numbers of native signing children and staff as members of the school community, it is not a prerequisite for a successful program. Those prerequisites instead are a commitment to the philosophy, a strong Auslan program prepared and delivered by skilled, qualified staff and continued professional development for all.'
718 I have considerable difficulty with her argument in that regard.
719 I would have thought it was at the very least desirable, if not necessary, that there be a communication community of the kind referred to by Professor Power.
720 Otherwise, the deaf/hearing impaired child would be unable to communicate with the other members of his/her community, except for those who had Auslan.
721 Ms Pardo argued that it is enough for the deaf/hearing impaired child to communicate with the Auslan teacher or instructor without having the benefit of socially interacting with his/her peers.
722 That is also contrary to the evidence of Sister Mary Teresa Lawson and, I think, with commonsense.
723 In the end, her opinions may be understood to be:
1. Signed English is another form of English and to teach a student in Signed English is to teach them in a monolingual program.
2. Signed English is of no assistance whatsoever in the education of deaf children.
3. All deaf/hearing impaired students should be taught in a bilingual program, but not necessary a bicultural program.
4. The method of communication should be through the language of Auslan.
5. It is not necessary in conducting a bilingual program to have a community.
6. English should be taught without any Signed English.
7. Parents will not make any significant contribution to their children's Auslan language development.
8. On the other hand, deaf children are natural learners of sign language.
9. Learning Auslan and learning Signed English are long-term activities.
724 Deaf Children Australia recognises, as obviously it should, degrees of deafness. When a child presents, an assessment is made of the degree of deafness suffered by that child. An assessment is then made of the way in which that child should be taught. A child with a degree of deafness of five per cent would be more likely than not to be taught orally in English. That assessment takes place with the assistance of parents and educators.
725 At the other end of the spectrum is the child who is profoundly deaf. That child would have a hearing loss above 90 decibels. It is the view of Deaf Children Australia that, in the majority of cases, those children should be taught by using Auslan.
726 Ms Pardo admitted, however, that there would be circumstances where it would not be appropriate to have profoundly deaf children educated by using Auslan. She said if there is evidence that they are doing well in an oral-only environment then it would not be appropriate to educate them by using Auslan. Moreover, if experience shows that they are coping and the testing shows that they are achieving at peer equivalent level that would be another circumstance where it would be inappropriate to teach children in Auslan.
727 I prefer the evidence of the other experts to that of Ms Pardo. She is clearly a crusader for Auslan and not sufficiently objective. In particular, I prefer Professor Power's evidence to the evidence of Ms Pardo.