Decision on Appeal
24 It does not seem to us that the decisions referred to on behalf of the appellant satisfactorily resolve the issue. The workers compensation cases may be put to one side, having a quite different statutory content and a different history. Whilst entitled to respect, the decision of HREOC in X v McHugh and the HREOC decisions which apply it arose in an employment setting under a previous statute and assert the result without setting out any satisfactory comparative analysis such as is required by s 5 or its equivalent. The dicta of Lockhart J in HREOC v Mt Isa Mines Ltd was directed to a different issue in a different statutory setting. The same may be said of the dicta of Toohey J and Kirby J in IW v City of Perth. Without discarding such guidance as may be gained from these sources, we cannot avoid forming our own view of the proper construction and operation of the Act in the present factual context.
25 It must steadily be borne in mind that the expulsion of the complainant followed repetitive anti-social and violent conduct towards other students and staff which was plainly unacceptable in a primary school. It was disturbing to the function of education and threatened the safety of other students and staff. Those responsible for administration of the school owed a duty of care to the other students in the school, the teachers and the teacher's aides, with potential liability for any breach of that duty (Commonwealth v Introvigne (1981) 150 CLR 258). The disorder as such was ultimately not relied upon by the school in order to prevent enrolment (cf s 22(1)), notwithstanding the potential for anti-social conduct which it involved. If it had been, then it may be that there would have been discrimination, subject to the operation of s 22(4). We do not need to decide that question. The problem was that, once enrolled, the school was not able to cope with the conduct of the complainant which in fact ensued, despite considerable time and effort.
26 The consequence of the argument for the appellant and the HREOC decisions to the same effect (if correct) is that, once enrolled, any treatment of the student by the school authorities as a result of conduct caused by his disorder which restricted or disadvantaged him compared with the ordinary student would be discrimination in breach of the Act, no matter how necessary to preserve the discipline of the school and safety of staff and students. On this argument, any exclusion from ordinary classes, or special physical or other restraints imposed as the price of attendance at ordinary classes, would be a breach of s 22(2)(a) or (c), as the antisocial behaviour caused by the brain damage would be the cause of the special and detrimental treatment. The findings of discrimination which were made by HREOC in relation to acts or omissions other than expulsion go further and impose positive duties on the school to manage the conduct of the student, presumably regardless of cost or impact upon other school activities, without explaining why such special measures would not involve a breach of s 22(2)(a) or (c). The critical points are that there is no criterion of reasonableness in s 22(2) and no equivalent of s 22(4) in relation to a student once enrolled.
27 Counsel for the appellant accepted that if the school could not manage the student, once enrolled, because of the violent and antisocial behaviour of the student, the only escape would be an application for exemption pursuant to s 55. Such a counter-intuitive, indeed extraordinary, result would require a very clear statutory basis. We do not regard s 55 as providing an escape from the otherwise draconian consequences of the construction of s 22 urged upon us on behalf of the appellant. The problems inherent in such a discretionary application for exemption are illustrated by this case. Consideration of the present question took many days of hearing and took over a year to decide, to which must be added the time taken by the judicial review which is still in progress. The time involved would be exacerbated in relation to an application under s 55 by the merits review provided for by s 56. Apart from the time, expense and staff disruption involved, the school would ultimately be subject to a discretionary judgment by a body which does not have the responsibility for managing the student. Even if s 55 can be read as authorising an exemption in the case of an individual student, it is ill-designed to deal with such an issue in a case like the present. Most importantly, what is the position of the school and those at the school whilst the availability of an exemption is being decided? The staff and other students will live with the threat of injury or abuse, may suffer actual injury or abuse, and classes and other educational endeavours will be disrupted. In addition, those affected may be without remedy, as the school authorities are hamstrung by the law in adopting normal measures of control. It is also obvious that if s 22 works in the fashion contended for, there would be great pressure upon a school to refuse admission and rely upon s 22(4), rather than take any risk as to handling a student after admission. This is counter-productive so far as the objects in s 3 of the Act are concerned.
28 In our opinion, given the findings by HREOC as to primary fact, Emmett J was correct in holding that HREOC had misdirected itself as to the proper construction of s 4 of the Act in regarding the conduct of the complainant which occasioned the actions of those in charge of the school as part of the disability of the complainant. In our opinion, that conduct was a consequence of the disability rather than any part of the disability within the meaning of s 4 of the Act. This is made quite explicit in subs (g), which most appropriately describes the disability in question here and which distinguishes between the disability and the conduct which it causes. The same may be said of subs (f). The other subsections do not involve conduct.
29 In the particular circumstances of this case, the proper comparison for the purposes of s 5 of the Act, in order to test the relevance of the disability, as such, is between the treatment of the complainant with the particular brain damage in question and a person without that brain damage but in like circumstances. This means that like conduct is to be assumed in both cases. The failure to make this comparison led to the capricious result arrived at by HREOC. Each alleged act of discrimination is to be judged in the light of the conduct of the complainant which had taken place up to that time. The question to be answered at each point (including expulsion) is whether the consequence would have been the same (or worse) if the conduct had been that of a pupil not affected by brain damage. As pointed out by Emmett J, it is at least possible that inquiry may show that the complainant was treated more harshly than another exhibiting similar conduct at school, but without the disability, would have been. This essential comparison was not carried out by HREOC, which accordingly fell into error of law in the application of s 5 of the Act.
30 It follows that we do not agree that the statement summing up earlier HREOC decisions, and applied in the HREOC decision under review, that to discriminate against a person suffering a mental disorder because of the behaviour of that person which directly results from that disorder is to discriminate against that person because of the mental disorder, is applicable in circumstances such as the present. In the first place, it assumes, rather than demonstrates, the existence of discrimination and does not reflect the language of ss 4 or 5 of the Act. In the second place, it is, in reality, an application of the "but for" test, the difficulties of which in this field (albeit in relation to another statute) are explained by Lockhart J in HREOC v Mt Isa Mines Ltd at 326.
