An allegation of a failure to comply with the positive obligation imposed on educational authorities by s 40(2) of the EO Act 2010 to make reasonable adjustments that were necessary for HL to derive any substantial benefit from an educational program;[5]

An allegation of conduct in breach of ss 8(2), 23, 27(2) and 21 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter).

1. The applicant seeks the following relief:
   • a declaration that each of the State of Victoria and the school principal discriminated against HL in the relevant period;
   • a declaration that each of the State of Victoria and the school principal has breached the Charter; and
   • damages.

1. Dealing first with the allegations levelled against the school principal, the applicant alleges she is liable for indirect discrimination against HL in two ways:
   • by authorising or assisting "the discrimination" by five named teachers and aides at Marnebek (Lauren Wood, Christine Walker, Carlee Brown, Jasmine Moir and Pam Boak) contrary to s 105 of the 2010 Act;[6] and
   • by being vicariously liable for the acts of each of the five named teachers and aides as the employer of those individuals.[7]
2. As against the State of Victoria, the allegation under the 1995 Act is put on the basis that it, as an educational authority, discriminated against HL within the meaning of sections 9 and 37 of the 1995 Act because:
   • it required HL to comply with a requirement or condition that he meaningfully participate in his education without the following "reasonable adjustments":

- a full-time dedicated aide to assist with his fine motor skills, supervise his safety, monitor and address his challenging behaviours, undertake speech and communication recommendations as directed and assist his learning;[8]

- a formal communication method, which is said to have required a speech pathologist to assist him in developing his speech, "in order that he could communicate his wants and needs to third parties" and "in the event of the withholding of support for his speech", an alternative communication method;[9]

- a positive behaviour plan, being the use of a personalised token board, used every 3-5 minutes and more frequently if required.[10]

• HL could not comply with the condition due to his disabilities;
• a higher proportion of people without HL's disabilities could comply with the condition;
• the condition was not reasonable;
• it denied or limited HL's access to specific benefits provided by it, namely the opportunity to be educated to his potential, the opportunity to develop an effective communication method in order to learn and socialise with his peers, a safe and supportive environment, meaningful participation in the classroom and meaningful access to the curriculum (the alleged benefits); and
• it subjected HL to detriment, namely injuries by other students due to the absence of a dedicated aide, deterioration in his academic skills, the development of significant anxiety symptoms, and the subjecting of HL to specified forms of "physical force/restraint", "isolation and seclusion" (the alleged detriments).[11]

1. The allegation of indirect discrimination under the 2010 Act is put on the basis that the State of Victoria, as an educational authority, discriminated against HL within the meaning of ss 9 and 38 of the3 2010 Act because:
   • it required HL to comply with the condition;
   • the condition had the effect of disadvantaging persons with HL's disabilities;
   • the condition was not reasonable;
   • it denied or limited HL's access to alleged benefits; and
   • it subjected HL to the alleged detriments.[12]
2. The alleged detriments were:

Deterioration of academic and communication skills;

Allegation of failure to make reasonable adjustments.

1. The applicant alleges that the State of Victoria, as an educational provider, contravened s 40(2) of the 2010 Act by failing to make reasonable adjustments in order to permit HL to derive substantial benefit from his education at Marnebek School. The reasonable adjustments that are said to be required are the provision of a full-time dedicated aide, a formal communication method and frequent use of a personalised token board.[13]

1. The applicant alleges[14] that the alleged "physical force/restraint"[15] and "isolation and seclusion"[16] of HL constitute a "breach" of the Charter. The Tribunal assumes that this allegation is that, by engaging in the alleged conduct, the State of Victoria and the school principal have contravened s 38(1) of the Charter.

1. The State of Victoria and the school principal deny that they have discriminated against HL, deny they failed to comply with s 40(2) of the 2010 Act or breached the Charter.

Indirect discrimination under the 1995 Act - the relevant legislation

1. The claim (which involves both the Equal Opportunity Act 1995 ("the 1995 Act") and the Equal Opportunity Act 2010 (the 2010 Act") is one of indirect discrimination.
2. The term "discrimination" is defined in section 7(1) of the 1995 Act to mean direct or indirect discrimination on the basis of an attribute.[17] HL's attribute is disability and that term is defined in s 6.
3. Section 9 of the 1995 Act relevantly defines indirect discrimination in the following fashion:

(1) Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice -

(a) that someone with an attribute does not or cannot comply with; and

(b) that a higher proportion of people without that attribute, or with a different attribute, do or can comply with; and

(2) Whether a requirement, condition or practice is reasonable depends on all the relevant circumstances of the case, including -

(a) the consequences of failing to comply with the requirement, condition or practice;

(b) the cost of alternative requirements, conditions or practices;

(c) the financial circumstances of the person imposing, or proposing to impose, the requirement, condition or practice.

1. Section 37 of the 1995 Act prohibits specific forms of discrimination by educational authorities. An "educational authority" was defined on s 4(1) of the 1995 Act to mean a person or body administering an educational institution.[18] The State of Victoria is a educational authority.[19]
2. Section 37(2) relevantly prohibited an educational authority from discriminating against a student:
   • by denying or limiting access to any benefit provided by the authority;[20]
   • by subjecting the student to any other detriment.[21]

Indirect Discrimination under the 2010 Act - the relevant legislation.

1. Section 39 of the 2010 Act is identical with section 38 of the 1995 Act. However, section 9 of the amending 2010 Act made changes to the definition of indirect discrimination and provides as follows:

(1) Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice -

(a) that has, or is likely to have, the effect of disadvantaging persons with an attribute; and

(2) The person who imposes, or proposes to impose, the requirement, condition or practice has the burden of proving that the requirement, condition or practice is reasonable.

(3) Whether a requirement, condition or practice is reasonable depends on all the relevant circumstances of the case, including the following -

(a) the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the requirement, condition or practice;

(b) whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the requirement, condition or practice;

(c) the cost of any alternative requirement, condition or practice;

(d) the financial circumstances of the person imposing, or proposing to impose, the requirement, condition or practice;

(e) whether reasonable adjustments or reasonable accommodation could be made to the requirement, condition or practice to reduce the disadvantage caused, including the availability of an alternative requirement, condition or practice that would achieve the result sought by the person imposing, or proposing to impose, the requirement, condition or practice but would result in less disadvantage.

The following examples are provided in the section:

1. A store requires customers to produce photographic identification in the form of a driver's licence before collecting an order. This may disadvantage a person with a visual impairment who is not eligible to hold a driver's licence. The store's requirement may not be reasonable if the person with a visual impairment can provide an alternative form of photographic identification.
2. An advertisement for a job as a cleaner requires an applicant to speak and read English fluently. This may disadvantage a person on the basis of his or her race. The requirement may not be reasonable if speaking and reading English fluently is not necessary to perform the job.

1. The 2010 Act places an express obligation on educational providers to make reasonable adjustments for persons with a disability. Relevantly section 40 of the 2010 Act (which came into force on 1 August 2011) now provides:

(1) This section applies if a person with a disability requires adjustments in order to participate in or continue to participate in or derive or continue to derive any substantial benefit from an educational program of an educational authority.

(2) The educational authority must make reasonable adjustments unless the person could not participate in or continue to participate in or derive or continue to derive any substantial benefit from the educational program even after the adjustments are made.

An educational authority may make reasonable adjustments for a person with a disability by -

• providing a teacher's aide or particular software packages for computers;
• moving a particular course or event from an inaccessible venue to an accessible one.

(3) In determining whether an adjustment is reasonable, all relevant facts and circumstances must be considered, including -

(a) the person's circumstances, including the nature of his or her disability; and

(b) the nature of the adjustment required to accommodate the person's disability; and

(c) the effect on the person of making the adjustment, including the effect on the person's ability to -

(d) the effect on the educational authority, staff, other students or any other person of making the adjustment, including -

(ii) the number of people who would benefit from or be disadvantaged by making the adjustment; and

(e) the consequences for the educational authority of making the adjustment; and

(f) the consequences for the person of not making the adjustment; and

(g) any relevant action plan made under Part 3 of the Disability Discrimination Act 1992 of the Commonwealth; and

(h) if the educational authority is a public sector body within the meaning of section 38 of the Disability Act 2006, any relevant Disability Action Plan made under that section.

An educational authority is not required to make an adjustment under subsection (2) to the extent that the educational authority has complied with, or has been exempted from compliance with, a relevant disability standard made under the Disability Discrimination Act 1992 of the Commonwealth in relation to the subject matter of that adjustment.

1. The other provisions arising under the 2010 Act are s 105 and 109 and are brought against Ms Dauncey. Section 105 provides:

A person must not request, instruct, induce, encourage, authorise or assist another person to contravene a provision of Part 4 or 6 of this Part.

1. Section 109 deals with vicarious liability. Where a person, in the course of employment, contravenes a provision of Part 4 of the 2010 Act, both the person and the employer are taken to have contravened the section.

1. Counsel for the respondents made the following observations about indirect discrimination under 1995 Act.
   • As with direct discrimination, an appropriate comparator must be identified in order to analyse the requirements in s 9(1)(a); and (b)
   • In assessing the "not reasonable" requirement in s 9(1)(c):

(a) the complainant bears the onus of proving that the condition imposed was not reasonable:[22]

(b) the negative characterisation "not reasonable" is an essential aspect of the applicable test - the question is not whether the condition is reasonable;[23]

(c) the test of reasonableness is less demanding than one of necessity, but more demanding than one of convenience - the criterion is an objective one, requiring the nature and extent of the discriminatory effect to be weighed against the reasons advanced in favour of the condition;[24]

(d) all the circumstances of the case must be considered, including the non-exhaustive circumstances set out in s 9(2), the position of the respondent as well as the complainant, the financial or economic circumstances of the respondent, including the cost of imposing the condition and the cost of not imposing it, the presence of a logical and understandable basis for the condition and, where the respondent is a government of statutory body, policy objectives;[25]

(e) whether a condition is not reasonable is a question of fact for the Tribunal to determine;[26] and

(f) if the Tribunal misdirects itself as to its task in relation to reasonableness, it may fall into an error of law - it will do so if it fails to take into account a relevant consideration, such as the circumstances of the respondent.[27]

1. A further factor relevant to the question of whether a requirement or condition has been shown to be not reasonable is the requirement that courts and tribunals must act "with an appropriate degree of diffidence", particularly in circumstances where there may be a division of opinion about the actions of the alleged discriminator.[28]
2. In State of Victoria v Turner,[29] the Supreme Court made the following comments in the context of an allegation of indirect discrimination in relation to education:
   • Where the State is the respondent to such a claim, the circumstances the Tribunal must consider include the fact that the State does not provide benefits to a single student (the complainant) in a single school but operates many schools with many students and that the education budget each year is not unlimited.
   • Where the evidence before the Tribunal establishes that a decision by the Tribunal in favour of the complainant will have flow-on effects for the respondent in relation to other persons in a similar position to the complainant, the flow-on effects are a relevant consideration.

