Kiefel v State of Victoria [2013] FCA 1398 | Case summary

Kiefel v State of Victoria [2013] FCA 1398 | Case summary | Zoe

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REASONS FOR JUDGMENT 1 From 2005 to 2010 the applicant, Mr James Kiefel, who makes his application through his litigation guardian and mother Mrs Wendy Kiefel, attended several schools which are conducted by the State of Victoria acting through its Department of Education and Early Childhood Development ("the Department"). James alleged that the Department, during this time, was guilty of various acts and omissions constituting direct and indirect discrimination under the Disability Discrimination Act 1992 (Cth) ("the DDA"). He also complained that the Department had contravened the DDA by failing to comply with Disability Standards for Education prescribed under that Act. He seeks a number of remedies. 2 In his reasons for decision in Walker v State of Victoria [2012] FCAFC 38 at [114] Gray J (with whom Reeves J agreed) cautioned that: "Before a proceeding is brought after … a complaint [of disability discrimination] has been terminated, the legal representatives engaged on behalf of a vulnerable person have a particular duty to ensure that complaints and grievances that are not capable of being brought within the Disability Discrimination Act are not pursued, and that those that are pursued are related clearly and directly to the provisions of the Disability Discrimination Act." 3 His Honour had earlier observed (at [73]) that: "No provision of the Disability Discrimination Act empowers the Court to undertake a general inquiry into the best interests, or the vulnerability, of a child with disabilities. Whatever provisions guidelines adopted by a State with respect to students with disabilities might make, and whatever benefits or expectations such guidelines might create, they are not the subject of enforcement under the Disability Discrimination Act." 4 In this context his Honour also said (at [72]) that the Act is "not an adequate vehicle for addressing all of the complaints that [a student's] parents had about the adequacy of the services provided to the [student] by the respondent in the schools he attended." 5 The duty to which Gray J adverted was not complied with by those who framed James' case. 6 This, unfortunately, is yet another case in which well-meaning parents have wrongly been led to believe that redress is available under the DDA for what they perceived to be deficiencies in the manner in which educational services have been provided to their children by the State of Victoria.

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BACKGROUND 7 James was born on 1 September 1999. It was common ground that he suffers from autism spectrum disorder ("ASD") and language disorders, both in a receptive and expressive capacity. Expert evidence indicated that James consistently exhibited certain symptoms of ASD including difficulty in concentration and attention, anxiety, limited speech, avoidance of non-preferred tasks and bouts of aggression. When distressed he could strike out at those near him. On occasions he would bite others or pull their hair. Such behaviour occurred from time to time in both domestic and school settings. James was also prone to loud outbursts which could be disconcerting for those around him. 8 It was alleged by the Department and disputed by James, that he suffers from an intellectual disability. The Department called expert evidence in support of its position. Ms Janette Hibberd, a psychologist, assessed James and concluded that he had a low IQ, indicative of an intellectual disability. Using the WISC-IV intelligence test, Ms Hibberd derived scores in the "extremely low" range for verbal comprehension, perceptual reasoning and working memory. Using the Vineland Adaptive Behaviour Scales, Ms Hibberd found that James functioned at a low adaptive level with a mild deficit. Ms Hibberd's overall conclusion was that James presented with an intellectual disability in the mild range. Ms Hibberd agreed that James could learn with support. James was also assessed by Dr Catherine Marraffa, who concluded that James had an intellectual disability. 9 James' pleaded case did not allege nor agree that he had an intellectual disability. He contended, throughout the course of the hearing, that the WISC-IV test was "invalid" as a means of assessing him because he was "non-verbal". James called expert evidence from Associate Professor Judah Axe and Ms DiannÉ Perrett-Abrahams about the effectiveness of the test. Neither expert had assessed James in person and both contended that there is difficulty in obtaining accurate test results for children with severe autism. Mrs Kiefel also stated that IQ tests "are unreliable for children with language disorders", "biased" and "unethical". Despite this, in closing submissions, those acting for James acknowledged that James may have a mild intellectual disability. 10 It was not in dispute that each of the conditions attributed to James as part of his own case or by the Department constituted disabilities within the meaning of the DDA. 11 Because of the view I have taken about other aspects of James' case it will not be necessary for me to seek to resolve the limited differences between the parties as to the diagnosis of his medical conditions. 12 Between 27 January and 21 December 2005 James attended Bulleen Heights Special School ("Bulleen Heights"). From 31 January 2006 to 21 December 2007 he attended Wantirna Heights School ("Wantirna Heights"). Between 30 January 2008 and 1 June 2011 he was enrolled at the Essex Heights Primary School ("Essex Heights") although he did not attend that school in 2010 with the exception of nine mornings in term 1 and one day per week from term 3.

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THE RELEVANT LEGISLATION 21 James' primary claim was that the Department contravened ss 22(2)(a) and 22(2)(c) of the DDA by directly and indirectly discriminating against him on the ground of his disabilities. 22 Until 5 August 2009 s 22(2) of the DDA relevantly provided that: "(2) It is unlawful for an educational authority to discriminate against a student on the ground of the student's disability or a disability of any of the student's associates: (a) by denying the student access, or limiting the student's access, to any benefit provided by the educational authority; or (b) …; or (c) by subjecting the student to any other detriment." 23 In August 2009, s 22(2) of the DDA was amended by omitting the words "or a disability of any of the student's associates." 24 These amendments were effected by the Disability and Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth) ("the 2009 Amending Act"). 25 It was common ground that the Department was "an educational authority" for the purposes of this sub-section. 26 Proscribed discrimination may be direct or indirect in form. James alleged that he suffered from both forms of discrimination. 27 Until 5 August 2009 s 5 defined direct discrimination as follows: "(1) For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability. (2) For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability." 28 Section 6 of the DDA defined indirect discrimination as follows: "For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition: (a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and (b) which is not reasonable having regard to the circumstances of the case; and (c) with which the aggrieved person does not or is not able to comply." 29 These statutory definitions were amended by the 2009 Amending Act. They too came into force on 5 August 2009 and, therefore, apply to James' claims insofar as they relate to events occurring after that date. 30 Section 5, as amended, defines direct discrimination as follows: "(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different. (2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if: (a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and (b) the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different. (3) For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments." 31 Section 6, as amended, defines indirect discrimination as follows: "(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if: (a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and (b) because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and (c) the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability. (2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if: (a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and (b) because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and (c) the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability. (3) Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case. (4) For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition." 32 The term "reasonable adjustment" is qualified by s 4(1) of the DDA as follows: "an adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person." 33 The principal change made to each of the definitions can, therefore, be seen to have involved the introduction of the concept of 'reasonable adjustments'. 34 The amendments to s 5(1) did not effect any substantiative changes; they were made to "improve readability": see Commonwealth, Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008, Explanatory Memorandum (2008) ("the Explanatory Memorandum") at 7. The introduction of a new s 5(2) to pick up a failure by a service provider to make reasonable adjustments to accommodate the needs of a disabled person was designed to deal with the observation of Gummow, Hayne and Heydon JJ, in their reasons in Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92, that there was "no textual or other basis in [the former] s 5 for saying that a failure to provide [different] accommodation or services [for persons with a disability] would constitute less favourable treatment of the disabled person for the purposes of s 5: see Purvis at [218]. The introduction of the new s 5(2) does, however, raise additional issues for consideration when allegations of direct discrimination are made. 35 The changes to the definition of "indirect discrimination" in s 6 were more substantial. 36 The amendments sought to align the DDA with the Sex Discrimination Act 1984 (Cth). The amendments removed the evidentiary burden previously placed on the applicant to establish that there was a higher proportion of persons in his or her group who could not comply with the relevant requirement or condition. The test of proportionality was replaced with a requirement that the condition or requirement imposed by the discriminator had, or was likely to have, the effect of disadvantaging people with the disability of the aggrieved person: see the Explanatory Memorandum at 8. 37 The burden of proof relating to the "reasonableness" of the requirement or condition also shifted from the applicant to the respondent. This amendment was made because of the perception that a person who imposed the condition or requirement would be better placed than a complainant to explain or justify the reason for it. 38 The amendments also broadened the scope of indirect discrimination by extending the definition to include proposed acts of discrimination and by introducing an explicit duty to make reasonable adjustments for a person with a disability. 39 James further claimed that the Department breached Parts 3, 5, 6 and 7 of the Disability Standards for Education 2005 ("the Disability Standards"), which are promulgated under the DDA which makes it unlawful for a person to contravene a disability standard: see s 32. Those parts of the Disability Standards relate to making reasonable adjustments, standards for participation, standards for curriculum development, accreditation and delivery and standards for the provision of support services. The relevant parts of the Disability Standards will be dealt with in more detail later in these reasons. 40 James originally made allegations of victimisation. Those allegations, however, were withdrawn. 41 The Department relied, by way of defence, on s 34 of the DDA which provides that, if a person acts in accordance with a Disability Standard, Part 2 of the DDA, which includes s 22, does not apply to that act. 42 In the event that an adverse finding of discrimination were to be made under s 22(2), the Department foreshadowed reliance on a defence under s 22(4). Section 22(4), when read with s 11, provides a defence if avoidance of the discriminatory conduct would have imposed an unjustifiable hardship on the schools concerned. 43 The Department also contended that the DDA and the Australian Human Rights Commission Act 1986 (Cth) ("the AHRCA") do not confer power on the Court to make findings of discrimination or remedial orders that interfered with or impaired the State's right to determine the number and identity of the persons it wishes to employ as teachers, aides or in any other capacity. The Department argued that the DDA and the AHRCA must be read down to the extent that either Act would infringe the implied limitation on Commonwealth legislative power identified by the High Court in Re AEU; Ex parte Victoria (1995) 184 CLR 188.