31 We should say something about the respective judgments of Toohey J and Kirby J in IW v City of Perth as we were pressed with them by counsel for the appellant. The structure of the Equal Opportunity Act 1984 (WA) in general, and s 66A in particular, is different from that of the Act in issue here. Section 66A(1) includes an extended definition of discrimination on the ground of impairment which includes discrimination on the ground of a characteristic that is generally imputed to persons having the same impairment as the aggrieved person. This appears to have been influential, and perhaps decisive, in the reasoning of each of Toohey J (at 34) and Kirby J (at 68-69). In our opinion, this reasoning cannot be transposed to the language of ss 4 and 5 of the Act.
32 If the statement of a more general principle was intended, to the effect that a comparison between the actual and the hypothetical for the purpose of assessing the existence of discrimination can never involve the hypothetical including behaviour of the kind exhibited by the actual, then we respectfully disagree. The problem is illustrated by taking the example given by Toohey J (at 33):
"On the construction for which the respondents contended, if dangerousness was a characteristic imputed to paranoid or schizoid personalities, there could be no discrimination against persons with those personalities."
The principal object of the Act is to eliminate discrimination on the ground ofdisability (of the defined kind) in the nominated areas (s 3). The object is to remove prejudice or bias against persons with a disability. The relevant prohibition here is against discrimination on the ground ofthe person's disability (s 22). Section 5 of the Act is related to the assessment of that issue. It is difficult to illustrate the comparison called for by s 5 by way of a wholly hypothetical example, as it involves a comparison of treatment by the particular alleged discriminator, and requires findings of fact as to the particular disability, as to how the alleged discriminator treats or proposes to treat the aggrieved person, and as to how that alleged discriminator treats or would treat a person without the disability. The task is to ascertain whether the treatment or proposed treatment is based on the ground of the particular disability or on another (and non-discriminatory) ground. There must always be that contrast. To be of any value, the hypothetical illustration must make assumptions as to all factual integers.
33 The example given by Toohey J in relation to paranoid or schizoid personalities is at a high level of generality. The characteristics of the particular complainant are not known - had there been any violence, and if so when, how often and under what circumstances, what medical treatment was being undertaken, what compliance had there been with the medical treatment, and so on. The particular conduct by the discriminator is not known - was it related to employment, education, access to facilities, sport or something else. How the particular alleged discriminator had treated or would treat others in similar circumstances is not known.
34 It is not correct to assume that taking a comparator with a similar history of behaviour will never reveal discrimination. In fact, taking such a comparator is calculated to reveal whether the conduct of the alleged discriminator is as a result of prejudice because of the particular disability. Assume that a person with a schizoid personality is expelled from a rugby club because he was sent off twice in a season for violent play. It would be unhelpful to compare that actual situation with a hypothetical example of a player who had never been sent off for violent play during his whole career. Of course such a person would not be expelled. If that comparator is taken, a false positive reading of discrimination would result. The true comparison is to ask what had happened (or would happen) to players with a similar record. If history had shown that they had been (or would be likely to be) expelled, that would deny discrimination. If not, discrimination would be revealed, absent a convincing explanation of the differences in treatment on behalf of the club. This is consistent with the reasoning of Wilcox J in Tate v Raffin [2000] FCA 1582 at [66]-[68]. The discussion of discrimination by Clarke JA in Waterhouse v Bell (1991) 25 NSWLR 99, particularly at 106-108, is illuminating as to the need to focus on the real ground for the conduct alleged to be discrimination. The "Typhoid Mary" example given by Mahoney JA in Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 at 21 (discussed by Clarke JA in Waterhouse at 115F) is also instructive in that respect.
35 We do not wish to go beyond the precise circumstances of this case and generalise further or deal with the many hypothetical situations which might be imagined, some of which were mentioned during argument. As the cases to which reference has been made reveal, the issue of what constitutes the proper comparison called for by discrimination legislation has been much discussed in judgments and commentaries in Australia and overseas. Analysis is not made easier because of the differences in statutes, and it is difficult not to conclude that some of the reasoning has been affected by a view as to outcome. The safest course is to be guided by the ordinary meaning of the words of ss 4 and 5 of the Act as they apply to the facts of this case. If we had been persuaded that Emmett J was in error in relation to what constituted the disability in this case, the need to examine the question of the comparison required by s 5, and the authorities which deal with similar questions, in depth, would have arisen.
36 In conclusion, we should say something of the case of X v Commonwealth (1999) 200 CLR 177 which was briefly referred to in argument. The issue in that case was different from that here because the discrimination related to employment and was conceded by the Commonwealth. Although this means that the decision has no value as a precedent on that point, we would not regard a conclusion of discrimination in that case as necessarily inconsistent with our decision in this case. The issue of HIV infection arose at the point of enrolment in the Army, and a blanket policy was in question in circumstances where it was only potential rather than actual consequences which were relevant, viz, the future risk of infecting others if certain conditions occurred. The manner in which the Commonwealth had dealt with other persons with infectious disease may have made it clear that the policy in question was tantamount to acting on the basis of the condition alone, and so discriminatory, subject to the arguments as to lawfulness which were the subject of the litigation. The basis for the concession is not known. As we said earlier, it may be that the same result would have ensued here at the point of enrolment because of s 22(1), subject to s 22(4). When adverse circumstances actually occur after enrolment, the situation is quite different.
37 The appeal is dismissed. The appellant is to pay the costs of the first respondent.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.