1. Counsel for the respondents made the following observations about indirect discrimination under the 2010 Act:
   • Unlike the 1995 Act, s 9 of the 2010 Act does not contain a requirement that the person alleging indirect discrimination demonstrate that he or she cannot comply with the condition, requirement or practice; this has been replaced with a requirement that the imposition of the requirement, condition or practice causes, or likely to cause, disadvantage;[30]
   • There must be a causal link between the identified requirement, condition or practice, the attribute in question, and the alleged disadvantage;[31]
   • Unlike s 9 of the 1995 Act, s 9 of the 2010 Act does not contain a "comparator" requirement that the person alleging indirect discrimination demonstrate that a higher proportion of people without the relevant attribute can comply with the requirement, condition or practice;
   • The onus in relation to reasonableness is different under the two Acts: whereas s 9 of the 1995 Act placed the onus on the person alleging indirect discrimination to demonstrate that the condition, requirement or practice was not reasonable, s 9 of the 2010 Act places the onus on the person who imposed the requirement, condition or practice to show that it was reasonable;
   • The factors to be considered in determining whether a requirement, condition or practice is reasonable have been extended under the 2010 Act, although neither the factors listed in s 9 of the 1995 Act, nor the factors listed in s 9 of the 2010 Act should be regarded as exhaustive.[32]
2. The 1995 Act applies to conduct prior to 1 August 2011 and the 2010 Act to all subsequent conduct.
3. Put more precisely, the 1995 Act applies to that part of the conduct of the State of Victoria and the school principal that is alleged to have occurred prior to the commencement of the 2010 Act on 1 August 2011. As the applicant made no complaint of discrimination in the 2010 school year when HL was in prep for the entire year, the allegation of indirect discrimination relates to the period from 1 January 2011 (but more likely from some date in February when the school year recommenced) to 31 July 2011 - a 5 month period.
4. The 2010 Act applies to that part of the conduct of the State of Victoria and the school principal that is alleged to have occurred on or after 1 August 2011.
5. The fact that the case covers the periods of the two Acts tends to complicate matters. The powers of this Tribunal in relation to the 2010 Act are found in s 122 which provides that "a person may make an application to the Tribunal in respect of an alleged contravention of Part 4, 6 or 7, whether or not the person has brought a dispute to the Commission for dispute resolution." The provision of Part 4 that is relied upon here is s 38 which prohibits discrimination by educational authorities.
6. Section 194(2) of the 2010 Act is relevant to the 1995 Act allegations because it gives the Tribunal power to determine whether a person has contravened a provision of Part 3 of the 1995 Act (Part 3 includes s 37 which prohibits discrimination by educational authorities) if the allegation, if proved, would also have been in contravention of Part 4 of the 2010 Act.
7. The upshot of that is that it is not enough to prove a contravention of sections 9 and 37 of the 1995 Act; the Tribunal must also find that the conduct giving rise to those contraventions would be in breach of Part 4 of the 2010 Act.

1. Counsel for the respondent took the opportunity to record her concern about the way this case was run. In her written submissions she had this to say:

... the respondents note that the case pleaded by the applicant does not sit conformably with the statutory regime created by the EO Act 1995 and the EO Act 2010. It lists a litany of wide ranging grievances concerning HL's experiences at Marnebek school from which it is difficult to discern a bona fide discrimination complaint. It is not dissimilar to a range of unsuccessful discrimination cases brought against educational authorities in the Federal Court pursuant to the Disability Discrimination Act 1992 (Cth) which have caused the Federal Court to make strong statements emphasising that litigants ought not to be led to believe that redress is available in a discrimination setting for what they perceive to be deficiencies in the manner in which educational services have been provided by an education provider.[33]

1. In commenting on the applicant's closing submissions, the respondent's counsel set out some of the difficulties that have bedevilled this case and that have made it difficult for the respondents to understand the case put against them and to respond to it properly
2. Counsel submitted:

...the final point that I want to make about the applicant's closing submissions is that large tracts of the submissions deal with topics that are still not relevant to the pleaded case and I have adverted to this already. And whilst it may be true to say, as the Commission did in its submissions yesterday that the Tribunal is not a court of pleadings, and one can understand how it is desirable for the Tribunal in a discrimination case in circumstances where a condition is formulated in a way that turns out not quite to be the condition that was imposed but the Tribunal can see that a variant of that condition imposed was, in fact, imposed.

One can see, particularly in circumstances where a person is unrepresented, that it is desirable for the Tribunal to be able to deal with the variant of that condition that is not pleaded and go on to make findings about that. That is one thing. But that does not mean that a litigant, represented or otherwise, can file a lengthy pleading in this proceeding which is then engaged with by the respondents in their defence, thus defining the issues in dispute between the parties and mostly irrelevant material. Included in the exhibits (along with other irrelevant material) was an audio recording made with a covert recording device that the applicant had placed in her son's school bag recording conversation between a teacher's aide and a student.

1. It is correct that little of this material was relevant to the points of claim and frankly, most of it was of no utility at all. The applicant's several statements ran to 895 pages encompassing some 734 paragraphs and 69 exhibits. Indeed, even at the conclusion of the applicant's case, her advocate sought (unsuccessfully) to amend the points of claim to include an allegation of direct discrimination. To have allowed this would certainly have been a breach of the fair hearing rule. Likewise, the applicant's filing of further evidentiary material by way of email on 7 October 2014 without leave (and not unnaturally opposed by the respondents) is not accepted.
2. Few of the applicant's witnesses gave evidence that was relevant to the eventual points of claim although they gave evidence about day-to day matters at the school, about their own experiences as well as their individual dissatisfaction with Marnebek which they expressed for a variety of reasons.
3. The applicant is a dedicated and emphatic advocate for her children. She is particularly passionate about her concern for HL and for his ongoing education. It is clear from her evidence and from her several statements that she and her husband and various other parents have a range of grievances about Marnebek. Indeed her advocate opened the case with references to "Marnebek's culture of punishment and violence" and its "law and order approach to children with complex disabilities". She is much aggrieved about the treatment she says was meted out to HL.
4. The Tribunal acknowledges that it is not bound by a complainant's formulation of a requirement, condition or practice and that it is not court of pleadings. But there was much evidence about the alleged use of wrist straps, time-out rooms, seclusion, restraint, walls papered over and the like; I do not intend to rehearse all the evidence that was given. However, this case is not about whether the school properly investigated the matters raised by the applicant, it is not about whether the papering over of windows was appropriate, it is not about the locking of gates and door, it is not about whether a wrist strap was used, it is not about whether other professionals external to the school should have been brought in or been involved in HL's education, it is not about whether certain staff members were appropriately qualified, nor is it about the adequacy or appropriateness of the behaviour support plans that were in place for him or compliance with the many guidelines and policy directives. The allegation is that there was a requirement or condition that HL meaningfully participate in his education without a full-time dedicated aide, without a formal communication method and without a positive behaviour management plan (see para 97 for precise description).

1. As I indicated earlier, the applicant made a number of statements and gave lengthy oral evidence. Evidence was also received from following:
   • Allicia Holdsworth, an aide in HL's classroom in 2010. She also worked privately for RW and her husband in 2011 as a carer and continued to work at Marnebek as a teacher;
   • Charlize Pirie, a parent at the school and a member of the school council;
   • Marae Atkin, (by phone) a psychologist who worked privately with HL from 2010 on and who visited HL at Marnebek;
   • GW, HL's father;
   • Catherine Basterfield, a consultant speech pathologist;
   • Chris Scandolera, a parent of children with autism spectrum disorder who were former students at Marnebek;
   • HL's grandmother.

1. Ms Dauncey, the principal and second respondent gave evidence and the following witnesses appeared for the respondents:
   • Lauren Wood, a teacher at Marnebek during 2011;
   • Pam Boak, an educational support person;
   • Katherine Weston, assistant principal at first respondent;
   • Samantha Baker, a classroom teacher at Marnebek;
   • Christine Walker, a classroom teacher at Marnebek;
   • Sarah Gracie, a speech pathologist;
   • Mark Tainsh, Director Inclusion Access and Participation in the first respondent;
   • Joanne Flight, a speech pathologist.

1. The Tribunal granted leave to intervene to the Victorian Equal Opportunity and Human Rights Commission (the Commission). Its role is to act as an independent party, exercising its functions under section 155 of the Act which include the promotion and advancement of the Act. The Commission made written and oral submissions.

1. The allegations against Ms Dauncey are set out in paragraph 9 and are allegations of contraventions of sections 105 and 109 of the 2010 Act occurring between February 2011 and May 2012. The respondents' counsel submitted that each of these allegations is fundamentally flawed. Her submission was as follows:

Section 105 of the 2010 Act relevantly prohibits "a person" from authorising or assisting another "person" to contravene a provision of Part 4 of the 2010 Act. The only provision of Part 4 of the 2010 Act that the applicant relies on is s 38. Section 38 only applies to educational authorities. None of the five named teachers and aides satisfy the definition of an "educational authority". They are therefore not capable of contravening s 38, and the school principal can therefore not authorise or assist any contravention of s 38 by them.

Whilst section 38 does refer to an 'educational authority' (which is defined as 'the person or body administering an education institution' - in this case the First Respondent), the named teachers are employees or agents of the First Respondent. Section 109 of the 2010 Act provides that if an employee or agent contravenes a provision of Part 4, both employee/agent and their employer/principal must be taken to have contravened the provision. So if [Ms Dauncey] is found to have authorised or assisted the named teachers in contravention of Part 4, [Ms Dauncey] will be deemed to have authorised or assisted the contravention by an educational authority.

1. In my view, there is no mandate to import from s 109 the reference to employees and agents as a means of interpreting what are the plain words of section 105. I am not persuaded that Ms Dauncey can be found to have contravened s 105 by authorising or assisting the five named teachers, each acting as employees or aides of an educational authority. Certainly, the applicant has not pleaded the contravention of s 105 in that way. That allegation does not succeed.
2. Section 109 deals with the vicarious liability of employers and principals. The respondents' counsel made the first point that the school principal is not the employer of the teachers and aides at Marnebek. She then submitted:

Teachers within the Victoria Government school system are not employed by school principals, but by the Secretary to the Department of Education and Early Childhood on behalf of the Crown.[34] It is the Secretary on behalf of the Crown, who has all the rights, powers, authorities and duties of an employer in respect of employees in the teaching service.[35]

1. The applicant's advocate did not make any specific submissions about this point although in her opening she had this to say:

In terms of sections 105, 106, 109, these are sections on authorising and assisting and vicarious liability. Sections 105 and 106 set out that a person must not request, instruct, induce, encourage, authorise or assist another person to contravene a provision of Part 4, and s 109 specifically states that school principals are vicariously liable for acts of discrimination that breach Part 4.[36]

1. The applicant's advocate has misinterpreted s109. It is directed to the relational between principal and agent. It does not create any category of liability applicable to "school principals".
2. The allegation in relation to s 109 fails. The allegations against Ms Dauncey, insofar as they relate to alleged indirect discrimination also fail.

