conclusionS
104 It is important to note that, as a prelude to Lander J's finding that Tiahna could comply with the relevant requirement or condition, he referred to the evidence of Mr Morris and Professor Janet Branson to the effect that Tiahna could "cope" in a regular classroom environment without the benefit of Auslan assistance. It was in that context that he observed that she had not fallen behind her hearing peers. It was on the basis of these findings that her case failed.
105 The central issue in this appeal is whether his Honour approached Tiahna's case on the right basis. That depends upon whether he construed the expression "able to comply" in s 6(c) correctly.
106 Regrettably, in our view, his Honour allowed himself to be distracted by the somewhat unsatisfactory manner in which Tiahna's case was presented below. Ultimately, this led him to focus upon the wrong issues. In considering questions of parity between Tiahna and her hearing peers, and whether she had the ability to "cope", his Honour failed to address the real issue in Tiahna's case. That was whether, by reason of the requirement or condition that she be taught in English without Auslan assistance, she suffered serious disadvantage.
107 As previously indicated, Lander J concluded that there was no evidence, or none that he was prepared to accept, "to support a finding that Tiahna cannot be educated in English, including signed English". Without in any way impugning that conclusion, it does not follow that Tiahna thereby failed to establish that she was "not able to comply with" the requirement or condition, as formulated.
108 There was a substantial body of evidence before his Honour, all of which he accepted, that suggested that irrespective of how well Tiahna had "coped" without Auslan assistance, she had nonetheless suffered serious disadvantage by being denied that assistance throughout the relevant period.
109 For example, Professor Branson, Professor of Education and Director of the National Institute for Deaf Studies and Sign Language Research at La Trobe University, said:
"Research into the academic performance of profoundly deaf children show that those students who have access to natural sign language as a fully fledged first language have consistently higher literary skills than those who have had no access to sign language or have only access to signed English.
…
Tiahna's entrance into the educational system will constitute a significant change in her linguistic environment. No longer will she access a bilingual environment, as she currently does. Given this fact, we can no longer be certain of an age appropriate continuation in pace of her linguistic and cognitive development. In my view, a change to an English based linguistic environment is likely to have deleterious effects on that development."
110 Professor Harlan Lane, who is University Distinguished Professor at North-Eastern University in Boston, and holds a Doctor of Letters in Linguistics, said:
"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.
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.
…
There is no alternative to full time educational use of Auslan with Tiahna if she is not to be held back academically and developmentally. Spoken language is not accessible to her; invented signed languages, like signed English, do not have the necessary properties of natural languages and are based on a language she does not know well and cannot hear - English."
111 Importantly, Mr Morris, whose evidence was accepted "in all respects" 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."
112 In addition, Ms Wilson said:
"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."
113 This evidence, taken as a whole, strongly suggested that Tiahna had suffered (and would be likely to continue to suffer) serious disadvantage as a consequence of being taught in English, without the benefit of supplementary instruction in Auslan. A common theme in these experts' opinions was that, because Tiahna was proficient in Auslan, which was also her first language, she could not reach her full educational potential unless taught in that language. English, including signed English, would not be an adequate alternative, at least so far as Tiahna was concerned.
114 Mr Bain, perhaps because he apprehended that his Honour's approach to s 6(c) might give rise to some conceptual difficulties, elected in the appeal to focus heavily upon the temporal limits of the Court's inquiry. In substance, he submitted that Tiahna had been so young throughout most of the period relevant to the alleged discrimination, that she could not sensibly be said to have suffered any serious disadvantage merely by having been denied Auslan assistance. He submitted that, given that any disadvantages sustained after 30 May 2002 had to be disregarded, much of the evidence led on Tiahna's behalf bearing upon that issue was irrelevant. He referred in particular to the evidence concerning her ability to communicate, as manifested in interviews conducted shortly before affidavits were sworn, and well after the end of the claim period.
115 In some ways, the case put on appeal on behalf of the respondent bore little resemblance to the case put below. Certainly, Lander J did not touch upon the temporal limits of the claim, at least in so far as they bore upon the evidence, in dismissing Tiahna's application. On the other hand, despite the unsatisfactory way in which her case was presented below, Tiahna's claim has always remained essentially the same. As his Honour noted, Tiahna's case is, and always has been, that her first language was Auslan, and that she would have been "better taught" in Auslan than in English.
116 Lander J referred to the judgment of Madgwick J in Clarke at first instance. It is fair to say that his Honour purported to apply that decision. The difficulty is that, properly understood, Madgwick J's reasoning seems to us to provide strong support for Tianha's case.