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THE APPLICANT'S cASE AS PLEADED 44 Previous judgments of this Court make it clear that there is a need for a reasonable degree of precision in pleading discrimination cases: see Sievwright v Victoria [2012] FCA 118 at [166], [171], [174], [178]; Walker v State of Victoria (2011) 279 ALR 284 at [194]. This necessary precision is notably lacking in James' case as pleaded and argued. 45 Although earlier versions of the statement of claim were extensively revised James' FCSOC lacked rigor, was poorly structured, circular and, in certain respects, incomprehensible. 46 The FCSOC contained numerous allegations and complaints with respect to the provision of educational services to James. Most lacked the requisite exactitude and, generally speaking, no serious attempt was made to relate those allegations to the statutory proscriptions. Rather, the pleadings simply highlighted the shortcomings in the services provided to him which, he claimed, prejudicially affected his educational experience. They did not relate these deficiencies directly to the elements of the legal definitions of unlawful discrimination, whether it be direct discrimination, indirect discrimination or a contravention of the Disability Standards. Indeed, the same list of complaints was provided in respect of both direct and indirect discrimination and no attempt was made to clarify whether the matters listed were said to constitute direct or indirect discrimination and, if so, how. 47 In paragraph 19 of the FCSOC a list of what were said to be "reasonable adjustments" which the Department should have made for James was provided. It extended for over three pages. In the absence of any temporal limitations it appears that James contended that all of the adjustments were required to be made at all of the schools at which he attended between 2005 and 2010. Many of the adjustments were identified using qualifying adjectives such as "appropriate", "effective" and "predictable". The lack of clarity thereby occasioned affected other aspects of the pleadings because there was extensive cross referencing to "reasonable adjustments" of the kind identified in paragraph 19 in other parts of the FCSOC. 48 Under the heading "The Discrimination", paragraphs 21 to 56 set out a series of acts and omissions on the part of the Department in the course of providing educational services to James. They descended to some particularity in explaining when and at what schools most of the acts and omissions complained of occurred. 49 Under the heading "Summary of the Discrimination", paragraph 57 contained the broad assertion that the Department "did not provide the reasonable adjustments required by James at any time." 50 The allegation of direct discrimination was then made in paragraph 58. The Department was said to have discriminated against James "by reason of the matters alleged in paragraphs 21 to 57 inclusive hereof…". 51 The indirect discrimination allegation was made in the following paragraph 59 as follows: "Further and/or in the alternative, the [Department] discriminated against James in contravention of s.6 and s.22 (as it stood before and after the 2009 amendments) of the Act by reason of the matters alleged in paragraphs 21 to 57 inclusive hereof." 52 Then followed a series of further allegations relating to indirect discrimination to which it will be necessary to return. Enough has, however, been said to illustrate a number of the major deficiencies to which I have referred. 53 The opening words of paragraph 59 ignore the fact that the definitions of direct and indirect discrimination are mutually exclusive: see Australian Medical Council v Wilson (1996) 68 FCR 46. I bear in mind, however, that a complainant is not precluded from establishing a factual spring board from which to allege that he or she has been the victim of either direct or indirect discrimination: see, for example, New South Wales (Department of Education) v Human Rights and Equal Opportunity Commission (2001) 186 ALR 69 at 83; Tate v Rafin [2000] FCA 1582 at [69]. I have, therefore, treated the pleadings in paragraphs 58 and 59 as containing alternative allegations. An unavoidable consequence is that it will be necessary to return to the same body of evidence when dealing with each of the principal allegations of discrimination and contraventions of the Disability Standards. 54 It should also be noted at the outset that James' case as pleaded did not take sufficient account of the amendments to the DDA outlined above which came into force on 5 August 2009: see 2009 Amending Act. Although, to an extent, the FCSOC recognised that there are differences between the definitions of discrimination as they stood before and after 5 August 2009, the differences are not reflected in the manner in which the facts and allegations are related to the different periods. Unhelpfully, all allegations of unlawful discrimination, whether in respect of the pre or post August 2009 periods, refer back to sections of the pleadings dealing with "reasonable adjustments", a phrase which only entered the discourse of direct and indirect discrimination in August 2009. I have had great difficulty in making sense of the structure and nature of the applicant's pleadings in this context because it is virtually impossible to divorce those parts of the FCSOC which deal with allegations of direct and indirect discrimination in the period before August 2009, from those dealing with the Department's alleged failures to make "reasonable adjustments". These deficiencies in the applicant's pleaded case will be discussed further when dealing with his direct and indirect discrimination claims. 55 The problems with the pleadings to which I have referred and to which I will return were compounded by parts of James' written and oral submissions which were inconsistent with his pleaded case. 56 At trial counsel for James informed the Court that the case advanced in respect of some issues differed from that pleaded. For example, although certain allegations of injuries, abuse, restraint and seclusion were originally pleaded as both direct and indirect discrimination, at trial these allegations were pressed solely on the basis of direct discrimination. Despite this the FCSOC remained unaltered. 57 The written submissions which were filed did not assist in clarifying the precise allegations that James sought to make.

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THE WITNESSES 59 The principal witness for James was his mother and litigation guardian, Mrs Wendy Kiefel. She was devoted to James and wanted him to be provided with the highest quality educational services. She was strongly attracted to an educational system known as Applied Behavioural Analysis ("ABA") which she considered was likely to produce the best possible outcomes for James. When she was not satisfied that this method was available, or available at what she regarded as being the highest possible standard in Australia, she was prepared to and did move her family to the United States so that James could attend a school which specialised in the use of ABA. The result, she considered, was a great improvement in James' learning capacity and a significant improvement in his social interaction with his family and others. She compared the quality of his education in Victoria unfavourably with that which he received in the United States after 2011. 60 Evidence was also called from a number of experts (including two American experts) in ABA therapy who supported its efficacy and effectiveness. None of these experts had assessed or treated James. 61 The Department called 19 principals, teachers and aides who had been involved in James' education during the relevant period. It also led evidence from a psychologist and a speech therapist who worked at its schools. All presented as caring professionals who sought to provide James with the highest possible standard of education to the best of their abilities but, necessarily, subject to the limits of the resources available to them. Many of these witnesses held postgraduate qualifications such as Graduate Diplomas in Special Education which equipped them to teach students with intellectual disabilities. 62 The Department also called four expert witnesses: a paediatrician, a psychologist, a speech therapist and an expert in the treatments and therapies appropriate for autism spectrum disorder. Apart from the latter all had assessed James. It also called evidence from a senior administrator relating to the financial implications of providing services to disabled students in its schools.

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DIRECT DISCRIMINATION 67 In paragraph 58 of his FCSOC, under the heading "S.5 Direct Discrimination" James alleged that: "The [Department] directly discriminated against [him] in contravention of s.5 and s.22 (as it stood before and after the 2009 amendments) of [the DDA] by reason of the matters alleged in paragraphs 21 to 57 inclusive hereof, in that: (a) because of James' disabilities, the [Department] treated James less favourably than it treated students without James' disabilities, in circumstances that were the same or not materially different. (b) the [Department] did not make reasonable adjustments for James and the failure to make those reasonable adjustments had the effect that James was, because of his disabilities, treated less favourably than a person without his disabilities would be treated in circumstances that were not materially different." 68 The matters alleged in paragraphs 21 to 57 of the FCSOC were, in summary, the following: • Bulleen Heights o James was not provided with an Individual Education Plan. o James was not provided with a Behaviour Management Plan. o After only three visits, James was excluded from the Bulleen Heights inclusion program. o The Department did not provide James with a speech therapy program, speech therapy, communication program and functional communication facilities. • Wantirna Heights o James was not provided with a verbal behaviour program. o The Department failed to create and implement a Behaviour Management Plan. o The Department failed to create and implement an Individual Education Plan. o James was forced to adhere to a toileting schedule. o For 3 months employees of the Department failed to allow James to access the toilets. o The Department failed to teach James literacy and numeracy skills that were commensurate with his potential. o The Department failed to provide an ABA program to James in order to educate him. o The Department failed to implement a verbal behaviour program, being ABA, in order to enable James to improve his communication. o The Department used behavioural and language interventions on James without having or employing any processes of informed consent in respect of those interventions. o James was physically restrained, and received physical injuries, whilst in the care of the Department's staff and/or employees. o The Department failed to provide any proper support for James' integration into a mainstream school. o The Department failed to provide effective speech therapy, and did not have a formal communication program in place. • Essex Heights o The Department determined the level of funding to be provided to James to attend Essex Heights through the Program for Students with Disabilities ("PSD"). This was said to be contrary to the obligations of the Department and unreasonable in that the PSD did not identify James' actual needs, and constrained James' education and the expenditure available to provide for it. o The PSD funding allocated was not sufficiently adequate to cater for James, in that the school could not afford to provide the reasonable adjustments he required. o The funding that Essex Heights was allocated for James was used as part of the overall school budget to assist in the support of other children requiring reasonable adjustments. o The Department refused to fund an appropriate support person for James to attend an excursion. o The Department failed to create and implement a Behaviour Management Plan. o The Department failed to use material provided by Mrs Kiefel to assist in the provision of an ABA program for James. o The Department, over the course of 2008 and 2009, provided five different aides to James. o James was physically abused whilst in the care of the Department, resulting in him sustaining physical injuries. o The Department refused a request from James' psychologist to observe him in class. o James' parents paid for Integration Education and Communication training for the Department's staff. o The Department, in June 2009, discontinued the provision of aides to James. o The Department omitted to arrange parent teacher interviews for James and his parents. o On 18 March 2010, James experienced extreme distress and refused to attend school as a result of the Department's failure to make proper provision for his education. o From March 2010, the Department defaulted in the provision of the reasonable adjustments James required. o In November 2010, the Department told Mrs Kiefel that it would not provide the adjustments James required, being an ABA approach to his education. 69 James' direct discrimination claims were founded on both sub-sections 5(1) and 5(2) of the DDA. These alleged acts of discrimination had occurred, so it was contended, because of James' disabilities and involved treatment of him which was less favourable than that accorded to students without such disabilities, in circumstances that were the same or not materially different ("the s 5(1) claim"). 70 It was further alleged that direct discrimination had occurred by reason of the Department's failure to make reasonable adjustments for James and that the failure to make those reasonable adjustments had the effect that James was, because of his disabilities, treated less favourably than would a person without his disabilities have been in circumstances that were not materially different ("the s 5(2) claim"). Particulars of this s 5(2) claim were provided. It was alleged that the Department: "… did not provide James with educational facilities, resources, teaching and support, appropriate to his learning abilities. In doing so, the [Department] denied and/or limited James' access to the benefit of receiving an education commensurate with his potential, and a safe learning environment. The [Department] subjected James to the detriment of not receiving an education commensurate with his potential, and not being provided with a safe learning environment." 71 The reasonable adjustments which it was asserted should have been, but were not, made were the provision of: • Effective behaviour management plans • Individual education plans • Provision of ABA therapy • Speech therapy • Injuries, abuse, restraint and seclusion • Toilet access • Other allegations No real attempt was made by James at trial to deal with the additional allegations appearing in paragraphs 21 to 57 of the FCSOC. 72 As noted above, James' case as pleaded failed to direct adequate attention to the effect of the amendments to the DDA which came into force on 5 August 2009. First, paragraph 58 of the FCSOC, including paragraph 58(b) which refers to an obligation to make "reasonable adjustments", is pleaded in relation to the requirements of the Act "as it stood before and after the 2009 amendments". Until 5 August 2009, there was no obligation, imposed upon educational authorities by ss 5 or 22 of the DDA, to make "reasonable adjustments" to avoid direct discrimination. Any allegations with respect to "reasonable adjustments", therefore, are only relevant insofar as they relate to events occurring after August 2009. 73 At trial, counsel for James accepted that any claim with respect to reasonable adjustments could not apply to events occurring before August 2009. Counsel submitted that paragraph 58(a) of the FCSOC applied to events pre-August 2009 and that paragraph 58(b) applied to events occurring thereafter. 74 Despite this adjustment in his case, James' claim of direct discrimination, as pleaded, faces serious problems. It is unclear to me how paragraph 58(a) of the FCSOC can be read in the way suggested. This is because it, like paragraph 58(b), is governed by the same prefatory words which pick up the entirety of paragraphs 21 to 57 of the pleadings. In addition, parts of paragraph 21-57, which have been summarised above, refer back to and incorporate by reference the section of the pleadings dealing with "reasonable adjustments". The inescapable conclusion is that allegations of failure, by the Department, to provide the reasonable adjustments identified in paragraph 19, were relied on, in part at least, to found the complaint that direct discrimination had occurred, prior to 5 August 2009, in contravention of ss 5 and 22 of the DDA in the form in which they then appeared. 75 I put questions to James' counsel, seeking to resolve these difficulties, more than once at trial. Counsel was unable to explain how the allegations contained in paragraph 58 of the FCSOC could operate consistently with ss 5 and 22 as they stood before and after 5 August 2009. During opening submissions, counsel for James stated that: "… there is clearly a change in the law in 2009, August 2009. Pre-2009, we say this: because of the disability, [James] suffers. Respondent treats [James] less favourably than a person without the disability in circumstances that are not materially different. We say that is because students without [James'] disability are able to access education services. [James] could access the education services, we will say, with the adjustments as promised, the things the school said they would do, or knew they should have done … Had they done the things they should have done, [James] would be able to access the education services. The failure to do so, the failure to do what we say they promised or knew they should do means he received less favourable treatment. After 2009, in relation to direct discrimination, section 5(2)(a) says not to make reasonable adjustments … We say, if the schools had done what they said they were going to do, they would have been reasonable adjustments (sic) … [James] could have accessed the education services." If anything, this attempt at clarification only served to further confuse the manner in which the applicant's case was being put. 76 In closing submissions, I pressed the issue further and stated that I was deeply troubled by the way in which the pleading was framed in respect of the pre-August 2009 period. Counsel for James stated that they would consider the issue and deal with it further in reply. No further clarification was provided during the applicant's oral submissions in reply. Nor were the applicant's written submissions in reply of assistance in this respect. 77 It is still unclear to me precisely which allegations are pressed in respect of the period pre-August 2009 during which time issues relating to reasonable adjustments are not relevant. 78 Doing the best that I can with the pleadings as they stand, I will consider James' claims of direct discrimination, before and after the August 2009 legislative amendments, separately.