Discussion - Allegations of indirect discrimination against the State of Victoria

1. The allegation of indirect discrimination under the 1995 Act is set out in paragraph 10 herein.
2. The allegation of indirect discrimination under the 2010 Act is set out in paragraph 11.
3. The first matter that the applicant must establish is the imposition of a "requirement, condition or practice" within the meaning of s 9 of the 1995 Act and s 9 of the 2010 Act. The respondent's counsel, in her written submissions referred to the principles involved in the formulation of a "requirement, condition or practice". She submitted:

A requirement, condition or practice must be identified with precision, as a respondent is entitled to know the requirement, condition or practice it is said to have been imposed on an applicant.[37] It must be real, not artificially constructed, and must be distilled from the evidence.[38] It is the starting point that is required before questions of unequal impact (or disadvantage) and justification can be considered. An ad hoc response by a person confronted with a particular incident involving a person said to be discriminated against will not be a "requirement, condition or practice" in the sense contemplated by the legislation.[39]

1. In its first set of submissions the Commission contended (and it was agreed) that the condition was capable of being expanded into three separate conditions namely:

A condition that HL meaningfully participate in his education without a full-time dedicated aide;

A condition that HL meaningfully participate in his education without a formal communication method; and

A condition that he meaningfully participate in his education without a positive behaviour management plan, being the use of a personalised token board every 3-5 minutes and more frequently if required.

1. Each is framed in the negative and the Commission pointed to section 11(b) of the 1995 Act and the 2010 Act which provide that it is irrelevant whether discrimination occurs because of a person doing an act or omitting to do an act. The Commission submitted that there were a number of cases where the courts have considered a requirement or condition that is framed in the negative.[40]
2. The Commission submitted that, in the light of these authorities, in the Victorian education context, a "requirement or condition" can be framed in the negative and can relate to services not provided by the respondent. It is not however entirely correct to say that the courts have considered the matter of the negativity of the condition. Rather in Turner, the Tribunal at first instance noted that the complainant had alleged and the State conceded that it imposed a requirement that the applicant access her education without a full time teacher's aide. I infer that the continued acceptance of this stemmed from the provision in s 11(b) of both Acts.
3. That said, the Commission conceded that conditions framed in the negative are not without difficulty and the courts have taken different approaches in considering whether these conditions framed in the negative are appropriately neutral or applicable to a group of people. (As a matter of interest I note that the Federal Disability Discrimination Act 1992 does not have a provision equivalent to s 11(b) of the Victorian Acts but negatively framed conditions brought pursuant to that legislation have been dealt with without demur.)
4. Both the respondents' counsel and the Commission referred to a Federal Court decision in Abela v State of Victoria.[41] So too did the applicant's advocate. The applicant in Abela alleged indirect discrimination by an educational authority contrary to s 6 of the Disability Discrimination Act 1992 (Cth), a provision that also required the identification of a requirement or condition that was said to have been imposed by the alleged discriminator. The particular requirement or condition alleged to have been imposed was a requirement or condition that the applicant access his education without the assistance he required, namely:
   • Significant, if not full time, one to one assistance in his academic subjects from a teacher or aide who is trained in the management of his disabilities;
   • Modified curriculum;
   • An Individual Education Plan developed in consultation with the experts in the applicant's disabilities; and
   • Speech/language therapy, in that the applicant was said to require speech therapy by a speech pathologist, and the development of an individual program by the speech pathologist, which was to be implemented in the school.
5. Relevantly s 6 of the Disability Discrimination Act 1992 (Cth) provides that a person discriminates against another person on the ground of a disability if the discriminator requires, or proposes to require the aggrieved person to comply with a requirement or condition. Although the wording of s 6 of the Commonwealth Act and s 9 of the 2010 Act are not identical, their thrust and intent are the same. True it is that s 6 still contains a requirement that because of his or her disability, an aggrieved person does not or would not comply or is not able to comply, but otherwise the intent is the same. There must be an imposition of a requirement or condition that has, or is likely to have, the effect of disadvantaging persons with the disability. So it can be seen that HL's case is very similar to Abela.
6. In Abela, the Federal Court was critical of the formulation of the alleged requirement or condition, which it held was not a requirement or condition within the meaning of s 6 of the Disability Discrimination Act. Tracey J held that Abela's pleaded case was fundamentally flawed for a number of reasons.
7. The findings of Tracey J were as follows:
   • In order to found a claim for indirect discrimination, a requirement or condition must have general application (it must be 'facially neutral') but bear oppressively on a particular cohort or group that the legislation is designed to protect.[42] The protected group is a sub-group of the larger group, whose members are all subject to the requirement or condition.[43] Thus a requirement that students at a school should utilise a toilet in a building other than the one in which their classroom was located is discriminatory against disabled students who, by reason of their physical disability, regularly require urgent access to a toilet,[44] and a requirement that all students attending a school should comply with the school discipline policy is discriminatory against students who suffered from a psychological condition that rendered them incapable of compliance.[45]
   • The requirement or condition indentified by the applicant was not a requirement or condition of general application; instead, it was a complaint that the Department failed to act in particular ways in response to the applicant's particular disability-related needs.
   • Instead of identifying requirements and conditions that applied generally to the students at the school the applicant attended, but which fell onerously upon him by reason of his disabilities, the applicant had sought to construct a litany of purported deficiencies in the services provided by the Department to him as a disabled person.[46]
   • In addition, an alleged requirement or condition must be framed in a way that does not leave a respondent in doubt as to the conduct that is said to give rise to the complaint. It ought not import qualifying adjectives to describe the requirement or condition, such as 'significant', 'modified' or 'dynamic'. An alleged requirement or condition must not introduce issues about the standard at which the particular incidents of service should be provided. The introduction of qualifications that require a respondent and the Court to form a judgment, not about whether or not a particular condition has been imposed, but rather whether a service has been provided at a particular standard or quality, tend to imprecision. Respondents would be left to make their own subjective assessment about whether or not they have provided services at the standard that meet the adjectival description.[47]
8. Respondent's counsel in her written submissions set out what she saw as the principles arising from the Abela decision. She submitted:
   • As in Abela, neither the condition, nor any of the three sub-conditions within it, is a requirement of general application, but is instead specific to the perceived need of HL to have a dedicated aide, a formal communication method and a personalised token board used at least every three to five minutes.
   • The lack of general application is apparent not just from the content of the condition (which is clearly responsive to the perceived disability-related needs of HL as an individual) but from the fact that the applicant has pleaded that the condition has been imposed on HL, not on some broader group of individuals.[48]
   • The lack of general application is most starkly demonstrated by considering the no personalised token board 'sub-condition'.
   • The evidence in relation to the personalised token board is that it was intended to be used "on behaviour",[49]so that if HL was behaving, positive reinforcement would not be required as frequently as every three to five minutes - the frequency of use was dependent on HL's needs over time.[50] The no personalised token board condition is, by definition, incapable of having general application to a group of individuals, as it has been formulated in response to the particular changing needs of an individual, namely HL.
   • The fact that the applicant has framed this case by reference to a condition that is incapable of general application appears to stem from a misunderstanding about the requirement of facial neutrality. In opening, the applicant's representative said that '[t]he test of where something is facially neutral is whether the requirement or condition is imposed on students without disabilities'.[51] This is incorrect. The applicant's representative has conflated the threshold requirement to identify a facially neutral requirement, condition or practice, with the additional requirement to demonstrate that the facially neutral requirement, condition or practice impacts disproportionately on or disadvantages people with the applicant's disabilities.
   • To the extent that the applicant appears to submit that the decision of the Full Federal Court in Hurst v Queensland[52] supports the facial neutrality of the condition, that submission should be rejected. The condition imposed in Hurst was clearly one of general application, and was accepted as such by the parties in that case. The condition was derived from a policy document formulated by the Queensland Education Department which applied in all Queensland Government schools. The policy document treated signed English (which involved a combination of lip-reading and signing) as the preferred method of instruction for the development of communication and literary skills across Queensland schools. The effect of the policy document was that all hearing-impaired persons in the Queensland Government school system (including the applicant) were required to be taught without the assistance of an Auslan teacher or Auslan interpreter.
9. The reference to "facial neutrality" stems from the explanation given by the High Court in Waters & Ors v Public Transport Corporation.[54] Waters, it may be recalled, was the case involving the removal of conductors from some trams and the introduction of "scratch tickets" for use on public transport. The appellants were nine disabled persons. Dawson and Toohey JJ, whose reasoning on the subject has long been accepted, had this to say:

A distinction is often drawn between two forms of discrimination, namely 'direct' or 'disparate treatment' discrimination and 'indirect' or 'adverse impact' discrimination. Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race). On the other hand, indirect discrimination occurs where one person appears to be treated just as another is or would be treated but the impact of such 'equal' treatment is that the former is in fact treated less favourably than the latter. The concept of indirect discrimination was first developed in the United States in relation to practices which had a disproportionate impact upon black workers as opposed to white workers. Both direct and indirect discrimination therefore entail one person being treated less favourably than another person. The major difference is that in the case of direct discrimination the treatment is one its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable.

1. The Commission referred to Abela and set out a summary of the findings. It went on to submit:

The Commission also notes that the Tribunal has considered claims of indirect discrimination where the condition, requirement or practice has been framed in the negative , in relation to other areas of public life. For example, in Hall-Bentick v Greater Union Organisation Pty Ltd[55] the Tribunal upheld a claim that a cinema had indirectly discriminated against an applicant in a wheelchair, by imposing a requirement that to see films at the Russell Cinemas, a person needed to be able to get up and down stairs. In considering the breach the Tribunal focussed on the general requirement imposed and the reasonableness of that requirement generally, not what was specifically required for the applicant to access the cinema.

