Malaxetxebarria v. State of Queensland [2006] QSC 286 (4 October 2006)

Malaxetxebarria v. State of Queensland [2006] QSC 286 (4 October 2006) - QSC 2006 case summary — Zoe

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The Honourable Rod Welford MP, Attorney-General and Minister for Justice, forwarded your email regarding the education of your daughter, Gracia, to the Minister for Education and Minister for the Arts, Anna Bligh MP. The Minister has asked me to respond to you on her behalf. I sincerely apologise for the delay in replying to you.

The Department's release of the Framework for Gifted Education in March 2004 was a result of a review of the previous Policy on the Education of Gifted Students in Queensland Schools. The review entitled, Expanding Possible Futures: A Review of Education Queensland's Policy on the Education of Gifted Students in Queensland Schools, is available on Education Queensland's website at www.education.qld.edu.au.

Queensland schools have had provisions to ensure the needs of students who are gifted were met well before the release of the Framework for Gifted Education. The Framework presents guidelines for acceleration, however, the practice of accelerating a gifted student, after comprehensive assessment of the student's readiness, has occurred in Queensland schools for some time.

To this end, I reaffirm the offer made to you by Mr Mark Campling, Acting Executive Director (Schools), West Moreton District that Gracia attend part-time at Rosewood State High School for six periods per week to participate in the school's extension program. This would act as a trial that could lead to further opportunities to extend her participation in other secondary programs. Gracia's primary school program would also be modified to provide for her extension needs. It was considered that this proposal offered greater chance of success than the immediate full time enrolment in Year 8 that you requested. This proposal addresses the main concern relating to Gracia's social-emotional maturity as a 9 year old in a secondary setting and her relationships with her peers.

I invite you to contact Mr Jeff White, Acting Manager Education Services, West Moreton and Ipswich Districts on telephone (07) 3280 1987, should you require further assistance with this matter.

Thank you for bringing your concerns to the Minister's attention.

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Part 3 Prohibited types of discrimination

9 Discrimination of certain types prohibited

The Act prohibits the following types of discrimination -

(a) direct discrimination;

(b) indirect discrimination.

10 Meaning of direct discrimination

(1) Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.

Example

R refuses to rent a flat to C because -

• C is English and R doesn't like English people

• C's friend, B, is English and R doesn't like English people

• R believes that English people are unreliable tenants.

In each case, R discriminates against C, whether or not R's belief about C's or B's nationality, or the characteristics of people of that nationality, is correct.

(2) It is not necessary that the person who discriminates considers the treatment is less favourable.

(3) The person's motive for discriminating is irrelevant.

Example

R refuses to employ C, who is Chinese, not because R dislikes Chinese people, but because R knows that C would be treated badly by other staff, some of whom are prejudiced against Asian people. R's conduct amounts to discrimination against C.

(4) If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.

(5) In determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant.

11 Meaning of indirect discrimination

(1) Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term -

(a) with which a person with an attribute does not or is not able to comply; and

(b) with which a higher proportion of people without the attribute comply or are able to comply; and

(c) that is not reasonable.

(2) Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example -

(a) the consequences of failure to comply with the term; and

(b) the cost of alternative terms; and

(c) the financial circumstances of the person who imposes, or proposes to impose, the term.

(3) It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.

(4) In this section -

term includes condition, requirement or practice, whether or not written.

Example 1 -

An employer decides to employ people who are over 190cm tall, although height is not pertinent to effective performance of the work. This disadvantages women and people of Asian origin, as there are more men of non-Asian origin who can comply. The discrimination is unlawful because the height requirement is unreasonable, there being no genuine occupational reason to justify it.

Example 2 -

An employer requires employees to wear a uniform, including a cap, for appearance reasons, not for hygiene or safety reasons. The requirement is not directly discriminatory, but it has a discriminatory effect against people who are required by religious or cultural beliefs to wear particular headdress.

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56. To be successful in proving direct discrimination in these circumstances, the complainant must demonstrate that she has been treated less favourably because of an attribute (in this case, the complainant's age) than another person (real or hypothetical) without that attribute in the same or similar circumstances.

57. Mr Horneman-Wren, on behalf of the respondents, submits that the appropriate consideration in this case would be the circumstances of a child seeking enrolment in a State high school having achieved all the Year 7 Key Learning Outcomes. It might be arguable that the complainant (as a nine year old) was treated differently to another 11 or 12 year old child who had achieved all of the Year 7 Key Learning Outcomes and was entitled to progress to Year 8 at a State high school.

58. But the factual foundation upon which this exists, namely that the complainant had completed the Year 7 Key Learning Outcomes for a State school in Queensland, was not proved. The complainant's mother indicated that the complainant had completed these outcomes in the course of work that she had achieved at home, particularly by completing work that had been set for her older sister at another school.

59. The evidence of Mr Griffin clearly demonstrates that this outcome had not been achieved during the course of the complainant's schooling at the Mutdapilly State School. He specifically disagreed with the assertion that the complainant had achieved these goals. In the circumstances, I am not prepared to find that the complainant had achieved all Key Learning Outcomes for a Year 7 student within the Queensland State school system.

60. In any case, given my findings on the major issues outlined above, I do not consider that the complainant was treated less favourably in these circumstances. The respondent gave consideration to the evidence available to it, made appropriate investigations and recommendations. It offered the complainant a reasonable program of acceleration that was consistent with the complainant's best interest and current academic research. The complainant and her mother chose not to accept the PKP program as it was not considered by them to be the best option.

61. In summary, I dismiss the complaint of direct discrimination.

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62. In the complainant's outline of argument filed prior to the hearing, the complainant also asserts indirect discrimination. Indirect discrimination requires the imposition of a term which (a) a person with the attribute does not, or is not able to comply with, and (b) with which a higher proportion of people without the attribute comply or are able to comply and (c) which is not reasonable.

63. The essence of the case based upon indirect discrimination appears to be the imposition of a term which required candidates for Year 8 to have attained a requisite level of social and emotional maturity which might be determined, in part, by the age of the child.

64. I agree with the submissions for the respondent that the complainant was not, necessarily, unable to comply with the term at the relevant time. To the contrary, the case for the complainant was that the Department was simply wrong in their assessment of her social and emotional maturity and that the complainant did possess the requisite social and emotional maturity. In other words, the complainant's case is that she could comply with the term. This in itself disposes of any case of indirect discrimination.

65. I also accept the respondent's submission that, the imposition of any such term was entirely reasonable in the circumstances. The respondent must prove on the balance of probabilities that the term is reasonable. Determining whether a term is reasonable will involve consideration of circumstances from the point of view of the respondent and the complainant. In striking the balance between the various interests to be considered when imposing a requirement or condition in an activity or transaction, the interests of all persons concerned must be considered.

66. I have had regard to all the relevant circumstances of this complaint, including the factors specified in s. 11(2)(a)-(c) of the Act. The possible complications for the school, the student and other students in accelerating a child beyond their level of social and emotional maturity are relevant aspects for consideration in the overall circumstances.

67. In summary, the complaint of indirect discrimination is dismissed.

At a glance

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Before

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Judgment (67 paragraphs)