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Direct Discrimination Pre-August 2009 79 In order for him to establish this part of his case, it was necessary for James to demonstrate that the Department did (or failed to do) one or more of the things outlined above at [68] "because of" his disabilities thereby treating him less favourably than the Department would have treated someone without his disabilities in the same, or not materially different, circumstances. 80 There must, therefore, be a causal nexus between James' disabilities and the treatment of which he complains. In Purvis, Gummow, Hayne and Heydon JJ held (at 163) that: "… the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it 'because of', 'by reason of', that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression 'because of'". In his judgment Gleeson CJ (at 102) was also concerned to identify "the true basis" of a decision to expel a student from school. His Honour said that: "The fact that the pupil suffered from a disorder resulting in disturbed behaviour was, from the point of view of the school principal, neither the reason, nor a reason, why he was suspended and expelled … If one were to ask the pupil to explain, from his point of view, why he was expelled, it may be reasonable for him to say that his disability resulted in his expulsion. However, ss 5, 10 and 22 [of the DDA] are concerned with the lawfulness of the conduct of the school authority, and with the true basis of the decision of the principal to suspend and later expel the pupil. In the light of the school authority's responsibilities to the other pupils, the basis of the decision cannot fairly be stated by observing that, but for the pupil's disability, he would not have engaged in the conduct that resulted in his suspension and expulsion. The expressed and genuine basis of the principal's decision was the danger to other pupils and staff constituted by the pupil's violent conduct, and the principal's responsibilities towards those people". See also at 143-4 (per McHugh and Kirby JJ); Forbes v Australian Federal Police (Commonwealth of Australia) [2004] FCAFC 95 at [68]-[70]. 81 The Court is, therefore, required to determine, as a question of fact, why (in the sense of the "real reason" or "true basis") the impugned conduct occurred. 82 It must also be shown that the Department treated James less favourably than it would have treated other students who did not suffer from his disabilities in the same or substantially similar circumstances. The importance of identifying and bringing into account the relevant circumstances when making the comparison required by s 5 was emphasised by members of the High Court in Purvis. In their joint judgment Gummow, Hayne and Heydon JJ said (at 160-1): "It may readily be accepted that the necessary comparison to make is with the treatment of a person without the relevant disability. Section 5(1) makes that plain. It does not follow, however, that the 'circumstances' to be considered are to be identified in the way the appellant contended. Indeed, to strip out of those circumstances any and every feature which presents difficulty to a disabled person would truly frustrate the purposes of the Act. Section 5(2) provides that the relevant circumstances are not shown to be materially different by showing that the disabled person has special needs. … In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled. The appellant's argument depended upon an inversion of that order of examination. Instead of directing attention first to the actual circumstances in which a disabled person was, or would be, treated disadvantageously, it sought to direct attention to a wholly hypothetical set of circumstances defined by excluding all features of the disability. The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the 'discriminator'. It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person's disability. There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different. In the present case, the circumstances in which [the student] was treated as he was, included, but were not limited to, the fact that he had acted as he had. His violent actions towards teachers and others formed part of the circumstances in which it was said that he was treated less favourably than other pupils. Section 5(1) then presented two questions: (i) How, in those circumstances, would the educational authority have treated a person without [the student's] disability? (ii) If [the student's] treatment was less favourable than the treatment that would be given to a person without the disability, was that because of [the student's] disability? Section 5(1) could be engaged in the application of s 22 only if it were found that [the student] was treated less favourably than a person without his disability would have been treated in circumstances that were the same as or were not materially different from the circumstances of [the student's] treatment." (Emphasis in original). See also at 100-101 (per Gleeson CJ); Zhang v University of Tasmania (2009) 174 FCR 366 at 384-5 (per Jessup and Gordon JJ).

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An Effective Behaviour Management Plan 83 James alleged that the Department directly discriminated against him by failing to provide him with an "effective Behaviour Management Plan". The FCSOC particularised an effective behaviour management plan as being a "positive behaviour plan … proven to be effective for children with James' disabilities" which was "based upon [ABA therapy] and designed to meet his individual needs", containing "goals, strategies, measurable outcomes, data collection, regular monitoring and evaluation for effectiveness" and "should have been altered according to analysis of data recorded in relation to James' achievement of goals." 84 Any behaviour management plan had to be "adequate to accomplish a purpose; producing the intended or expected result". 85 James complained that the form and substance of such plans as were adopted by the various school authorities did not satisfy these criteria. He also complained that, during some periods at some schools, no such plan was in place for him. 86 In 2005 James was in the preparatory grade. He was five years old. At Bulleen Heights there was a process for the formulation of behaviour management plans which, where necessary, might involve a multi-disciplinary team of staff. James' classroom teacher Ms Glenis Vieux had a behaviour management plan for him (though it was not labelled as such) which was written on a whiteboard or placed on the wall. The purpose of the behaviour management plan was to set goals and put strategies in place to achieve those goals. Ms Vieux analysed James' behaviour on a daily basis. She sought and was provided with information from his parents about behaviour management strategies which they employed. She used a variety of these strategies with James, including limiting tasks to short periods, adopting a calm gentle approach, asking James to use "gentle hands" and utilising rewards and time-out. These strategies were recorded in the behaviour management plan and communicated to Mr and Mrs Kiefel. 87 In 2006, at Wantirna Heights, there was a process for the formulation of behaviour management plans where necessary. James' classroom teacher Ms Ranjit Kaur did not use a formalised behaviour management plan, preferring to use her own work program. She did not seek the assistance of a multi-disciplinary team. She used a variety of measures in the classroom and discussed the approach she was taking with Mr and Mrs Kiefel. The informal working plan was communicated to other school staff and documented in the minutes of staff meetings. In 2007, James' teacher Ms Heather Mosley also employed a range of behaviour management strategies and gave evidence that these strategies were recorded in a formal behaviour management plan, though no such document was available for production at trial. A psychologist was involved in the review of the strategies used. 88 At Essex Heights, there was a process for the formulation of a behaviour management plan. According to the principal of Essex Heights, Mr Christopher Cotching, and James' classroom teachers there were strategies in operation in 2008 to manage James' behaviour. The school adopted techniques suggested by the aides who worked with James. On 12 March 2008, James' psychologist Ms Helen Salter attended the student support group meeting and assessed James in the classroom. On 23 May 2008, a meeting involving Ms Salter was called for the specific purpose of considering James' behaviour. 89 Prior to March 2009 a formal behaviour management plan had not been prepared. By 23 March 2009, however, James' behaviour had become a significant problem. A formal behaviour management plan was prepared which adopted suggestions made by Mrs Kiefel and Ms Salter. The plan covered: • James' "Classroom Code of Conduct"; • Rules that applied to James, including completing activities in accordance with a visual timetable, not touching anyone and speaking quietly; • Positive consequences that applied to James if he followed directions, completed tasks or demonstrated appropriate behaviours; • Strategies to be utilised including following a daily schedule, taking breaks as required, clear verbal indications by adults of safe classroom behaviours and techniques to improve and increase language and communication; • Techniques for management including where James continued to make disruptive noises or became physically aggressive; and • Processes should James demonstrate physical aggression towards children or adults. Further revisions to the Essex Heights behaviour management plan were made in May and September 2009. 90 A psychologist, employed by the Department, Ms Zoe Morris, was actively involved in these processes. She made a psychological assessment of James. She attended student support group meetings at the school at which Mrs Kiefel was also present. Ms Morris also made a visit to the family home in order to assist her understanding of James' needs. 91 There can be no doubt that behaviour management plans of varying forms were prepared by and implemented in the three schools which James attended prior to August 2009. What was put in issue by James was the effectiveness of the various plans. Even if it be assumed in his favour that offending conduct can be identified in this way (a matter to which I will return in the context of his indirect discrimination claims), direct discrimination can only be found if James established that the shortcomings of the plans which were adopted can be attributed to his disabilities. 92 The plans, such as they were, were adopted in order to deal with James' disabilities. Any deficiencies in those plans (if there be any) were caused by errors of judgment or inadequacy of resources or other causes unrelated to his disability. James failed to establish that the deficiencies about which he complained occurred because of his disabilities.