117 The issues raised in Clarke were essentially the same as those raised by Tiahna. Did the terms and conditions upon which Jacob was offered enrolment provide that he had to comply with a "requirement or condition" within the meaning of s 6 of the Act? If so, was the requirement or condition one with which a substantially higher proportion of persons without Jacob's disability complied or were able to comply? Was the requirement or condition reasonable? And finally, was Jacob able to comply with that requirement or condition?
118 Madgwick J held that the first three requirements of s 6 were satisfied, as of course did Lander J in Tiahna's case.
119 That left only the requirement of inability to comply. Madgwick J found that Jacob could not meaningfully participate in classroom instruction without Auslan interpreting support and would have faced serious disadvantages that his hearing peers would not face. His Honour dealt with this issue where he stated (at [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."
120 We should interpolate, at this stage, that there appears to be no real difference between his Honour's use of the term "substantial disadvantage" in relation to the comparable base group, and his use of the term "serious disadvantages" in relation to the issue of ability to comply. On the other hand, neither formulation accords with Mr Lenehan's submission that "non-trivial disadvantage" is all that s 6(c) contemplates. That submission goes too far, and cannot be accepted.
121 In Clarke FC, Tamberlin J delivered a judgment separate from the other members of the Full Court. His Honour noted that the Catholic Education Office characterised Jacob's case as seeking the conferral of an additional benefit over and above that which other students were offered, and therefore not as a claim of discrimination. His Honour rejected that characterisation, observing that it detracted from the question posed by the language of the Discrimination Act, which was whether Jacob, as a profoundly deaf person, was required to comply with a condition with which non-deaf persons were able to comply.
122 In his Honour's own words (at [11]):
"… this approach examines the requirement from its impact on a non-disabled person and not from the effect of the requirement on the pupil under a disability. This is the wrong approach. If it is a condition of admission that Auslan assistance will not be provided, then non-deaf students can receive a full education while Jacob, because of his disability, is not able to receive the full benefit of this education. He cannot comply with this requirement if he is to obtain the educational benefits offered by the College."
123 His Honour's references to a "full education" and "the full benefit" of this education are instructive. They are replicated in the joint judgment of Sackville and Stone JJ where (at [66]), their Honours referred to Madgwick J's finding (at [49]), set out above. Their Honours saw no error in Madgwick J's reasoning. They noted that techniques such as sign language, lip-reading and note-taking were "not as effective or efficient" as Auslan in enabling Jacob to communicate. The evidence showed that Jacob's primary school had coped admirably in providing him with Auslan assistance, and there was no reason, in their Honours' view, why such assistance should not equally be provided at a secondary level.
124 As previously noted by Mr Lenehan, Lander J did not refer to Clarke FC. If anything, the judgment of the Full Court strengthened Madgwick J's reasoning that the inability of a deaf child to benefit fully from classroom instruction, by reason of a refusal on the part of the relevant authorities to use Auslan, was capable of meeting the "not able to comply" requirement in s 6(c). The disadvantages that Madgwick J identified in Clarke (at [49]) were essentially the same as those singled out by the experts (whose evidence Lander J accepted) in Tiahna's case. There is perhaps one qualification. In Clarke, Jacob had the additional likely frustration of knowing, from his past experience in primary school, that there was a better and easier way of understanding a lesson which was not being used. Tiahna, being much younger, might not be as affected by this last consideration.
125 In our view, Lander J's approach to the "not able to comply" requirement in s 6(c) is difficult to reconcile with the broader reasoning in Clarke FC, with which we agree. A hearing impaired child may well be able to keep up with the rest of the class, or "cope", without Auslan. However, that child may still be seriously disadvantaged if deprived of the opportunity to reach his or her full potential and, perhaps, to excel.
126 Although Madgwick J characterised Jacob as not being able meaningfully to "participate" in classroom instruction without Auslan interpreting support, we do not consider that his Honour intended, by using that expression, to posit meaningful participation as a sine qua non of inability to comply for the purposes of s 6(c). Rather, in context, he was simply setting out the various disadvantages which Jacob had experienced by reason of the absence of Auslan assistance. In the particular circumstances of his case, his Honour characterised these disadvantages as rendering Jacob unable meaningfully to receive classroom education. However, a description of the situation of a particular child, based upon evidence peculiar to that child, does not of itself give rise to a test that is generally applicable to all cases.
127 Clarke FCalso demonstrates the fallacy of Mr Bain's submission that Tiahna's case requires recognition of an obligation on the respondent's part to discriminate positively in her favour. Sackville and Stone JJ rejected a similar argument (at [87]-[93]), noting that there is a significant difference in the way that the Discrimination Act operates as compared with other anti-discrimination legislation, including in particular the Sex Discrimination Act 1984 (Cth) and the Racial Discrimination Act 1975 (Cth). Those Acts require that people not be treated differently on the grounds of sex or race. By contrast, the Discrimination Act and other disability discrimination legislation,necessarily focus upon a criterion of admitted difference.