1. In that case Senior Member Lyons obviously had some difficulties understanding the case put by his self-represented applicant but he clarified that the "requirement, condition or practice" which the applicant asserted the respondent was imposing on him, was "the requirement that to see films at the Russell Cinema, a person needed to be able to get up stairs and get down stairs". Because he was confined to a wheelchair he could not meet the requirement whereas others who did not need wheelchairs could do so. The Senior Member stated that "implicit in [the applicant's] claim of indirect discrimination was that a condition or requirement for use of the male toilets was that a person not be confined to a wheelchair and that was a condition [the applicant] could not meet.
2. The applicant's advocate restricted her submissions on Abela to the following:

We reiterate our opening that the references to other cases such as Abela are irrelevant, apart from the decision being under appeal. The requirements and conditions aren't the same. In Turner, the requirement or condition was that Rebecca access her education without a full-time teacher's aide. It is pretty well much the same. None of the other formulations in the cases that the respondents referred to in its opening are the same. So it is inappropriate to look at other failed education cases where the pleadings are different and hope that criticisms made in those will stick to our case.

1. Shortly before that submission she had stated that she would:

...talk about the fact that the claims are framed in the negative. I have given examples of some of those cases where such claims have been successful. The requirements and conditions are facially neutral. Children without HL's disabilities are generally provided their education without an aide, without a speech pathologist developing formal communication method and without a two-way token board.

1. In her written submissions the advocate submitted that:

The test of whether something is facially neutral is whether the same requirement or condition is imposed on students without [HL's] disabilities. It should not be compared to students at Marnebek School. The applicant does not suggest that any child at Marnebek has an accessible education.

In terms of being facially neutral, students without disabilities attending government schools are subjected to the requirement or condition that they access their education without:

(ii) a formal communication plan supervised by a speech pathologist:

(iii) a positive behaviour plan based on the two way token board.

1. The respondent's summary on this matter is that the present case is analogous with Abela in that the applicant's complaint is that the State of Victoria failed to act in particular ways in response to HL's particular disability-related needs. She submitted that the condition is not a "requirement, condition or practice" within the meaning of s 9 of the 1995 Act and the 2010 Act. It is not facially neutral, and also it impermissibly introduces qualifications that require a subjective assessment of the services provided to HL at Marnebek.
2. I am aware that the judgment of Tracey J is on appeal and is listed to be heard in March 2015 but of course that does not mean I cannot have regard to the analysis contained therein although I am not bound by it. I am aware that there are subtle differences that arise as a consequence of the amending 2010 Act and that these differences were not considered by the Federal Court. I am also aware that the Supreme Court appeal in Turner was predominantly about remedy but the issues ventilated in Abela (facial neutrality and a requirement that is of general application ) were not the subject of consideration by the Supreme Court in Turner or indeed by Deputy President McKenzie at first instance.
3. The question then is whether the new definition in the 2010 Act provides for a clear slate which renders inapplicable past case law and contemplates a fresh start. That said, it seems difficult to disregard the requirement for facial neutrality which to my mind still underpins the section.
4. I have however formed the view that his Honour's analysis is entirely apposite to the application made pursuant to the 1995 Act and, as a result, that part of the application falls at the first hurdle. In coming to that conclusion I have accepted the submission of the respondent summarised, as it is, in paragraph 63. The complaint fails because the condition (see paragraph 10) is not a "requirement, condition or practice" within the meaning of s 9 of the1995 Act. It is not facially neutral and introduces qualifications that require a subjective assessment of the educational services provided to HL at Marnebek during the six or seven month period ending on 31 July 2011. Further, insofar as the 1995 Act retains the comparator requirement, the applicant's submission that the appropriate comparator would be children at another school who did not have disabilities, operating under a different model, is rejected.
5. I now turn to consideration of the newly minted definition found in s 9 of the 2010 Act. (That allegation covers the period from August 2011 to May 2012). That section has currency when an unreasonable requirement, condition or practice (which might appear to treat people equally - that is, a neutral requirement) has the effect of disadvantaging, or potentially disadvantaging, persons with a particular protected attribute.
6. The explanatory memorandum to the 2010 Act notes that the amended s 9 removes:

the requirement that the person claiming indirect discrimination must demonstrate that he or she cannot comply with the requirement, condition or practice and instead requiring the person to show that the requirement, condition or practice causes, or is likely to cause, him or her disadvantage removing the requirement that the person claiming indirect discrimination must establish that a substantially higher proportion of people without the attribute that he or she has, can comply with the requirement, condition or practice (proportionality test);[56]

1. There is no doubt that the amendment to s 9 sought to simplify matters relating to indirect discrimination. Using the argument in Abela and other cases, the requirement, condition or practice must be imposed, and clearly that imposition must be on a cohort - not just on one person. If Abela and the earlier cases are still applicable, then the general cohort must be either all Victorian students or the 300 plus students at Marnebek or all the students in HL's class. Bearing in mind each of the students at Marnebek is impaired, this would produce a contrived result. (If the cohort is the class or the students at Marnebek, what is it that sets HL apart from the other students?) Certainly, the applicant's interpretation stretches the legislative intention. The applicant has neither alleged nor proved that the requirement or condition (or any of the three sub-conditions) has been imposed by the State of Victoria throughout the Victorian school system. On the contrary, the evidence is that the condition is not imposed on HL at his current school where he is said to have a dedicated aide and a formal communication method.[57] This of course is in direct contrast to Hurst.
2. Again, I refer to Abela. His Honour spoke of the difficulties arising where, as in this case, qualifying adjectives were used to describe an impugned requirement or condition. (In HL's case case, "formal", "personalised" "alternative effective communication method" etc were used) He referred again to Waters[58] and then Hurst[59] and noted that:

A Full Court of this Court accepted [in Hurst] that an education provider had impliedly imposed a condition that students "be taught in English (including signed English) without the assistance of an Auslan teacher, or an Auslan interpreter". The Court found that it was possible for each student in a "normal" school environment to receive instruction without the assistance of an Auslan interpreter but that profoundly deaf students were seriously disadvantaged by such a regime. See also Nojin v Commonwealth.[60] In these cases the respondent was left in no doubt as to the conduct which gave rise to the complaint. In Waters it was the respondent's decision to cease to employ conductors on its trams. In Hurst it was the respondent's failure to provide instruction using the Auslan method of signing. As formulated the requirements and conditions did not introduce issues about the standard at which the particular incidents of service should be provided. The introduction of qualifications which require a respondent and the Court to form a judgment, not about whether or not a particular condition has been imposed, but rather whether a service has been provided at a particular standard or quality, tends to imprecision. Respondents are left to make their own subjective assessment about whether or not they have provided services at the standard which meets the adjectival description. The Court could be called upon to make value judgments and possibly resolve conflicting expert evidence in order to determine what was comprehended by the alleged requirement or condition.

1. Referring to the judgment of Gray J in Walker v State of Victoria[61] his Honour cited some of Gray J's comments made in that case, brought as it was, pursuant to the Disability Discrimination Act. At [73] his Honour observed that:

No provision in 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.

And at [72] Gray J also said that the Act was "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.

1. Tracey J at [102] then summarised the position as he saw it thus:

This, unfortunately, is yet another case in which a well-meaning parent has been led to believe that redress is available under the DDA for what he perceived to be deficiencies in the manner in which educational services have been provided to his or her children by an educational provider.

1. Notwithstanding the pared-down version of s 9 of the 2010 Act, the absence of a condition of general application is telling. It is not identified. Is it the school? or the class? or the entire body of State students? It is for that reason that I have found that the requirement of facial neutrality is not made out.
2. There are a number of cases pleaded in the negative where the requirement of facial neutrality has been made out so it is clear it is not an unreachable target. For instance in Beasley v State of Victoria[62] the requirement was the school's preference to use Sign Supported English for communication with its hearing impaired student cohort in circumstances where the applicant required something different, that is, Auslan. Hurst v Queensland, Minns v New South Wales and Waters v Public Transport Corporation are other examples.
3. Counsel for the respondent submitted that it had been hard for the respondents to extract the bona fide discrimination claim in this case because in her words "it is just a case about a whole lot things that happened or did not happen at Marnebek that have caused RW to be unhappy, and trying to turn all of those things into a condition for the purposes of indirect discrimination requires you to run that condition through the elements of s 9 of the [2010 Act], and the way the condition has been formulated makes it impossible for this element to ever be satisfied in a special school setting where the children have the same disabilities as [HL]".
4. Overall I am persuaded that the allegation that the State of Victoria breached ss 9 and 38 of the 2010 Act by its indirect discrimination of the applicant falls at the first hurdle. The cases make it plain that a requirement, condition or practice must be identified with precision as a respondent is entitled to know and understand what is said to have been imposed by it. It must be real, not artificially constructed and must be distilled from the evidence. Notwithstanding the simplicity sought by the 2010 legislation, to my mind the section is still underpinned by a requirement that there be the imposition of a requirement, condition or practice of general application that is neutral on its face. I find that the condition as pleaded by the applicant, alternatively the three sub-conditions extracted therefrom, are not capable of founding a claim of indirect discrimination. None of them is a requirement, condition or practice that is of general application.

1. The applicant's advocate submitted the Tribunal should draw inferences arising from the respondent's failure to rely on the evidence of Ms Emma McCarthy or to call Ms Margaret Kaplan. It seems this submission relates to both the claim of indirect discrimination and the alleged breach of s 40. Of course, in relation to the indirect discrimination claim, the burden of proof is reversed (see s 9(2) of the 2010 Act) but no such reversal is made under s 40. In her written submission, the advocate put her submission as follows:

As her Honour Warren noted in CGU Insurance Limited v CW Fallaw & Associates Pty Ltd[63] in relation to the rule:

'it is the unexplained failure by a party to call a witness who is in the camp of that party (emphasis added) that attracts the operation of the rule in Jones v Dunkel'

There are two employees of the respondent who are best placed to argue that the requirement or condition placed on [HL] to access his education without his personalised two way token board as proscribed (sic) by Ms Atkin and RW, was reasonable, or that as adjustments to s40, it was unreasonable. The onus is on the Respondents to prove this except for the period to August 2011.

1. Ms McCarthy, who is described as the Senior Clinician and Challenging Behaviour Analyst at Marnebek, was not called by the respondent although she had made a statement that was filed with the Tribunal. Ms Kaplan is the school psychologist. The advocate made submissions about what could have been adduced from each of them. In relation to Ms Kaplan, she submitted that Ms Kaplan "should have been able to support what we assume is the Respondent's final position, as it is obligated to prove, that the requirement and condition that HL access education without the two way token board is not reasonable".
2. The respondent's counsel pointed out that the application was not about whether the school should or should not have involved Ms Kaplan in HL's education and that, in any event, this was not raised in the indirect discrimination case. She continued:

The requirement that is said to have been imposed is not a requirement that HL participate in his education without the benefit of Ms Kaplan's assistance. If that was the case that could have been asserted. And the s 40 reasonable adjustments case is also not about Ms Kaplan because the respondents have not advanced a case in response to the s 40 allegation that suggests that the adjustments that were made at Marnebek involved any services provided by Ms Kaplan.