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Individual Education Plan 93 James alleged that the Department directly discriminated against him by failing to provide him with "an Individual Education Plan developed to address [his] disabilities". He pleaded that such an individual education plan should have included: • An "appropriate modified curriculum … developed and overseen by professionals expert in [his] disabilities to ensure he could reach his educational potential". James claimed that the modified curriculum should have been based on ABA therapy and developed pursuant to the Department's policies and guidelines. James asserted that the modified curriculum should have contained "goals, strategies, measurable outcomes, data collection, regular monitoring and evaluation for effectiveness" and "should have been altered according to analysis of data recorded in relation to James' achievement of goals". • An "appropriate individualised program" based upon ABA therapy, developed according to the Department's policies and guidelines. James maintained that the individualised program should have contained "goals, strategies, measurable outcomes, data collection, regular monitoring and evaluation for effectiveness" and "should have been altered according to analysis of data recorded in relation to James' achievement of goals". He further alleged that the program "should have been of the type proven … to be effective for children with [his] disabilities, and designed to meet his individual needs". • A "language/communication program … developed and overseen by professionals expert in his disabilities" that should have been "of the type proven … to be effective for children with [his] disabilities, designed to meet his individual needs." He alleged that the language/communication program should have contained "goals, strategies, measurable outcomes, data collection, regular monitoring and evaluation for effectiveness" and "should have been altered according to analysis of data recorded in relation to James' achievement of goals". He reiterated that the program required was "a Verbal Behaviour Program, which is part of an [ABA] program." 94 Again, James did not allege that the Department had failed to provide some service to him because of his disability. The substance of his complaint was that individual education plans which satisfied the content and quality standards which he considered to be appropriate had not been provided for him. 95 In 2005 at Bulleen Heights a program support group meeting for James was held in the third week of term 1. It was attended by Mr and Mrs Kiefel. The school's observations in relation to James were discussed, as well as, in general terms, the types of programs which were to be offered, and the themes of those programs. School staff advised that James' individual learning plan would cover all of the curriculum areas prescribed by the Department's directives. Following the meeting, an individual learning plan was drawn up by Ms Vieux, listing specific learning goals for James. A copy was subsequently sent to Mrs Kiefel who commented in James' communication book that the goals "seemed realistic". In preparing and revising the individual learning plan, Ms Vieux, from time to time, consulted the school psychologist and other staff such as Ms Kate Lambeth, the school occupational therapist. ABA therapists were also consulted. For ease of reference for all staff working with James, Ms Vieux also prepared a summary of his goals in table form. James' learning goals were recorded in his school reports while he was a student at this school. 96 At Wantirna Heights, individual learning goals for James were agreed during a parent support group meeting on 7 March 2006. The minutes of that meeting record discussion of suggested long term goals in each area of James' curriculum and Mrs Kiefel's programming requests. No document formally labelled as an individual education plan was, however, created. James' progress against the goals set was discussed at a number of student support group meetings. Further support group meetings were held on 14 September 2006 and 7 March 2007. After the March meeting a formal individual education plan was prepared. That plan outlined James' goals specific to each area of the curriculum. A document listing James' long term goals for 2007 was also created. The goals which were set for James during the course of 2006 and 2007 were recorded in his school reports from that time, as were his achievements which were assessed against those goals. 97 When James first enrolled at Essex Heights at the start of 2008, the individual education plan which had been formulated for him at Wantirna Heights was used so that his progress towards achieving the goals which it incorporated could be assessed. James' classroom teacher, Ms Lois Banihashemi, was also provided with James' school reports from Wantirna Heights. Once the Essex Heights staff had been able to assess James' capabilities against the plan received from Wantirna Heights, a formal individual learning plan was documented. This occurred in 2009 in part because James had not attended many classes during terms 1 - 3 in 2008. The plan was discussed during a student support group meeting which was attended by Mrs Kiefel and Ms Salter on 24 March 2009. 98 Individual education plans were prepared and given effect to at each of the three schools attended by James prior to August 2009. James has made various complaints about the adequacy and quality of these plans. He has done so by devising a set of criteria which serve, at a general level, to identify the content of the plans which he considered to have been "appropriate" for his needs. In particular he was concerned that an ABA program should be incorporated in all plans. 99 I again put to one side the issue of whether it is open to a complainant in a case, brought under the DDA, to erect and then rely upon the failure of a respondent to provide services at a level which meets propounded standards, as a basis for asserting that he or she has been treated less favourably than others. This can be done because the complaint fails at a more fundamental level. James has not argued or established that any failure occurred because of his disability much less that the Department treated him less favourably than it would have treated other students who did not suffer from his disabilities in the same or substantially similar circumstances.

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Provision of ABA Therapy 100 As already noted, one of the reasonable adjustments identified in paragraph 19 of the FCSOC was an individual education plan developed to address James' disabilities. James contended that an essential element of that plan was a language/communication program which "should have been of the type proven [that is, a program, that has had its effectiveness established through measures including testing, research, and comparative analysis] to be effective for children with James' disabilities, designed to meet his individual needs." The program which met this requirement was said to be "a Verbal Behaviour Program, which is part of an Applied Behaviour Analysis Program." There are three references to ABA in the section of the FCSOC which is headed "The Discrimination". The first (in paragraph 31) alleges that, when James was at Wantirna Heights in 2006 and 2007, the Department "failed to implement a verbal behaviour program (Applied Behaviour Analysis) for James to enable him to improve his communication." In paragraph 46 it was alleged that, in 2008, when James was attending Essex Heights, Mrs Kiefel had provided materials regarding ABA to the Department "to assist it in supporting and addressing [James'] behaviour" but the Department failed to use them. The third reference to ABA appears in paragraph 56 which reads: "In November 2010, the [Department] told [Mrs Kiefel] that it would not provide the adjustments James required, namely an Applied Behaviour Analysis (Verbal Behaviour) approach to his education. The [Department] told [Mrs Kiefel] that it did not provide programs of this type." 101 The first of these allegations was not, ultimately, pressed at trial. This was because the Department tendered an e-mail from Mr Kiefel to the Department in which he said that he and his wife wished to move James to Wantirna Heights in order to pursue something other than ABA therapy. Confronted with this e-mail Mrs Kiefel admitted that she and her husband chose to move James to Wantirna Heights because the school did not offer ABA therapy. 102 The second allegation was that the Department had failed to use some materials relating to ABA therapy which had been provided to it by Mrs Kiefel in 2008. The Department contended that James' teachers at Essex Heights did take account of and use these materials in the classroom where appropriate. 103 This allegation falls to be tested by reference to the provisions of s 5 of the DDA as it stood prior to August 2009. It must fail for a number of reasons. The first is that James' teachers at Essex Heights in 2008 gave evidence (which I accept) that some use was made of the material provided by Mrs Kiefel. It may be that the materials were not used as regularly as Mrs Kiefel might have wished but this resulted from pedagogical choices made by his teachers and not because of his disabilities. 104 The third allegation relates to events which are said to have occurred in 2010. It, therefore, must be assessed under the amended s 5 of the DDA. I will return to this aspect of the matter later in these reasons.

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Speech Therapy 105 James' FCSOC alleged that he required "speech therapy and a speech therapy program" to address his "articulation, volume, prosody and pitch". It was claimed that the speech program should have "contained goals, strategies, measurable outcomes, data collection, regular monitoring and evaluation for effectiveness, and should have been altered according to analysis of data recorded in relation to James' achievement of goals". James complained that the Department had failed to provide such a program or any "formal communication program". 106 It should be noted that, on the face of the FCSOC, there is some uncertainty about whether it is pleaded, as part of James' pre-August 2009 direct discrimination case, that the Department failed to provide speech therapy during James' enrolment at Essex Heights. Although speech therapy was dealt with in the section of the FCSOC which outlined the "reasonable adjustments" which James required, this was not related to any allegations of direct discrimination alleged to have occurred prior to August 2009 and the section which outlined "The Discrimination" does not refer to a failure to provide speech therapy at Essex Heights. I will deal with it nonetheless. 107 The FCSOC does not particularise the elements of the speech program that James needed and the techniques and strategies which he suggests should have been used are not identified. James' closing written submissions, however, stated that: "A Speech/Language program requires assessment and contains written goals, strategies, measurable outcomes, data collection, monitoring and evaluation. It requires supervision by a Speech Pathologist." As can be seen this represents a departure from the case as pleaded. 108 At Bulleen Heights in 2005, James' class was visited by a speech therapist once a fortnight. The therapist delivered sessions to the whole class and worked individually with the children in small groups. As all of the children enrolled at Bulleen Heights had significant expressive and receptive language delay, speech therapy tended to be delivered in a group. Ms Vieux consulted the speech therapist when necessary and conducted speech work with students on a daily basis. There was also an expressive language program within the ABA therapy program which was provided by the school. 109 In 2006-2007 at Wantirna Heights, the school engaged two speech pathologists, from whom James received speech therapy. In term 1 of 2006 James was referred by his classroom teacher Ms Kaur for speech therapy. Ms Kaur met with the speech pathologist Ms Karen Chen and informed her of James' needs. After this Ms Chen observed James in the classroom on three occasions. Ms Chen delivered speech therapy to James regularly both in the classroom and elsewhere. In term 2, James attended individual speech therapy sessions weekly. Speech therapy reports were prepared in relation to both semesters. In terms 1 and 2 of 2007, the speech therapist, Ms Katherine Anderson, observed James in the classroom three times and conducted 12 PECS (Picture Exchange Communication system) sessions with him. Each of those sessions was between 15 and 30 minutes in duration. During terms 3 and 4 of 2007 James had 15 individual speech therapy sessions. Each of those sessions lasted between 15 and 30 minutes. Ms Anderson acknowledged that she was responsible for 44 students. This only allowed her one session per student per week. 110 Ms Anderson tracked James' progress using specified criteria in the PECS manual and saw improvements in his language and communication skills. She believed PECS was a program that assisted James to reach his full potential to acquire verbal communication. At trial, Ms Anderson explained that the PECS program uses visual aides to support language. She said that James responded well to visuals and these helped him develop verbal language. Her evidence was not challenged. There was no evidence which suggested that the use of PECS was inappropriate for James. 111 At Essex Heights, speech therapy services were available to students upon request. They were not requested for James, and, for this reason he did not receive speech therapy whilst at this school. It was the view of his classroom teacher that James' language difficulties were being addressed through the ABA program in which he was engaged. 112 Speech therapy was made available to James at both Bulleen Heights and Wantirna Heights. Again, the substance of his complaint is not that such services were not provided but, rather, that they were inadequate for his needs. Whether that be so or not the evidence cannot support the claim that he was not provided with speech therapy services at these schools. Any deficiency in the quality of these services has not been demonstrated to have occurred because of his disabilities. 113 Speech therapy services were made available at Essex Heights but James' parents did not avail themselves of them. It was for that reason and not because of his disability, that James was not provided with such services at that school.