128 In addition, the Discrimination Act is aimed at ensuring equality of treatment. It is not, unlike other anti-discrimination legislation, aimed at ensuring equality of outcome. There is nothing to suggest that the Discrimination Act should be construed so as to preclude any requirement that an educational authority "discriminate positively" in favour of a disabled person: see generally Clarke FC(at [93], per Sackville and Stone JJ).
129 We are not persuaded by Mr Bain's submissions regarding the effect of the temporal limitation upon Tiahna's case. It is true that, for at least the early part of the claim period leading up to 30 May 2002, she was too young to have been seriously disadvantaged by not being taught in Auslan. However, by the end of that period she was over four years old. It is hardly necessary to say that this is an impressionable age, and one that is generally regarded as of considerable importance developmentally.
130 The evidence, all of which Lander J accepted, strongly suggested that Tiahna had already been detrimentally affected by having been denied Auslan assistance in the period leading up to 30 May 2002. It was at least implicit, and, arguably, explicit as well, that she would be further disadvantaged in years to come, as a result of having been denied that assistance during the claim period. The early learning years are plainly vital to later educational development. Tiahna's long term disadvantage, to which the experts alluded, was simply that she might ultimately be denied the opportunity to achieve her full potential. On the facts of Tiahna's case, the detriment that she sustained would plainly be regarded as "serious".
131 Finally, in order to avoid any misunderstanding, it should be stressed that Tiahna's case is not a test case. The judgment of this Court does not establish that educational authorities must make provision for Auslan teaching or interpreting for any deaf child who desires it. It does not establish that Auslan is better than signed English as a method of teaching deaf children. It does not determine that an educational authority necessarily acts unreasonably if it declines to provide Auslan assistance.
132 As with all proceedings of this type, Tiahna's case is highly fact specific. It depends upon the circumstances unique to her case and, importantly, upon the primary facts found by the primary judge, none of which were challenged before us. It also reflects the way in which the case was conducted at trial and on appeal. The observations of Sackville and Stone JJ in Clarke FCat [136] are equally apposite to this case.
133 It is unfortunate that Tiahna's case, as with others of a similar nature, appears to have engendered a great deal of passion. It is, in the end, a case about a single litigant, which turns upon a narrow question of construction. The resolution of this case is not assisted by the involvement of various interest groups, each with its own agenda, which seek to politicise what is, at bottom, a legal issue.
134 We have concluded that Lander J erred in his construction of the "not able to comply" component of s 6(c). His Honour's own findings ought to have led him to conclude that Tiahna was relevantly "not able to comply" with the requirement or condition that she be taught in English, without the assistance of Auslan. In our view, it is sufficient to satisfy that component of s 6(c) that a disabled person will suffer serious disadvantage in complying with a requirement or condition of the relevant kind, irrespective of whether that person can "cope" with the requirement or condition. A disabled person's inability to achieve his or her full potential, in educational terms, can amount to serious disadvantage. In Tiahna's case, the evidence established that it had done so.
135 It is unnecessary for the purposes of this judgment to rule upon Mr Lenehan's various construction arguments, or his general submissions regarding international human rights law and standards.
136 It follows that Tiahna is entitled to a declaration that the respondent contravened s 6 of the Discrimination Act. It also means that his Honour's order that Tiahna pay the respondent's costs of the proceeding below must be set aside. There should be an order, in lieu thereof, that the respondent pay her costs below, as well as the costs of the appeal.
137 In the events that have happened, that seems to be the only relief to which Tiahna is entitled. Lander J observed (at [825]-[827]) that if, contrary to his overall conclusion, indirect discrimination was made out, Tiahna had suffered no loss, and was entitled to no compensation. That finding has not been challenged in the appeal to this Court. Indeed, it was not sought to be challenged even after that fact was drawn to Mr Burnside's attention during the course of argument. Accordingly, it is difficult to see how it can now be impugned.
138 In addition, although Tiahna originally sought injunctive relief before Lander J, that claim seems to have been but faintly pressed both before his Honour and on appeal. There seems little likelihood that any such claim could now succeed, given the time that has now passed, and the state of the evidence led below. Nonetheless, we should give the parties an opportunity to be heard regarding the formal disposition of the claim for injunctive relief. That can be done by submissions in writing.
I certify that the preceding one hundred and thirty-eight (138) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.