Ms Kaplan is not a material witness in the proceeding and no adverse inference can be drawn from the respondent's decision not to call her to give evidence in the case. And, in fact, it is a somewhat surprising submission that an adverse inference should be drawn from the failure to call her because on the applicant's own case Ms Kaplan had no involvement with HL.

1. The applicant's submission about Ms McCarthy was that the respondents "withdrew Ms McCarthy" because she would harm the respondents' case due to the following:

She was completely unqualified to do the task at hand;

She could have confirmed with certainty that there was no functional behaviour assessment, no behaviour analysis, no data collection as is required by Marnebek procedures;

She would have to explain who was giving her information supposedly about the family which was based on supposition and which was erroneous;

She would have to explain why she was developing behaviour plans that were not consistent with Marnebek and Department of Education policy, that is ensuring consistency in behavioural approaches by consulting the parent;

She would have to explain comments such as for the entirety of second term in 2011, teachers could not get the simplest compliance from HL;

Most importantly, she would have to explain why there was a wrist strap as a behaviour strategy.

1. The respondent's response, which explanation I accept**,** was as follows**:**

The evidence about the behaviour support plans and Ms McCarthy and her role in them is not part of the indirect discrimination case because it is not relevant to any pleaded condition. But it is also not relevant to the reasonable adjustment case ...because the respondents are not running a case about the reasonable adjustments that were made at Marnebek School that involves any services provided by or any conduct of Emma McCarthy. It may well be that there are a whole lot of things that [RW] would have liked her representative to ask Emma McCarthy.... We made very clear at the outset on the day after the change to the pleadings, we considered it overnight and made it clear at the outset so that there would be an opportunity to subpoena Ms McCarthy if they wanted to, that we would not be calling her in the case. We were careful to give notice about that so that the option was open. It was not taken up, and we think it was not taken up because the reality is that there is no relevant evidence that she can give.

1. I turn now to a consideration of the allegation of the respondent's failure to make reasonable adjustments. Before doing so and without dealing with all of the individual concerns articulated by the applicant, it is useful to put the reasonable adjustment allegation in some temporal context. The applicant in her first written statement referred to a letter she and her husband had written to Ms Dauncey. This letter was dated 7 May 2012 and set out the reasons for withdrawing HL from Marnebek. Without wishing to comment on the accuracy of the individual comments, the letter serves to explain the frustration experienced by the parents and puts some of their concerns in context. The applicant set out HL's history at Marnebek in the following vein:

(a) the successful year HL had in 2010 with the positive behaviour strategies implemented by the Department of Human Services and his teacher Sam Baker;

(b) the refusal by Lauren Wood to follow the behaviour program;

(e) locking him in the outdoor sensory garden to stop him running away at the end of play time;

(f) leading him around the school using a wrist strap;

(g) strategies that I regarded as barbaric which had been used without my consent;

(h) refusal by the school to use the strategies I had put forward;

(j) the failure of the school to report incidents to me;

(k) physical restraint of HL every Friday at assembly;

(l) inappropriate classroom placements he had in 2012;

(n) HL's school refusal and self harm when confronted with going to school (sic);

(s) the failure by the school to provide HL with an iPad to assist his behaviour;

(t) the failure by staff to use the communication book;

(u) the papering over the windows of the classroom;

(v) the locking of the gate to stop parents accessing classroom;

(w) the occupational health and safety risks of locking the internal gates;

(x) the failure by the school to wok productively with me to address any of the above issues.

1. Around the same time (June 2012), the applicant had asked her privately- engaged psychologist (Ms Atkin) to provide a letter in support of an application for home schooling. Again, as a matter of context and without commenting on the accuracy or otherwise, I set out Ms Atkin's letter on the basis that the applicant had confidence in her, had great regard for her professional opinion and viewed her recommendations in an influential light:

[HL] has a diagnosis of an Autism Spectrum Disorder. He also suffers from anxiety related behaviours and has an intellectual disability, which affect his ability to function and learn in a mainstream or special education environment. [He] has many challenging behaviours that have been unable to be managed effectively in a special developmental school environment, despite frequent consultation with psychologists. These behaviours include:

- engaging in attention seeking behaviours that are dangerous

[HL] has been unable to learn in special education environments due to his high anxiety levels. He has started to regress and lose previously learnt skills. In a home schooling environment, [he] is able to engage and learn. His anxiety related behaviours doe not affect his ability to learn at home.

He requires to be home schooled due to these medical conditions.

1. Before proceeding to the reasonable adjustment claim, there are some other pertinent observations to be made. To some extent I express them as a consequence of the views set out in the two preceding paragraphs. It is clear that the school's record keeping is, in some respects, less than optimal. That said, I do not expect every set of guidelines and requirements emanating from the various departments will be slavishly adhered to or that every conversation between the parents and staff will be reduced to writing.
2. It is equally clear that the communication between the school and HL's mother was poor and that, for the last nine or ten months, it was mostly tense and fraught. I accept that the applicant might be viewed as a persistent and opinionated parent but I also accept that she constantly sought what she saw as best for her child and resented the fact that her requests were not met with acquiescence. After all, given the diagnoses of several of her children, she was not without significant experience in the world of children with disabilities. I do, however, accept that there may have been an element of second guessing arising from the perceived conflict of ideas expressed by school personnel and those emanating from private professionals hired by the parents. Certainly, any positive progress made by HL during the period was, as far as the applicant was concerned, solely attributable to her own efforts and those of Ms Atkin.
3. The applicant prepared and adopted lengthy statements attesting to a wide range of the school's omissions and failings. Many of these were extraneous to the allegations as eventually pleaded but they included:
   • a failure to consult with her;
   • a failure to obtain her consent to particular events or programs;
   • HL was locked in a courtyard;
   • he was alone in the sensory garden;
   • a behaviour management plan was prepared without her knowledge or input;
   • the staff rarely told her anything - she always had to institute enquiry;
   • there was no Picture Exchange Communication System ('PECS') program and no preliminary assessment and investigation but in any event she did not want HL to receive a PECS program;
   • she had never witnessed a visual schedule in assembly;
   • there were no student support group meetings;
   • there was no transition plan to prepare HL to attend assembly;
   • there was no positive reinforcement;
   • he was restrained and secluded;
   • he was locked in a seclusion room;
   • she was never involved in the development of his goals or in the evaluation of his progress;
   • from 2011 onwards her input was ignored;
   • staff denied her son was smearing himself with faeces and ignored her son's smearing.
4. These are only a smattering of the events and concerns ventilated by the applicant. She responded comprehensively to staff statements and presented a very negative view of her son's attendance at the school. Her version of the deterioration of her son's skills did not match the school reports presented to the Tribunal. She disagreed with most of the respondent's evidence. Much of her evidence, if it is accurate, is troubling, but little of it related specifically to the allegations as framed. Whether there is another forum that deals with complaints such as hers is not clear but this Tribunal has limitations on what it can hear and decide. As I indicated earlier I do not intend to rehearse all the evidence but suffice to say, there was little unanimity between the applicant and her witnesses and the school principal and her staff. I have included the above matters by way of explanation of the spread of evidentiary matters (both relevant and irrelevant) traversed before the Tribunal.
5. The reasonable adjustment allegation relates to the period between 1 August 2011 and May 2012. Section 40 of the 2010 Act is set out in paragraph 22 of these reasons. It is a stand-alone provision, a breach of which amounts to discrimination without reference to any of the tests for direct or indirect discrimination.
6. In the second reading speech of the 2010 bill, then Attorney-General Hulls referred to the new section under the heading "Duty to make reasonable adjustments for people with impairments" as follows:

The current act imposes duties on employers, educational authorities and service providers to make reasonable adjustments for people with impairments. These duties are implied by the requirement not to indirectly discriminate and by various exceptions allowing discrimination against people with impairments in certain circumstances.

The bill reframes the existing exceptions as positive duties to make reasonable adjustments for a person with an impairment. This approach provides greater clarity and certainty about the obligations of duty-holders under the act and will more effectively address systemic discrimination experienced by people with disabilities.

The new provisions set out a list of factors relevant to determining whether an adjustment is reasonable, which provides guidance about how to balance the action to be taken with the expense or effort involved. The bill continues to allow discrimination where an adjustment is not reasonable or would not be effective.

1. The reasonable adjustments sought by the applicant were spelled out in the applicant's amended particulars of complaint and mirrored the earlier claim of indirect discrimination. Only the particulars differ. Although the actual allegation of the third adjustment was reduced on the first day of the hearing, the reasonable adjustments sought were threefold and were expressed as follows:

(d) undertake speech/communication recommendations as directed;

HL required a speech pathologist to assist him in developing his speech in order that he could communicate his wants and needs to third parties; and

In the event of the withholding of support for his speech, HL required and (sic) alternative effective communication method in order that he could communicate his wants and needs to third parties.

The positive behaviour plan was required to be supervised by a psychologist, who would closely monitor and evaluate the plan to ensure its success.

[The plan would] address [HL's impediments] being:

Inability/difficulty in having appropriate social interactions with others;

[The plan would] be developed pursuant to best practice guidelines as set out in documents such as:

(a) Including students with Disabilities: a Curriculum Toolkit for Schools and Teachers (DEECD);

(b) Effective Schools Are Engaging Schools (DEECD);

(c) Evidence-based Guidelines to Reduce the Need for Restrictive Practices in the Disability Sector (Australian Psychological Society);

(d) Physical Restraint direction paper May 2011 (Office of the Senior Practitioner).

Such best practice guidelines being a Positive Behaviour Plan -

(c) developed and overseen by a psychologist primarily, and multidisciplinary team;

(d) containing goals, strategies and measurable outcomes;

(e) requiring data collection, monitoring and evaluation at a rate commensurate with the frequency and severity of the behaviours;

(g) attaching associated documentation containing appropriate regulations and guidance in regard to physical restraint, should staff be using such methods.

1. The applicant submitted that, without the supports set out in the complaint, "HL ceased to participate or derive any substantial benefit from the educational program at Marnebek" and pointed to the reference in s 40(2) to "providing a teacher's aide" as an imprimatur for one to be provided. The evidence given by the applicant, and to some extent by Ms Atkin, is that HL ceased to derive any benefit as a result of the supports not being provided. Their view, although supported to some extent by the applicant's lay witnesses, is not shared by the Marnebek teachers.
2. In AB v Ballarat Christian College[64] Member Wentworth made the following helpful (and in my view, correct) observations about s 40:

The requirement to make reasonable adjustments and the factors included in section 40(3), make it clear that section 40 is not a requirement to create a perfect environment for every student with a disability regardless of the nature and extent of the disability, and regardless of the funding or teacher time required.