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Restraint, injuries and physical abuse 116 James submitted (though it was not pleaded) that teachers at Bulleen Heights used "restraint" on him by holding his hands, forcing him to stay seated whilst holding his arms and applying "general" restraint techniques which are "unknown and undocumented". He said that these techniques were used despite the availability of other, more moderate, responses. 117 It was alleged that staff at Wantirna Heights also used "restraint" on James. He claimed that staff stood behind him and held his hands, forced him into a bathroom area and placed him on a chair. It was asserted that these techniques were not used as a last resort. In particular, it was alleged that, during the first two weeks of February 2006, James came home from school with a "large pronounced bruise on his upper arm in the size and shape of an adult hand". It was also alleged that, on 23 July 2007, he arrived home from school with a long deep scratch on the back of his neck after an "interaction" with school staff. 118 James asserted that, whilst at Essex Heights, in early 2009, he was subjected to restraint and "physically abused whilst in the care of the [Department's] staff, resulting in physical injuries". Specific incidents of alleged abuse were identified as follows: • On 3 February 2009, James arrived home with bruising on his upper arms and shoulder. He intimated that Ms Sue Kemp, his aide, had caused the bruising. • On 24 February 2009, James arrived home with a small deep scratch on his neck and bruising on his arms and shoulders. • On 3 March 2009, James arrived home with bruising on his arms and shoulders. • On 17 March 2009, James arrived home with a small deep scratch on his neck and bruising on his arms and shoulders. He again intimated that Ms Kemp had hurt him. • On 19 March 2009, James arrived home with bruising on his arm, back and side. • On the Thursday before the end of term 2, Mrs Anne Scerri pulled him out of his chair by the pants and pushed him outside the classroom door into the corridor. 119 There was no eye witness evidence called by James to support any of these allegations. The Department called evidence from those of his teachers and aides who were responsible for James at the times at which the injuries were allegedly inflicted. Each denied knowledge of any incidents in which they had caused injury to James. They did, however, concede, properly, the possibility that, in some cases, the alleged injury could have occurred without their knowledge if they were defending themselves against James or attempting to protect him from injury. For example, James' classroom teacher Ms Mosley gave detailed evidence in relation to the incident alleged to have occurred at Wantirna Heights on 23 July 2007. She said that the incident occurred when he became upset when he discovered that a piece of cake which he expected to find in his lunchbox was not there and he threw himself back on his chair. A staff member tried to break his fall. The incident was investigated by the school principal, Ms Gail Preston, who subsequently reported to Mrs Kiefel that she had no reason to believe the injury was intentionally inflicted. Mrs Kiefel agreed that she had never suggested that the injury was caused intentionally and denied that she instructed her lawyers that physical restraint had been applied to James on that occasion. 120 Ms Kemp had no recollection of any event of 3 February 2009 which would have caused bruising to James' upper arms and shoulders. She speculated that, had he attempted (as he sometimes did) to hit or kick her, she may have grasped him by the shoulders to keep him at arms length. 121 Neither Ms Kemp nor James' class teacher, Ms Scerri, recalled any incident which had occurred on 24 February 2009 and which might have led to James sustaining a scratch on his neck. 122 Ms Kemp had no recollection of any incident which occurred on 3 March 2009 and which may have led to James sustaining bruising to his arms and shoulders. Nor did she have any recollection of incidents occurring on 17 or 19 March 2009 which could have caused scratches or bruising to James. 123 Ms Scerri made a diary entry on 25 June 2009 recording that, on that day, James had pulled her hair. She did not recall any occasion on that or any other day on which she had pulled James out of his chair and pushed him into the corridor. 124 James argued that it was "immaterial" whether any injury suffered by him occurred by reason of the deliberate or inadvertent acts of his teachers or aides. His case, as finally put, was that any injury to him or to staff was "reflective of an unacceptable and critical situation". 125 The physical abuse of young children is reprehensible. An allegation of this kind is all the more serious when it is levelled against persons who are charged with the care of a disabled child. The teachers and aides who were responsible for the care of James on the days on which it was claimed that he had sustained injuries while at school were called to give evidence. Without exception they impressed me as being dedicated and caring educators. Each displayed an understanding of James' disabilities and the manifestation of those disabilities in the school setting. Some, such as Ms Mosley, had clear recollections of events which may have led to James suffering bruising or abrasions. Others had no recollection of specific incidents on specific days but speculated that incidents may have occurred on those days which may have made it necessary for them or other staff to have physical contact with James to prevent him harming himself or others. Such contact may, possibly, have caused bruising or scratching that they had not observed. 126 I have no hesitation in accepting the evidence of these teachers and aides. Any physical contact they had with James was justified and proportionate to the occasion. Such contact often occurred as an instinctive reaction in order to protect James from falling or causing harm to others. It did not occur with the intention of inflicting physical harm on him. On the contrary, the physical contact was often necessary to avoid harm. 127 It must also be emphasised that physical contact of this kind did not occur because of James' disabilities.

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The "bathroom incident" and seclusion 128 A centrepiece of James' case of direct discrimination was the allegation that, at Wantirna Heights in mid-2006, he "was forcibly placed in a windowless timeout room for approximately 40 minutes". He claimed, that as a result of this confinement, he sustained physical injuries. 129 Ms Patricia Docking, who was James' aide at the time, explained that a bathroom adjoined the classroom and was accessible by a door which opened from the classroom. Ms Kaur, James' classroom teacher, said that his behaviour on the day in question was "rather intense and ferocious" and that "time out" was used when he was not responsive to other strategies. James had previously been given "time out" within the classroom but had lashed out at other students and staff. As a result, Ms Kaur saw the adjoining bathroom as a "safe area" within which he could have time away from the classroom environment and calm down. He was placed in the bathroom close to the door, which was never shut. Ms Kaur stood in the doorway so that she could see him whilst keeping an eye on the other children in the classroom. She explained that this was intended as "a circuit-breaker … to give [James] time to calm down … the procedure was non-punitive." Ms Docking confirmed this account and stated that every few minutes James was asked if he was ready to come out. 130 The time spent by James in the bathroom was recorded in his communications book by Ms Kaur by way of note to Mrs Kiefel. The note stated that "[James] has been very distressed all day … After lunch/play he was still very distressed and aggressive unfortunately … He was attempting to bite, head butt, kick and scratch staff and students. Left him to be by himself for about 40 minutes before he was calm enough to join the group. Hope he feels better when he gets home." Mrs Kiefel did not respond to this communication. 131 Wantirna Heights had a designated time out room, established pursuant to school policy. A student could not be placed in this room without prior parental consent. Such consent was not sought or obtained from Mrs Kiefel. Indeed, Ms Kaur said that she would not have sought permission to use the time out room in James' case due to his age. James was never sent to this room. It was submitted by the Department that it was clear that the method of directing James, on occasions, to sit on a chair in the adjoining bathroom was not being used as a proxy for the time out room or as a means of punishment. 132 Ms Lois Thomsen, who was principal at Wantirna Heights during 2006 and 2007, was asked about this bathroom incident when she was cross-examined. She expressed the view that requiring a student to take time out in a bathroom for 40 minutes was "not appropriate". Her successor, Ms Preston, expressed a similar opinion. 133 I accept the evidence of Ms Docking and Ms Kaur. They were confronted with an unfortunate situation in which James was acting aggressively and was disrupting the class. After a number of strategies had been employed without success in an effort to calm him down he was taken to the bathroom and kept there for some 40 minutes until his teachers were satisfied that he had settled and was able to resume his place in the classroom. They did not take these steps because of James' disabilities. I am not unmindful of the opinions expressed by the two principals. They were not, however, involved in the management of the classroom on the day on which James was placed in the bathroom. The class teacher and James' aide had to cope with a difficult situation. The issue, for present purposes, was not whether they made the correct or preferable decision. It is whether what they did constituted direct discrimination within the meaning of the DDA. For the reasons I have given it did not.

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Direct Discrimination Post-August 2009 144 To establish this part of his case, it was necessary for James to demonstrate that the Department directly discriminated against him in the sense in which the term was used prior to 5 August 2009 or that it had failed to provide reasonable adjustments to James and that that failure had the effect that he was treated less favourably than a person without a disability was treated in circumstances that were not materially different. 145 In his FCSOC, James alleged that the Department discriminated against him in contravention of ss 5 and 22 of the DDA as it stood both before and after the 2009 amendments. It is, therefore, necessary for me to consider James' s 5(2) claim in relation to his attendance at Essex Heights after 5 August 2009. 146 In his written submissions, James alleged that: "3.1 Essex Heights failed to make reasonable adjustments for [James] (s 5(2)(a)). The reasonable adjustments are set out in paragraph 19 of the FCSOC. 3.2 The failure to make those reasonable adjustments had the effect that [James] was treated less favourably than a student without disabilities in circumstances that were not materially different (s 5(2)(b)). 3.3 The circumstances were not materially different because of the fact that [James] required the adjustments due to his disability (s 5(3))." 147 These allegations are simply a paraphrase of that part of the statutory definition of direct discrimination contained in s 5(2) of the DDA. 148 At paragraph 19 of his FCSOC James alleged that the following "reasonable adjustments" should have been made by the Department: a. Significant, if not full-time one to one assistance from a person trained in effective educational and social approaches (Applied Behavioural Analysis) to address James' disabilities, and skills with which to overcome or minimise the impediments his disability posed; b. An individual education plan to address James' disability including: b.1. appropriate modified curriculum; b.2. appropriate individualised program; b.3. language/communication program (verbal behaviour); c. An effective behaviour management plan; d. Speech therapy program; e. Facilities to enable him to communicate through actions rather than words when he was unable to communicate something verbally; f. Predictable routines and structure; g. Adequate supervision. 149 I will consider each of these "reasonable adjustments" in turn. Before doing so, however, I must again record the analytical difficulty occasioned by the use made in the applicant's pleadings of adjectives such as "significant" and "effective" when seeking to identify particular measures as "reasonable adjustments".

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Provision of ABA Therapy 160 James complained that he had not been provided with an ABA program in 2010 at Essex Heights. 161 Before dealing with this alleged failure it is necessary to deal with another deficiency in the applicant's pleaded case. The difficulty arises because the evidence clearly established that elements of ABA therapy were incorporated in James' program at Essex Heights. The complaints contained in paragraph 56 of the FCSOC must, therefore, be understood to be complaints about the adequacy of the content and mode of delivery of such programs. Despite attempts by the Department and the Court to have James' legal advisers particularise these deficiencies they failed to do so. 162 ABA therapy is a method of treating and assisting sufferers of ASD. It can take a number of forms. One form is the 40 hour per week one-to-one model which is offered by the institution which James is attending in the United States. ABA therapy is also delivered in groups and one-to-one sessions for shorter periods. It is but one of a range of treatments which are regularly employed to assist those suffering from autism. It is not a mainstream method of treatment. Its efficacy is the subject of professional debate. 163 The foundational study (referred to in the literature as the Lovaas study) was conducted in 1987. It covered a two year period during which 19 students were provided with ABA therapy on a one-to-one basis. A majority of the students failed, at the end of the studied period, to demonstrate any gains to normal functioning. A later study (referred to as the McEachin study) followed the subsequent progress of some of the children involved in the Lovaas study. It concluded that the majority of the children who had participated in the Lovaas study did not achieve "normal functioning" later in life. 164 Professor Margot Prior was called by the Department. She is a professorial fellow at the University of Melbourne and had been the Director of Psychology at the Royal Children's Hospital. She was an acknowledged expert in the treatment of children suffering from autism. She adopted a report which she had co-authored in 2006 in which she summarised the results of relevant scientific studies: "There is universal agreement well supported by evaluation research, that behavioural interventions have produced positive outcomes for children with autism. However, there continues to be a great deal of controversy about particular behavioural interventions and programs and differences in the interpretation of research findings. Early intensive behavioural intervention programs, exemplified by the Lovass program which uses ABA and DTT, are among the most controversial intervention strategies for children with autism. This controversy revolves around outcome claims, exclusivity, extensive use and personnel. The authors of [a review done in British Columbia] draw the following conclusions in relation to intensive behavioural intervention programs: • The Lovaas (1987) and McEachin (1993) studies, while methodologically stronger than published reports of alternate comprehensive therapies, are inadequate to establish the degree to which this form of therapy results in children achieving "normal" functioning, however defined. • There is insufficient evidence of effectiveness to establish a relationship between the amount (per day and total duration) of any form of early comprehensive treatment program and overall outcome. • Randomised trials of alternative early intensive treatment programs are ethical and feasible to advance research knowledge. • There is insufficient evidence of effectiveness to conduct a cost-benefit analysis of early, intensive treatment programs in terms of "normalisation" of children diagnosed with autism. It remains the case that without a soundly based determination of the extent to which the intervention may result in benefit, and the degree of any such benefit, cost-benefit analyses have no basis on which to proceed." 165 While recognising that ABA can be of help to some children when delivered on a one-to-one basis, she acknowledged that, for others, it was of no benefit or of little benefit. She regarded such therapy as an "option" in the armoury of treatments which may be of assistance to children. She said that, at a general level, ABA had the potential to be of great value in that it produced positive outcomes for children within ASD. Whether it did or not depended on the particular child's needs. ABA could be offered in varying ways depending on settings, time available and the degree of parental involvement. Professor Prior said that intensive ABA therapy of the kind which can be delivered on a one-to-one basis or in small groups had rarely been delivered in mainstream schools in Australia. There was, therefore, no material in the literature which assessed the efficacy of such programs. 166 Assistant Professor Judah Axe was one of two American experts called by the applicant. He was a strong supporter of ABA therapy and, at times during his evidence, he crossed the barrier between expert and advocate. He also sought to bolster the case for the acceptance of ABA therapy by falsely stating (as he conceded under cross-examination) that "the United States Surgeon General recommends ABA as the foremost treatment for children with autism." Professor Axe considered that ABA should be used to treat all children suffering from autism. He adopted this position notwithstanding his acceptance of the proposition that scientific studies had not provided sufficient evidence of the efficacy of ABA as a universal method of treating the condition. 167 Professor Axe was aware of a number of special schools which delivered ABA therapy on a one-to-one basis for 40 hours per week in the United States. He was not, however, aware of any mainstream schools in that country which did so. 168 The other American expert called by the applicant was Dr Patrick McGreevy. He is a behavioural analyst with a doctorate in education. At the time that he gave evidence he had observed James on one occasion in the classroom in the United States. He was not in a position to provide any personal assessment of James. He was, however, a proponent of ABA therapy. Dr McGreevy said that ABA had "arguably been the most significant influence on the institutional methodology employed" to deal with ASD. Dr McGreevy generally agreed with Professor Prior's assessment that a significant number of children with autism who are provided with ABA therapy do not respond positively to that therapy. He said that ABA could be delivered to some autism sufferers in a mainstream classroom but it needed to involve at least some one-to-one therapy. This was not possible for all such children, particularly those whose condition disposed them to aggressive behaviour towards fellow students and teachers. A classroom setting might not also be suitable for children who may become anxious in response to visual or auditory stimuli. 169 Each of the experts accepted that factors such as early intervention, IQ and language capacity were predictors of success in the provision of ABA therapy. None was, however, in a position to assess James against these predictors. 170 A number of other witnesses, one called by the Department, gave qualified but positive evidence relating to ABA therapy. Ms Zoe Morris said that ABA was one good treatment option for children with ASD. Ms Perrett-Abrahams also expressed positive views although she had never assessed James or previously given any expert evidence relating to ASD. 171 I return now to the allegation of direct discrimination by reason of the alleged failure of the Department to provide James with ABA therapy in 2010. That allegation is contained in paragraph 56 of the FCSOC and appears above at [100]. 172 The third ABA-related allegation arises from correspondence from Ms Ina Keuhlich to Mrs Kiefel dated 12 November 2010. Ms Keuhlich was the Assistant Principal at Essex Heights in 2010. This letter was not admitted into evidence. In her response to this letter, dated 17 November 2010, Mrs Kiefel confirmed Ms Keuhlich's assertion that the "school does not need to provide an ABA or verbal behaviour program to [James]." At trial Ms Keuhlich explained that the school was not "set up" to provide a full ABA therapy program for James. In particular it was not able to provide a one-to-one program and such a program could not be delivered in the type of mainstream classroom which James attended. 173 In order to put this allegation in context it is necessary to record something of the history of the matter. At some stage during 2009 Mrs Kiefel had raised with the principal at Essex Heights, Mr Cotching, the possibility that James might be assisted by a "verbal behaviour" program. Staff at the school were not aware of what was involved in the provision of such a program in the classroom. In September 2009 enquiries were made by staff in order to determine whether the Department might be able to recommend or provide a person who could train them in ABA and verbal behaviour therapy. The Department made a recommendation but it was rejected by Mr and Mrs Kiefel. Nonetheless staff at Essex Heights did prepare verbal behaviour materials for use by James in the final term in 2009. 174 In 2010 the school persisted with its attempts to identify a suitable training provider. Eventually Ms Gebert was found and proved acceptable to Mr and Mrs Kiefel. This occurred in March 2010. Ms Gebert was to provide verbal behaviour training for staff and to advise on the development of a return to school program for James. This work took some time because of Ms Gebert's other commitments and some health problems experienced by her. 175 The literal allegation made in paragraph 56 of the FCSOC has not been made out. The Department did not tell Mrs Kiefel in November 2010 (or at any other time) "that it would not provide …. an Applied Behavioural Analysis (Verbal Behaviour) approach to [James'] education" or that "it did not provide programs of this type." Mrs Kiefel was advised by Ms Keuhlich that the school did not need to provide such a program to James and that the school did not have the facilities or resources to provide a one-to-one program in a mainstream classroom. I am, nonetheless, prepared to treat James' complaint as being one of failure to provide him with ABA therapy. 176 So understood, James' complaint must be assessed against the requirements of s 5 of the DDA in its present form. 177 Insofar as the complaint may be based on s 5(1) it must fail because any failure by the Department to provide ABA therapy at Essex Heights did not occur because of James' disability. It occurred, as Ms Keuhlich asserted, because the school was not "set up" to provide ABA therapy on a one-to-one basis in its classrooms - or at least was unable to do so on an intensive basis. It simply did not have the human and physical resources which would have been necessary to provide one-to-one instruction for 40 hours per week. 178 James' claim, in so far as it relies on s 5(2), must also fail. The complaint in paragraph 56 of the FCSOC does no more than record that Mrs Kiefel was "told" that the school would not provide James with an adjustment which he was said to require. That adjustment was said to be "an Applied Behavioural Analysis (Verbal Behaviour) approach to his education." It may be assumed that such provision is alleged to constitute a "reasonable adjustment" for the purposes of s 5(2). 179 Despite what Mrs Kiefel was allegedly "told", the evidence established that some elements of an ABA program were made available to James at Essex Heights. These elements were those adjudged by Ms Keuhlich and Ms Zoe Morris (a psychologist) as being compatible with instruction in a mainstream classroom. As already noted, the statement attributed to Ms Keuhlich did not amount to a blanket refusal to provide ABA therapy. What she conveyed to Mrs Kiefel was that the school was not in a position to provide intensive ABA therapy on a one-to-one basis. 180 It is at this point that the failure of James' legal advisers to provide particulars of what was comprehended by "an Applied Behaviour Analysis (Verbal Behaviour) approach" becomes acute. If the form of ABA therapy which was made available met the pleaded description then there was no basis for the complaint. If, on the other hand, a more intense or comprehensive form of ABA therapy was said to be required, the Court is left in the position of having to determine whether this constituted a reasonable adjustment without knowing precisely what it is said should have been, but was not, provided and without having any expert evidence before it which would permit a judgment to be formed about whether a more intense ABA program would have been of any benefit to James. 181 In the absence of a clear appreciation of what reasonable adjustment the Department should have but failed to make it is not possible, on the evidence, to make a finding of contravention of ss 5 and 22 of the DDA by reason of the non-provision of an ABA program to James at Essex Heights.