Financial impact on the school, and the impact on staff and other students are relevant factors to take into account in determining whether an adjustment is reasonable. This signals, in my view, that it is not assumed that a school will have unlimited funds and staff resources.

By including these factors, section 40 makes it clear, in my view, that a school is not required to use all available funds and all available teacher time in order to make adjustments for one student. Nor is it required to do so to the detriment of the needs of other students, and the ability of teachers to use their time, expertise and energy towards the education of all the students in their class.

Including the effect on the person of making the adjustment as a factor also makes it clear, in my view, that need and effectiveness are relevant considerations.

1. Mr Tainsh is currently the Director, Inclusion Access and Participation in the Department of Education and Early Childhood. He gave generalised evidence about the Victorian Government's Program for Students with Disabilities (PSD) and explained that the program was designed to provide supplementary resources to Victorian Government schools to increase their capacity to support students with moderate to severe disabilities. He told the Tribunal that PSD funding, as with general funding of Victorian schools, is provided directly to the schools at which eligible students are enrolled. The principal of each school determines how such funding is to be spent in the context of the individual needs of the student for whom the funding has been allocated and the available resources in the school. In his statement he set out the following explanation:[65]

Resources from the PSD can be used in a number of ways to support students, including the employment of teaching staff and specialist staff (eg, Special Needs Coordinator, occupational therapists, speech pathologists), teacher professional development, purchasing specialist equipment and materials, funding specific educational programs and employment of education support staff.

In a dual mode school such as Marnebek, the majority of students have a PSD level of funding. This permits the development of an overall environment that is adapted for the delivery of education to students with an intellectual disability or autism spectrum disorder in a way that is consistent with a universal public education system. Dual mode schools, special schools and special development schools have more students who are similarly disabled than schools with lower numbers of students on the PSD, which allows them to achieve certain efficiencies in the delivery of some programs to their students. As a result, at schools like Marnebek, the overall teaching environment is intended to operate as an adjustment to assist children with disabilities to access their education.

In the dual mode environment such as at Marnebek, or in a special school or special developmental school, there may be [Education Support Officers] in every classroom. Generally speaking, there will be a smaller number of students in each class than would be the case in a mainstream school. There may be only eight or so students in a classroom and there may be one teacher and one aide. The purpose of having this staff to student ratio is to ensure that the students have access to flexible teaching and support within the context of a specialist setting.

1. What Mr Tainsh's evidence makes clear is that individual principals have considerable power in how they allocate PSD funding across their schools.
2. Ms Dauncey confirmed that PSD goes into a consolidated fund and that during the relevant 10-month period those funds were directed to the following:[66]
   • (1) a full-time clinical services leader, responsible for managing a team of therapy support staff and an allied health team;
   • (2) a full-time occupational therapist;
   • (3) a full-time psychologist;
   • (4) a part-time behavioural consultant;
   • (5) a part-time speech pathologist;
   • (6) aides who supported above staff including a part-time speech pathologist assistant, a full-time occupational therapy assistant and a full-time physiotherapy assistant;
   • (7) classroom aides;
   • (8) a part-time music therapist;
   • (9) a full-time nurse; and
   • (10) a part-time social worker.

Were the three adjustments sought by the applicant reasonable?

1. Reasonableness is a question of fact; it requires an objective assessment and a weighing up of all relevant factors. In Clarke v Catholic Office,[67] Madgwick J considered the test of "reasonableness" in the context of a case brought under the Disability Discrimination Act by the parent of a profoundly deaf student. He stated that 'the test is less demanding than one of necessity, but more demanding than a test of convenience" and cited with approval the sentiments of Harper J in Victoria v Schou.[68] Harper J had noted that "anti-discrimination legislation should be construed liberally. Getting the balance right will often be difficult".
2. The Commission spoke to the requirements of s 40 and made a number of submissions on their interpretation. Counsel prefaced those submissions with some general observations as follows:

Section 40 requires an educational authority to balance varying interests. None of these factors are determinative on their own and there may be other factors that are relevant to a particular case.[69] In AB, Member Wentworth noted that:

'...a school is not required to use all available funds and all available teacher time in order to make adjustments for one student. Nor is it required to do so to the detriment of the needs of other students, and the ability of teachers to use their time, expertise and energy towards the education of all the students in their class.'

Whilst the Commission agrees with this statement, it submits that the Tribunal should also give due weight to the evidence regarding the needs of the student, the effect on the student of making the adjustments and the benefit they would derive from those adjustments, and whether the adjustments will facilitate the student's participation in their education. This means that in an overall budgetary context, the measures should not be ruled out simply because they will cost money or may require the reallocation of budget. This would undermine the operation of section 40 and the full range of factors to be considered.

1. In making this general observation, the Commission referred to fact that in AB, the respondent was a non-government school and that in this case, the focus should be on the resources of the respondent department as distinct from that of the individual school.
2. The Commission also submitted that the fact that the first respondent was a public authority under the Charter, and had an obligation to give proper consideration to, and act consistently with human rights, would also be relevant to any consideration of what is reasonable in all the circumstances. It follows, it submitted, that the Department's obligations under the Charter will be relevant to the application of s 40. I am not persuaded that is correct given the matters complained of in respect of the Charter claim herein are not the same as the reasonable adjustments sought.
3. The respondents' position is that the learning environment created at the school together with particular individualised strategies that were put in place for [HL], constituted all the reasonable adjustments that were necessary to permit him to derive substantial benefit from the educational program offered at the school.
4. The respondent's counsel submitted that the following factors demonstrate that the absence of a dedicated aide condition and the absence of no personalised token board condition used every 3-5 minutes, were reasonable. She submitted that the school operates on a model specifically designed to respond to the needs of intellectually disabled and autistic children such as HL. This model involves:
   • a smaller numbers of students in each classroom with a higher proportion of staff in each classroom than in a mainstream school. (In 2011 for instance he was one of eight students in a classroom with a teacher and a fulltime aide);[70]
   • the engagement of classroom aides;
   • the provision of specialist equipment;
   • specialist programs and services provided by specialist health care professionals and support staff;
   • a modified curriculum;
   • a highly individual approach to learning including the development of individual learning plans and holding student support group meetings;
   • purpose built environments for intellectually disabled and autistic children such as the sensory garden and sensory rooms; and
   • a focus on the development of independence.
5. Further, she submitted that HL was assisted by the implementation of a variety of strategies to assist in his education including:
   • the development on individual learning plans;
   • the use of a modified curriculum which includes modules designed to teach targeted skills including literacy, mathematics, fine motor skills, communication skills and physical and social learning skills taught in a way that had regard to the specific needs identified in his individual learning plans;[71]
   • the use of the formal communication method incorporating sessions with a speech pathologist, the use of PECS and a range of strategies and techniques designed to assist with his communication.
6. The respondents' witnesses were cross-examined at length. Much of this was in minute detail and much of it concentrated on the failure of Marnebek staff to adhere to the applicant's requests about what she believed was best for her son and on the failure, as she saw it, of the Marnebek staff to adopt recommendations provided by her private psychologist.
7. The applicant submitted that the "one size fits all" approach at Marnebek, "where they do things a certain way and a child either fits in or goes somewhere else is not consistent with the first respondent's approach to the education of children with disabilities which is to meet the individual needs of children no matter which school they attend".
8. The applicant reiterated her earlier submission that HL required reasonable adjustments to order to participate equally in his education and that the requirement for a dedicated aide was to assist with fine motor skills, to supervise his safety, to monitor and address his challenging behaviours, to undertake speech/communication recommendations as directed and to assist his learning.
9. Section 40(3) sets out the matters the Tribunal must consider in deciding whether or not an adjustment is reasonable. Including in those requirements is "any relevant action plan made under Part 33 of the Disability Discrimination Act 1992 of the Commonwealth and any relevant Disability Action Plan made under section of the Disability Act 2006.
10. Pursuant to s 40(5) of the 2010 Act, an educational authority is not required to make an adjustment under s 40(2) to the extent that the educational authority has complied with a relevant disability standard made under the Disability Discrimination Act in relation to the subject matter of that adjustment.
11. The State of Victoria does not rely on the exemption contained in s 40(5).
12. The applicant sought to make the Disability Standards for Education 2005 a positive part of her case by the assertion that there has been non-compliance with Parts 5 and 6 of the Disability Standards. However, this point was not pressed with conviction.
13. It is true that matters contained in the Disability Standards might be relevant to determining whether or not an adjustment is reasonable, but this Tribunal has no jurisdiction to hear and determine an allegation of a failure to comply with the standards. Insofar as the Commission submitted (albeit faintly) that the Tribunal is authorised to investigate non-compliance with the Disability Standards,[72] the better approach is that taken in AB v Christian College. [73] In that case Member Wentworth accepted that the content of the standards included a provision that an adjustment will be reasonable in relation to a student with a disability if it balances the interest of all affected and that the content expresses a recognition that there will be circumstances in which adjustments will not be required for a student with a disability. Of course, insofar as the Federal standards indicate, for instance, the relevance of consultation and communication in the context of reasonable adjustments, that is a matter capable of consideration by this Tribunal. And, as the Commission submitted, as a matter of practicality, what those standards require may be considered without undertaking any determination of whether they have been breached.

The first adjustment - the full-time dedicated aide

1. Ms Dauncey told the Tribunal that Marnebek's approach is very individualised because the student cohort has a range of requirements arising from their particular disabilities. In the junior school there are 8-10 students in each class and most classes are assisted by an aide, and sometimes by two.
2. She stated that all students (including HL) have individual learning plans setting individualised goals and strategies. Each student is taught the curriculum in a way that has regard to the specific needs indentified in the student's individual learning plan. Those plans are developed and reviewed about three or four times a year and are the subject of discussion between parents and teachers. Her evidence was that these discussions might take place at Student Support Group meetings.
3. In her first written statement she explained how particular environments in the school were designated to assist those students who suffered from autism spectrum disorder. Such students can experience "sensory overload" and may need assistance to regulate their anxiety. Two particular examples of the environments were:
   • a specially designed "sensory garden" which was built with the assistance of a Government grant and provides a soothing and safe play space in which students can touch, feel and smell things or sit still in quiet places; and
   • sensory rooms, which contain different kinds of visual, aural and tactile stimuli that can be soothing and calming for some children.
4. There is no argument that a full-time dedicated aide was not provided. Ms Dauncey explained the school's approach to this in her early statement to the Tribunal. A summary of her explanation follows :

Generally a one-to-one aide is only provided where it is considered necessary for safety reasons or where the student has high level physical needs such as mobility or complex medical needs.

In her opinion, HL was not such a student. Further she expressed the view that he was able to access the school's educational program because of the range of adjustments available including small class size, modified curriculum and specialist allied health therapies.

Insofar as it was been suggested that HL needed a one-to-one aide to assist with his fine motor skills, safety, challenging behaviours, speech communication etc, she pointed out that a high proportion of Marnebek students experienced such difficulties. In her second statement [74] she said that if it were found that HL required a one-to- one aide because of those difficulties, many other students would require (and continued to require) such an assistance. She considered that the provision of such assistance would result in a substantial detrimental effect for both students and the school.

The cost of funding one-to-one aides to many students at Marnebek would leave [her] with insufficient funds to provide the types of programs and services such as allied health professionals, specialists programs and specialist facilities such as the sensory garden. She stated that if one-to-one aides were provided to all students at Marnebek who had similar capabilities to HL, there would be insufficient funding to continue with the school's present functions".

Students with such aides would be deprived of the benefits of group learning including positive behaviour modelling from other students and would limit their independence.

1. The applicant's advocate submitted that the requirement of a full time aide flowed from available reports and recommendations "from Monash and Marnebek therapists" and "HL's paediatric neurologist" which reports used terminology such as "aide", "one-to-one" and "constant supervision". She submitted that which term was used was beside the point because when all the evidence was taken together, it was clear that during the ten-month period of the complaint, HL required one person dedicated to him.
2. I take it the evidence she refers to is to be found in various exhibits to the applicant's statements. For instance, in September 2008, (when HL was 4) Ms Sara Adler, a speech pathologist at Monash Special Developmental School concluded her assessment that HL's "language difficulties impact on his ability to interact with his peers and understand concepts and more complicated instructions. HL will require maximum 1:1 support to assist his development of language skills." The other reports are from occupational therapist Cheryl McFadyen and psychologist Martha Panagiotopoulos. All three of those reports flow from assessments made in 2008.
3. There are, however, more contemporaneous letters from Dr Lindsay Smith in June 2011 (copied to the school) setting out his support for extra funding and expressing his concern for HL's safety in the absence of dedicated supervision. The two letters were far from expansive and in any event, Dr Smith was not available at the hearing. One letter was to a general practitioner and contained advice about risperidone, ritalin and other medications and advised that he would be "writing a letter of support for extra funding from level 4 to level 5 or 6 because [HL's] attention span at school is such that he either will be demoted to a lower functioning class, or we need more one-on-one supervision for safety and concentration." The second letter, addressed to the Education Department, read as follows:

I have been asked to provide a medical report as it impacts upon the educational needs of [HL].

He has autism with very outgoing exuberant behaviour. He constantly tried to leave the school environment/classroom.

He has improved following the move to Marnebek and it is hoped that over the next 1-2 years he will mature allowing him to continue to gain benefit.

However, at the moment, his behaviour makes is unsafe for him, unless there is increased provision of funding for the school to allow a dedicated adult to supervise him.

1. There is no doubt that HL's parents thought he warranted 1:1 attention. Indeed, the parents assert that their son has improved dramatically in his new school where he has a one-to-one aide.
2. In the case of Ms Atkin, the pscyhologist employed privately in the home by the parents, she did not make this specific recommendation but one can certainly deduce from her evidence that she was quite concerned that there was insufficient focus on HL's individual needs as distinct from those of the class as a whole (the staff to student ratio at Marnebek was 1:9). The following paragraphs from her first witness statement (but dealing with the third of the adjustments sought) highlight that inference in the following way:[75]

The reward system being used by school staff for HL at the time (April 2011) was one which was for all children in a class, rather than something specifically for him. The reward system was the giving of stars to children. There was a visual schedule for the whole class rather than just for HL

I recommended that a two way token board be used for HL, and a daily schedule that was just for him be put on his desk in order to decrease his anxiety about what was happening each day.

A two way token board is a board where rewards are given to a child through the application of smiley faces or sad faces in response to good or bad behaviours.

The aim of this board is that it be used with the individual constantly. HL has a short attention span, and his behaviours are in the main attention seeking. Therefore, he required constant rewards for positive behaviours, rather than reactions to negative behaviours. When he was not receiving constant rewards for positive behaviours, he would engage in negative behaviours as those behaviours were getting him the attention he was seeking. In other words, if he ran away, someone would try and bring him back, if he stood on furniture, someone would try and get him down. So in the absence of consistent positive rewards, he behaved negatively as that would get him the attention he needed.

The aim for HL was to replace the attention he was receiving for negative behaviours, with rewards for doing the right thing. Due to [his] short attention span, the idea was that the tokens would be used constantly throughout the day.

1. Ms Atkin had visited the school in April 2011 and again in early February 2012.
2. In her closing submissions, the applicant's advocate made the following points. These she submitted were applicable to all adjustments sought and were in addition to all the individual contentions advanced by her.

[HL] did not make modest progress as suggested by the respondents in any area of the school. Not only did he not make modest progress, he made no progress, he regressed and he suffered psychologically. It is the Applicant's case that he was subjected to restraint and seclusion. At the very least, as a result of not coping, rather than provide him with the support he needed and that was articulated repeatedly to Marnebek staff, he was punished - kept in to do work, put in the courtyard if he didn't cooperate. A young child with multiple disabilities.

The distress that [HL] suffered, including self harming at the thought of going to school, having to be dragged out of the car into the school building and suffering such high anxiety that he could not learn was extremely serious.

[HL] could not comply with the requirements or conditions imposed upon him. He suffered what the Federal Court refers to as "serious disadvantage", not only because he failed to be provided with the opportunity to reach his potential in a number of academic and life areas, but due to the extreme psychological stress he was placed under.

This case is against the State of Victoria. An examination of the budget for Marnebek is not required and nor has it been offered by the Respondents.

1. Consistent with all three adjustments, the period covered by the allegation of a failure to provide this reasonable adjustment is from 1 August 2011 to May 2012.
2. On balance, I am persuaded that this adjustment would have been, in all the circumstances, unreasonable. The matters that tipped the balance were contained in the evidence of Ms Dauncey and Mr Tainsh. Although the applicant disputed much of Ms Dauncey's evidence (and it is fair to say I infer she felt considerable antipathy towards the principal), Ms Dauncey presented as an articulate and concerned witness.
3. The first of these matters is that the school caters exclusively for students with disabilities. The school is relatively small with around 300 students. Each student has either a mild disability or a moderate to profound disability; each of those students is taught the curriculum having regard to the specific needs identified in the student's individual learning plan, such plans being regularly reviewed and discussed between parents and teachers. This existence of such plans and appropriate consultation is of course disputed by the applicant, but I have no reason to doubt the evidence of Ms Dauncey in this regard supported as it was by many of her staff members.
4. The second relates to financial and consequential matters. I doubt that the provision of one dedicated aide would have had budgetary consequences for the school. What did trouble Ms Dauncey was the premise that HL required a dedicated aide to assist with his fine motor skills, safety, to monitor and address his challenging behaviours, to undertake speech/ communication recommendations as directed and to assist his learning. Her evidence was that a high proportion of students at the school experienced the very same difficulties particularly in their early years. She told the Tribunal that "if it were thought that [he] required a one-to-one aide because of these difficulties, many other students at Marnebek would also be thought to have required (and continue to require) a one-to-one aide".[76]
5. She also explained to the Tribunal the distribution of PSD funds to a range of specialist allied health and other workers during the 10 month period (see paragraph 102). The ability to provide such assistance was clearly a matter of some considerable concern to her in the event available funding were to be eroded by the provision of more dedicated aides. Of course, this view is hypothetical but it strikes me it is a very likely consequence if one student out of a cohort of similarly afflicted students is provided with dedicated assistance. She also expressed the view that providing one-to-one aides to many students would leave her with insufficient funding to satisfy the present allocation to specialist allied health workers (see paragraph 121) whose presence was vital. That clearly would be detrimental as they provide essential services to the students. Insofar as she suggested that students with aides would be deprived of the benefits of group learning, I do not take the applicant to be suggesting that the aide would work anywhere other than in the classroom. But of course, that would produce its own set of problems.
6. Mr Tainsh gave evidence of the consequences he foreshadowed were likely to result. I accept his evidence. Indeed insofar as his evidence was challenged it was not to do with funding but with unrelated matters of restraint and seclusion and matters of policy. The thrust of what concerned him was:
   • There are approximately 30 dual mode schools and 20 specialist development schools in the Victorian government system.[77]
   • Therefore there are approximately 50 specialist schools within the system that could be required to provide students with full-time dedicated aides as a result of any decision that Marnebek was required to provide HL with a full-time dedicated aide.
   • Such a decision would have the capacity to threaten the ability of those 50 schools to continue to fund programs and services that are presently provide in the specialist school environment
7. The applicant contends that the need for a dedicated aide is confirmed in the reports referred to in paragraphs 122-124. Insofar as she relies on the reports of Misses Adler, McFadyen and Panagiotopoulos, these were made in 2008 and their value is diminished by their age. In 2011, Dr Smith expressed a concern for HL's safety in the absence of a dedicated aide but this was only in the context of providing support for funding home schooling.
8. I was not assisted by the applicant's contention that reports of HL's apparent performance at his new school (with a dedicated aide) constituted evidence that the adjustment would have been reasonable if implemented at Marnebek. That might be the parents' view but the Tribunal heard no evidence from the new school and in any event such comparisons might not have been possible for them to make. Likewise, the applicant's contention that the implementation of this adjustment in the relevant 10 month period would have produced a positive effect on HL's ability to learn and participate is not made out on the evidence. The applicant argued that HL's twin brother is similarly disabled but he would not require a dedicated aide. This, she submitted, put paid to the evidence of Mr Dainsh and Ms Dauncey about financial consequences. Clearly that is not so - there are 300+ students at the school most of whom are funded pursuant to PSD assessments (along with general funding not related to disability) and although Marnebek is not a private school, one cannot assume unlimited funding. To the extent that the applicant submitted that HL required a one-to-one dedicated aide:

to undertake speech/communication recommendations as directed, and

for the reasons set out herein I am not persuaded the adjustment sought for HL was reasonable. Likewise I am not persuaded that the absence of such an adjustment resulted in a failure by HL to derive any substantial benefit from the education program at Marnebek.