[51]

Predictable Routine and Structure 186 It was accepted by the parties that James required high levels of predictability and minimal change in his daily routine. Meeting James' needs in this respect was difficult in a mainstream classroom. Nevertheless, staff endeavoured to create routines and structure for him with the use of a written schedule which was provided to him. 187 On the Friday before school was scheduled to commence in 2010, for example, James was invited to attend Essex Heights for the purpose of showing him his new classroom and introducing him to his new teacher and aide. 188 In circumstances where changes to routine were anticipated, the staff endeavoured to advise Mrs Kiefel before the change occurred. 189 When James returned to Essex Heights in March 2010, following a period of absence, Mrs Kiefel and the principal, Mr Cotching, went to great lengths to plan and organise his first morning because of James' need for stability and routine. 190 In his FCSOC, James alleged that he experienced extreme distress which was directly caused by the Department's failure to organise an aide to work with him upon his return to the school and its failure to make his desk and books immediately available to him as he had anticipated. 191 When James returned to school in 2010, he was provided with aides who had worked with him during the previous year. The assertion that Essex Heights failed to organise an aide to work with James on his return to school is unfounded. 192 As to the second allegation, James was in the habit of putting his bag away and fetching his books from his chair-bag immediately upon his arrival at school. On occasion, James' books were not in his chair-bag. If this occurred James' books were immediately made available on request. Any such change in James' routine caused him distress and staff tried to ensure that such events were avoided. 193 On one occasion (which may have been the one referred to) James arrived at school to find that his desk and chair had been moved from their normal position. This had happened because they had been used the night before for parent teacher interviews. This disruption made it very difficult for James to settle into his morning routine. 194 Any disruption to James' routine and structure had the potential to cause him distress. The staff at Essex Heights sought to ensure, wherever possible, that such changes did not occur or, if they were unavoidable, James and his parents were forewarned. Despite the best efforts of staff there were occasions when unexpected events such as the moving of James' chair and desk did occur. Such events appear to have been relatively rare. When they did occur they occurred because of inadvertence, not because of James' disabilities.

[54]

INDIRECT DISCRIMINATION 199 In his FCSOC, James pleaded that: "59. Further and/or in the alternative, the [Department] discriminated against James in contravention of s.6 and s.22 (as it stood before and after the 2009 amendments) of the Act by reason of the matters alleged in paragraphs 21 to 57 inclusive. 60. The [Department] required James to comply with a requirement or condition, namely to access his education and to reach his academic potential without the reasonable adjustments he required, or the assistance adapted to his disabilities and learning difficulties (the 'requirement' or 'condition'). 61 James is, was, and will remain, unable to comply with the requirement or condition. 62. A substantially higher proportion of persons without James' disabilities were, and remain, able to access their education without the reasonable adjustments. 63. The failure to make reasonable adjustments has disadvantaged James. … 64. The [Department] denied and/or limited James' access to the benefit of receiving an education commensurate with his potential, and a safe learning environment. The [Department] subjected James to the detriment of not receiving an education commensurate with his potential, and not being provided with a safe learning environment. 65. The failure to provide the reasonable adjustments was not reasonable having regard to the circumstances of the case." 200 The matters alleged in paragraphs 21 to 57 of the FCSOC are outlined above at [68]. 201 As was the case with his direct discrimination claims it will be necessary, in dealing with these allegations, to distinguish between the terms in which s 6 of the DDA appeared both before and after 5 August 2009. As I have already observed, the FCSOC fails adequately to take account of these changes. 202 Before turning to deal with the various allegations of indirect discrimination it is necessary that attention be directed to the case law relating to the construction of s 6 of the DDA as it stood prior to the 2009 amendments.

[55]

The Authorities 203 The question posed by ss 6 and 22(2)(a) and (c) of the DDA, as they stood prior to 5 August 2009, is whether the educational authority, by imposing requirements or conditions which met the criteria specified in s 6, thereby denied or limited the student's access to any benefits provided by it or subjected the student to any other detriment: cf the formulation of FM Raphael in Minns v New South Wales (Department of Education and Training) [2002] FMCA 60 at [172]. 204 The terms "requirement or condition" import "the notion of compulsion or obligation": Sluggett v Human Rights and Equal Opportunity Commission (2002) 123 FCR 561 at 577 (per Drummond J). 205 In Walker v State of Victoria (2011) 279 ALR 284 (at 313-4 [190]-[194]) I referred to numerous authorities which had accorded these terms a wide and beneficial construction. I referred, in particular to the joint judgment of Sackville and Stone JJ (with whom Tamberlin J agreed) in Catholic Education Office v Clarke (2004) 138 FCR 121 at 143 where their Honours said that: "103 Second, the expression 'requirement or condition' in s 6 of the DD Act should be construed broadly to include any form of qualification or prerequisite, although the actual requirement or condition should be formulated with some precision: Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 at 185, per Dawson J; at 195-196, per McHugh J; Waters v Public Transport Commission, at 393, per Dawson and Toohey JJ; at 406-407, per McHugh J. In this respect, the legislation should be given a generous interpretation and an alleged discriminator should not be permitted to evade the statutory prohibition or indirect discrimination by defining its services so as to incorporate the alleged requirement or condition: Waters v Public Transport Commission at 394, per Dawson and Toohey JJ. 104 Third, an alleged discriminator may be found to insist on compliance with a 'requirement or condition' within s 6 even though the requirement or condition is not explicitly imposed. It is sufficient for the requirement or condition to be implicit in the conduct which is said to constitute discrimination: Waters v Public Transport Commission at 360, per Mason CJ and Gaudron J; at 393, per Dawson and Toohey JJ; at 407, per McHugh J. Hence in Waters v Public Transport Commission itself, it was held to be open to the Victorian Equal Opportunity Board to find that the removal of conductors from Melbourne's trams amounted to a requirement or condition that disabled people could fully avail themselves of the services only if they could use the trams without the assistance of conductors: see at 361, per Mason CJ and Gaudron J. 105 The appellants did not submit that the primary judge had failed to advert to or had incorrectly stated these principles. His Honour pointed out (at 351 [45]) that it is not inherent in high school education that a student undertake classes without the aid of an interpreter. Indeed, in the computer age it is not necessarily inherent that instruction be given in English or any other spoken language. His Honour also regarded it as significant that the appellants' schools were open for the reception and education of students with disabilities, including profound deafness. As his Honour observed, such students may be unable to receive or offer communications by means of any spoken language, except with the aid of an interpreter." 206 My reasons continued (at 314 [191] and [192]): "191 A similarly framed complaint was accepted, in Hurst v Queensland (2006) 151 FCR 562, where the requirement was identified by the Full Court as being that the student 'be taught in English (including signed English) without the assistance of an Auslan teacher, or an Auslan interpreter.' 192 Other 'requirements' which have been accepted as falling within the terms of s 6 of the DDA in cases involving the provision of educational services include: • A requirement that a student comply with the conduct required by the school discipline policy: see Minns at [247]; • A requirement that students use course materials which were provided by the educational institution: see Hinchliffe v University of Sydney (2004) 186 FLR 376; and • A requirement that students at a school utilise a toilet in another building rather than one in the same building as their classroom: see Travers v New South Wales (2001) 163 FLR 99." 207 Although these authorities demonstrate that considerable latitude is afforded to applicants in formulating the requirements or conditions about which they complain, there must, of necessity, be an attempt to identify the substance of what is embraced by the words "terms and conditions". 208 In the context of s 6 they suggest some form of stipulation which has on-going effect. In this sense they can be contrasted with ad hoc responses by persons employed by a respondent when they are confronted with a particular incident involving the applicant. 209 Secondly, the stipulation must be expressed with some precision. This is particularly necessary where the term or condition has been framed by an applicant and attributed to the respondent. The greater the generality in which the alleged term or condition is framed, the less likely it is to be a term or condition for the purposes of s 6. 210 The authorities do not support the view that alleged stipulations containing qualifying adjectives such as "effective", "appropriate", "significant", "predictable" and "adequate" can constitute "terms and conditions" for the purposes of s 6. Nor do these cases suggest that applicants can frame terms and conditions in such a way as to cause a Court to undertake an evaluation of the manner in which services are provided by the respondent. Whilst it might, for example, arguably, be permissible to allege that a student has been required to undertake his or her studies without the assistance of an individual learning plan, it must be doubted that formulations which import qualifications which invite an assessment of the adequacy or quality of the particular plan can properly be regarded as terms and conditions. Were it otherwise the Court would be called on to make value judgments and resolve conflicting expert evidence in order to determine what was comprehended by the alleged term or condition. 211 Even a tightly framed term or condition such as the student being required to undertake his or her education without the assistance of an ABA program will be problematic if there is no professional consensus about significant issues such as the likelihood that such a program will be beneficial for a particular student, whether, given the existence of alternative therapies, it is the preferred option in a given case and its utility in a mainstream classroom environment. The problem is compounded when (as in the present case) the expert evidence differs as to the appropriate manner and form of delivery of ABA programs and where differences exist about the qualifications necessary to supervise and deliver such programs. In the present context the framing of the condition in such terms does no more than beg a series of questions about what is comprehended by "an ABA program". 212 It is also to be borne in mind that the requirements or conditions with which s 6 of the DDA is concerned are "facially neutral". That is, they are expressed to have general application or application to a cohort or group which extends beyond those suffering from the relevant disability. Edicts which are expressly directed to a complainant are not, therefore, "requirements or conditions" within the meaning of s 6: see Walker at 321 [236].

[56]

The Pleaded Case 213 The terms in which James' indirect discrimination case is pleaded in the FCSOC render it difficult, if not impossible, to understand how that case is put. At the heart of the problem is the attempt to identify the relevant requirements or conditions by reference to "the reasonable adjustments he required" and the various matters alleged in paragraphs 21 to 57 inclusive of the FCSOC. These paragraphs, it will be recalled, contain a litany of acts and omissions on the part of the Department by which James was said to have been denied the reasonable adjustments identified in paragraph 19. As has already been seen, the identification of these reasonable adjustments is replete with qualifying adjectives. The result is that the precision which is essential in identifying a term or condition for the purposes of s 6 of the DDA is demonstrably lacking. The point can be demonstrated by reference to many examples. A couple will suffice. Paragraph 60 of the FCSOC when read with paragraph 19(c) identifies one requirement or condition as being that James "access his education and …. reach his academic potential without…an effective behaviour management plan". Similarly, paragraph 60, when read with paragraph 19(f), identifies another requirement or condition as being that James "access his education and …. reach his academic potential without…predictable routines and structure." 214 This lack of precision, of itself, means that no viable term or condition has been identified for the purposes of s 6 of the DDA. In the absence of a relevant term or condition James' case, insofar as it relates to indirect discrimination prior to August 2009, must fail. There are, in any event, additional reasons why his indirect discrimination case cannot succeed. 215 The FCSOC provided further "particulars of the circumstances of the case" to which reference was made in paragraph 65. These "particulars" were, in fact, an assortment of disordered, unsubstantiated complaints and statements, including, among other things, the following: • James was "injured by staff, has self-injured and has deteriorated behaviourally and emotionally" and that this resulted in James' family's decision to leave Australia. • The success of ABA therapy has "been evident since the 1960's" and best practice models of such approaches were available to the Department throughout the period of complaint. • The Department held itself out as a "leader in best practice and techniques formulated on evidence based research" but dealt with James in a manner which was not supported by any "best practice or evidence based research". • Attendance at school was compulsory. • The Department did not fulfil its obligations as set out in its own policies and guidelines. • James was a "young child without independent financial resources" and "the discrimination had significant adverse consequences upon James". • "[T]he relatively insignificant cost of compliance with the Act upon the [Department's] overall budget and other commitments". • The Department "breached the United Nations Convention of the Rights of Persons with Disabilities". • The Department "breached the Convention on the Rights of the Child". • "[T]he community standards and expectations within the State of Victoria". • "[T]he obligations James' teachers had pursuant to their registration with the Victorian Institute of Teaching." • "[T]he obligations the [Department] had pursuant to the Education and Training Reform Act 2006". 216 Most of these so called "particulars" are pitched at such a level of generality as to be unhelpful. They were subjoined to paragraph 65 and, as a result, appear to be designed to counteract any defence which the Department might plead under s 6(3) of the DDA. It will be remembered that that provision was not introduced into the DDA until 5 August 2009. These matters, to the extent that they have any bearing on the applicant's case, can only relate to the allegations of indirect discrimination which are said to have occurred after that date.

[64]

DISABILITY STANDARDS 233 Section 31 of the DDA empowers the Minister to formulate disability standards, inter alia, in relation to the education of persons with a disability. The Minister has formulated and published standards for education. He did so in 2005. They are entitled Disability Standards for Education 2005 ("the Disability Standards"). They came into operation on 18 August 2005. They applied from that date. They did not, therefore, apply at all stages of James' primary education. 234 The Disability Standards impose an obligation on education providers to "take reasonable steps to ensure that students with disabilities are provided with opportunities to realise their individual potential through their participation in education and training on the same basis as students without disabilities, and that they are not subject to discrimination": see Disability Standards for Education 2005 Guidance Notes at [4]. The Disability Standards provide a process by which this obligation can be met: see 4.2(3), 5.2(2), 6.2(2) and 7.2(5), 7.2(6). 235 Any breach of the Disability Standards is a contravention of s 32 of the DDA. If an education provider can demonstrate that it has acted in accordance with a disability standard then Part 2 of the DDA does not apply and the provider's conduct is deemed to be lawful under the DDA. 236 James alleged that the Department contravened s 32 of the DDA by breaching the particular Disability Standards which are mentioned in paragraphs 67-70 of the FCSOC. Particulars of the allegations are as follows: "67. The discrimination was contrary to Part 3 of the Disability Standards in that: a. since 2005 it was reasonable for the [Department] to provide the reasonable adjustments to James, but it did not do so (Part 3.4); b. since 2005, it was reasonable for the [Department] to make proper enquiries as to what adjustments were required for James, but it did not do so (Part 3.4(2)); c. since 2005, it was reasonable to procure the opinions of expert professionals by way of their involvement in Program Support Group meetings but that did not occur (Parts 3.4 and 3.5); d. since 2005, it was reasonable for James to be taught by someone trained and familiar with his disabilities but that did not occur except where employed by James' parents (Part 3.4); e. since 2005 it was reasonable to consult James' Next Friend and to ascertain, give consideration to, and take account of, her views on reasonable adjustment, but that process did not occur at all (Part 3.5); f. the Act, as beneficial human rights legislation, anticipates that consultation will be meaningful. 68. The discrimination was contrary to Part 5 of the Disability Standards in that: a. the [Department] did not take reasonable steps to ensure that James was able to participate in the courses or programs provided by it, and use the facilities and services provided by it on the same basis as a student without a disability, and without experiencing discrimination (Part 5.2(1)). b. the [Department] refused, neglected or failed to engage with relevant professionals following consultation with James' associate (Part 5.2(2)(a)) and as a result was unwilling or unable to make informed decisions in relation to further adjustments as required pursuant to Part 5.2(2)(b) & (c). 69. The discrimination was contrary to Part 6 of the Disability Standards in that the [Department] did not adequately design or modify the curriculum to enable James to participate in the learning experiences of the program on the same basis as students without the disability (Part 6 (1)(2) & (3)). 70. The discrimination was contrary to Part 7 of the Disability Standards in that: a. the [Department] did not take reasonable steps to ensure [James] had access to the service (Part 7.2 (2)) in that it did not provide [him] with the specialised support he required (the reasonable adjustment); b. the [Department] did not actively seek specialist support in order to implement recommendations James' treating practitioners made (Part 7.2(3)); c. the [Department] refused neglected or failed to implement remedial assistance to address James' poor academic achievement (Part 7.2(2) & (3)); d. the [Department] did not comply with Part 7.3(b) & (d) of the standards, in that it did not provide or facilitate: i. the specialised services of staff trained in James' disabilities; or ii. attendance to James' program by expert medical professionals." 237 As s 3.1 makes clear, none of the sections in Part 3 of the Disability Standards constitute free-standing disability standards for the purposes of ss 31 and 32 of the DDA. What these provisions do is set out "how a reasonable adjustment is to be identified for the purposes of paragraphs 4.2(3)(c), 5.2(2)(c), 6.2(2)(c), 7.2(5)(c), or 7.2(6)(c)" of the Disability Standards. 238 The provisions of Part 3 are, therefore, only engaged if one or more of the obligations imposed on an education provider by ss 4.2, 5.2, 6.2 or 7.2 are attracted by the circumstances of a particular disabled student. 239 Paragraph 67 of the FCSOC appears to allege that the Disability Standards impose an obligation on the Department, with which it failed to comply, to make reasonable adjustments for James. In so far as may be gleaned from the particulars certain services such as speech therapy, language therapy, one-to-one assistance and a modified curriculum should have been, but were not, provided to James either at all or at an unspecified required standard or sufficiency such that the Department contravened provisions of Part 3 of the Disability Standards. Part 3 imposes no such obligation on the Department independently of the duties imposed by later Parts of the Standards. 240 No contravention of Part 3 of the Disability Standards of the kind alleged has been or could be made out. 241 Sections 5.2(1) and 6.2(1) respectively require education providers to take reasonable steps to ensure that a student with a disability can participate in learning experiences of the course or program provided by it and to ensure the student has access to the facilities and services provided on the same basis as students without disability. 242 Section 5.2(2) and 6.2(2) provide that, in order to meet the obligations in ss 5.2(1) and 6.2(1), the education provider must consult with the student, or the associate of the student, and make reasonable adjustments to ensure that the obligations are met. 243 Although ss 5.2(2) and 6.2(2) impose an obligation on the education provider to engage in the process of consultation, that consultation need not take any particular form or occur at a particular time: see Walker at 330-1 [284]. Following consultation it is for the education provider to determine whether any, and if so what, adjustments are necessary to ensure that the student can participate in the programs provided. Such adjustment must be reasonable in that it assists a student with a disability to participate in education and training on the same basis as other students while taking into account the student's learning needs and balancing the interests of all parties affected, including those of a students with a disability, the education provider, staff and other students: see s 3.4(2). 244 The evidence established that, during his attendance at Bulleen Heights, Wantirna Heights and Essex Heights the staff engaged James, and Mr and Mrs Kiefel, in consultation and implemented adjustments to assist James' educational development. James' curriculum was reviewed, with the input of Mr and Mrs Kiefel and James' professional advisors. The contributions and advice of all those who were acting on James' behalf were taken into account by the school staff members who were responsible for determining the content and mode of delivery of James' education program. Many of the recommendations were implemented. Ongoing monitoring occurred and, where necessary, modifications were made following further consultation: see [86]-[90], [95]-[97], [152]-[153], [155]-158]. 245 James contended that the Department had contravened Part 7 because it did not provide him "with the specialised support he required (the reasonable adjustments)"; "did not actively seek specialist support in order to implement recommendations James' treating practitioners made"; "refused, neglected or failed to implement remedial assistance to address [his] poor academic achievement" and by not providing or facilitating "the specialised services of staff trained in [his] disabilities" or the "attendance to [his] program by expert medical professionals." 246 In his written submissions James sought to elaborate on the contents of the obligations which, he contended, were imposed, by Part 7, on the Department. He submitted that the Part imposed an obligation on education providers "actively [to] seek specialist support from external individuals, agencies or organisations" in the fields of speech therapy, personal education support, specialist expertise and psychology. 247 Section 7.2 of the Disability Standards does not require an education provider to seek additional specialist expertise for the student's benefit, provide the student with remedial assistance, or to facilitate medical input in developing the student's program. 248 Nor does Part 7 impose an obligation on the Department to provide services such as speech therapy, specialist trained teachers or teachers' aides. 249 Section 7.2(1) imposes an obligation on the school to "take reasonable steps to ensure that the student is able to use support services used by the students of the institution in general on the same basis as a student without a disability …". 250 Section 7.2(2) requires that, if a specialised support service is necessary for a student to participate in the activities in which the student is enrolled, the Department must take reasonable steps to ensure that the student has access to the service. Section 7.2(3) provides that if the Department does not provide the specialist service identified, the Department must take reasonable steps to facilitate the provision of service to the student by another person. 251 Section 7.3 sets out the "[m]easures that the education provider may implement to ensure that the student is able to access support services … on the same basis as a student without a disability". 252 It was not disputed that the Department provided a range of support services to assist students in its schools who, like James, suffered from disabilities. James had access to these services. As the evidence disclosed he availed himself of many of them. What he has not done is identify any specialised support service which was available and relevant to his needs but which he was not able to use. 253 No contravention of Part 7 of the Disability Standards has been established. 254 In his submissions, James also claimed that the Department's failure to provide reasonable adjustments set out in paragraph 19 of his FCSOC was a contravention of the Disability Standards and therefore a convention of s 32 of the DDA. 255 For the reasons already explained the Disability Standards did not impose on the Department a general obligation to make reasonable adjustments of the kind identified in paragraph 19. This allegation lacks substance.

Kiefel v State of Victoria

At a glance

Court

Decision date

Before

Source

Judgment (67 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (21)

Cited By (12)