The second adjustment - the no formal communication method

1. In the claim of indirect discrimination, the respondents' response was that the "no formal communication plan" condition was not imposed. The applicant's submission that the respondents' failure to provide a formal communication method constituted a failure to make reasonable adjustments was met with parallel evidence.
2. The applicant contends that Ms Basterfield's evidence (set out below) about what should be included in such a plan should be accepted and she contends that the failure to provide such a comprehensive plan constitutes a failure on the part of the respondent to provide a reasonable adjustment that would enable HL to participate in and derive benefit from his educational program.
3. The respondent submitted that Ms Basterfield's recommendation might be viewed as the "gold standard" but which was not necessarily the only way to achieve HL's educational aims. As with the indirect claim, the respondent submits that the fact that the school took a different tack does not mean it represents a failure to make adjustments to suit HL. Leaving aside what weight one might put on the use of the word "formal" (a term not used in the legislation but adopted as a requirement by the applicant), the respondent clearly asserts there was a plan albeit not in the form or content contemplated by Ms Basterfield.
4. There was, in the respondent's submission, significant individualised engagement with HL in relation to his ability to communicate and a range of techniques were used to develop, assess and assist his ability to communicate, including his ability to communicate verbally. The respondent's communication method was said to include the following elements:
   • In the second half of 2011 and in term one of 2012 HL participated in regular sessions with Sarah Gracie, a speech pathologist at Marnebek who graduated in 2010. Some of the sessions were one-on-one.[78]
   • Ms Gracie had completed training in the Picture Exchange Communication System.[79] It is a well regarded method of assisting children with communication difficulties to communicate; it encourages and develops communication skills including verbal communication skills.[80]
   • During the period when the applicant consented to the use of PECS [81] Ms Gracie worked with HL to progress him through the six phases of the PECS system.[82]
   • With Ms Gracie's assistance, HL's teachers and aides also used aspects of PECS to assist him with his communication**.** They also used a variety of other visual strategies and actively monitored his progress with speech and communication and recorded his progress in documents such as her progress notes and HL's individual learning plans.
5. Ms Basterfield is a consultant speech pathologist with experience in complex communication needs. Ms Basterfield met with HL on one occasion on 13 November 2013 and made two written statements.[83] The thrust of her evidence is summarised as follows:
   • It is important that children with language impairments "more than two standard deviations from the mean" be provided with a formal communication program.
   • There are important components of a formal communication program. As HL has significant delay in his language and communication development, the identification of both short and long term goals is critical. Consistent long term strategies are needed, short and long term goals need to be written with measurable outcomes, a formal review of all goals should occur regularly, clear documentation is critical and liaison should continue with all parties including family members, carers, therapy professionals and teaching and medical staff.
   • She perused a series of documents provided to her by the advocate and stated that in her expert opinion, "each of the documents had some parts which reflect a formal communication programme, however, none of them, at the time of their implementation, would constitute a complete formal Speech Pathology communication or language program that has been devised individually for HL".[84]
   • She commented unfavourably on the available PECS documentation, on the learning plan, and on the teaching strategy, she was not persuaded that HL had a "personalised communication and language program", and set out her view of what a language and communication plan ought to contain. In relation to such a plan she concluded that none of the items noted in the speech pathology or school files "suggested a personalised communication and language program" had been developed.
6. Ms Basterfield's evidence appeared to be critical of the adequacy of the recording of the communication method used with HL and to the extent that it does, the Tribunal rejects the criticism. As counsel for the respondent put it, the question to be answered is whether HL was required meaningfully to participate in his education without a formal communication method (the adjustment), not whether the school has met standards of perfection in its record keeping.
7. The applicant's advocate submitted that no formal speech pathology assessment had occurred since HL left Monash Special Development School (which I observe was some time in 2008) and that the evidence of Ms Basterfield was that HL required a formal communication method and that there was not one in place.
8. Whilst there may not be a document that would satisfy Ms Basterfield's standards of what would constitute a formal plan there is plenty of evidence that speech pathology and communication strategies were not ignored by the school although when speaking of PECS, it is clear the opposing parties have a different idea of what is meant by the term.
9. Ms Joanne Flight leads the allied health team at Marnebek and has done so since April 2010. She stated that she had little involvement with HL and his brother because the applicant had a number of private providers but she gave evidence that HL had the benefit of a number of health services during his enrolment and in particular she noted the involvement of speech pathologist Sarah Gracie. She stated that as part of Ms Gracie's involvement with HL she was aware that HL would have been receiving a whole-class approach focussing on the use of the PECS system for both verbal and non-verbal children.
10. Ms Gracie started classroom visits at Marnebek around June 2011. At that time she was assigned different class groups where she met and assessed the needs of the children and their teachers. Her evidence was that HL had been indentified as someone who would benefit from her assistance and at the commencement of her involvement she understood that the applicant was happy for her to use the PECS system. She detailed her regular scheduled sessions as follows:

They were held either in the classroom, so that his teacher could attend to assist with continuity of approach, or in my designated area in the school. I kept notes of my attendances with HL so that I would have the ability to track his progress. Those notes make clear that we had a regular weekly session booked. I recorded the times when that session could not occur because of illness or excursion.[85]

1. Her notes indicated there was some difficulty with attendance and she recorded the following:

13 sessions were scheduled in 2011, six of which did not occur by reason of excursions, illness or professional development.

Weekly sessions occurred in 2012 from 21 February 2012 until 24 April 2012. Sessions paused at that time as I had agreed with [the applicant] to conduct a session with her in the second week of term 2 in 2012, so that she could decide if she was comfortable with PECS from that time. [She] did not attend the session that was scheduled.

1. Evidence was given that HL was frequently absent from school during the relevant period.
2. In her written statement Ms Gracie set out her communication with the applicant in the following three paragraphs:[86]

In 2012 [the applicant] raised some concerns about the use of PECS. I therefore met with her on 27 March 2012 in which we discussed a number of matters including:

I recall that I explained to [her] that while she may be able to understand HL's attempts at communication (by being familiar with his response to particular stimuli/words that he may use for particular things) it is important to keep in mind that communication partners who are not as familiar with [him] may not be as able to interpret these attempts. An augmentative communication aid (e.g. PECS) was therefore being suggested to assist [him] in being able to successfully communicate with a wide range of communication partners within a range of different environments (e.g. home, school and community). I explained that PECS was not to replace verbal communication, but to augment it. [She] explained that she used some visual aids or cues at home to assist [him] to communicate requests. I wanted to be flexible and, to ensure consistency between strategies at school and home, I agreed to assist his teacher to use similar strategies in the classroom as were used at home. [The applicant] and I agreed that PECS would continue to be available if required.

At the end of our meeting, we arranged a time being the 9.30am session in week two of the next term for [the applicant] to attend a speech pathology session to view the use of PECS. [She] did not attend the PECS session with me. I paused the continued implementation of PECS on 24 April and 1 May 2012 while I was waiting for [her] to attend as we had discussed. I later learned that [HL] had been withdrawn from Marnebek.

1. She referred to the report provided by Ms Basterfield and made the following comments in the light of her contact with HL and her overall observations at the school. Those observations, which I accept, included the following:[87]

There was a plan in place to assist with the development of HL's communication skills. This included PECS, a well respected communications program;

There were clear strategies for assisting children with his needs. These included one on one sessions with her, teacher liaison and the implementation of augmentative communication aids in a coordinated manner;

There were measurable outcomes being monitored against set goals. For example, that he would be able to use PECS to request items using sentences containing subject, verb, adjective and object, 80% of the time during speech pathology sessions with minimal prompting.

In addition she kept notes (exhibited to the Tribunal) that enabled her to pass her observations on to HL's other teachers.

1. Counsel for the respondents made the following observations about Ms Basterfield's evidence:

She had not worked in a special school environment for students with autism and intellectual disabilities for many years.

She had not attended the school. Nor had she discussed communication strategies with any of the staff.

She had not observed the use of PECS cards or considered the PECS folder used in 2011 and indeed observed any of the interactions between Ms Gracie and HL.

She had only met with HL once in November 2013 and furthermore, most of the documents submitted to her for the purposes of her opinion were documents covering the period of 2006 to 2008.

1. The applicant placed great reliance on the evidence of Ms Basterfield in support of her claim for this adjustment. She submitted that Ms Basterfield's evidence should be accepted and that the failure of the respondent to provide a plan such as that outlined by Ms Basterfield constituted a failure to make a reasonable adjustment that would have enabled HL to participate in and derive benefit from his educational program. I do not accept that submission.
2. Ms Basterfield was not called as an expert and in any event she did not have the benefit of observing HL in his school setting, nor did she have the benefit of any discussion with Marnebek staff.
3. Furthermore, Ms Basterfield did conclude, from a perusal of documents supplied to her by the applicant, that some of them "had parts reflective of a formal communication program" but in her view none of them constituted a formal plan individually designed for HL.
4. Whilst the respondent's "plan" did not meet with Ms Basterfield's exacting standards for what she considered constituted a proper "formal" plan, I accept the evidence of Ms Gracie (see para 146-150) and Ms Flight (para 145) about what was in place. In particular, Ms Gracie's evidence was that there was significant individualised engagement with HL in relation to his ability to communicate and there were a range of techniques used by the school to develop, assess and assist his ability to communicate. It follows that I also accept the submissions put forward by the respondent in relation to Ms Gracie's involvement as set out in paragraph 140.
5. To the extent that the applicant submitted that HL required an "alternative effective communication method" to enable him to communicate his wants and needs to third parties, the evidence does not support a finding that Ms Basterfeld's recommendations would have been preferable to the coordinated approach taken by the school or that the implementation of the more elaborate plan would have produced a better outcome.

1. The respondent accepts that HL was required to participate in his education without the use of a personalised token board every three to five minutes throughout the day. However, the respondent submits conversely that "it was not the case that staff did not ever use a personalised token board with HL, nor that they did not use other token boards, reward systems, or other positive motivators to assist him to meaningfully participate in his education".
2. Ms Lauren Wood gave evidence in relation to the 2011 year (from 1 August onwards). She commenced teaching at Marnebek in week four of term one of 2011. These days she teaches at the Northern School of Autism and has done so since 2012. She told the Tribunal, inter alia, that a two-way token board was used particularly during assembly and this was set out as a strategy in HL's behaviour support plans. In emails exhibited to her statement she indicated that although she had included it in the strategies in use, it was used mainly when she left the classroom, e.g. in assembly. In correspondence between her and Ms McCarthy she stressed that it was difficult to use the board with the frequency suggested by HL's mother as it created a demand for constant attention and rewards. This was described as a "need for immediate gratification which created more challenging behaviours".[88]
3. In response to questioning about the frequency of use of the token board in the classroom she said that she used it when possible, "mainly during small group sessions or when [she] was working with HL in a one-to-one situation".[89]
4. Ms Wood confirmed that at times she moved the token board to her own desk in order to achieve better control - HL tended to move the tokens himself. It was put to her that HL did not receive his tokens very often but this she denied stating that he often received his rewards and this occurred when there were five tokens on the two-way board.[90]
5. Ms Wood confirmed that there was an additional reward system which she explained as one where "if he sat through assembly he could have 5-10 minutes on the computer, or could have a jelly bean. He had things, such as computer time and puzzles which he would enjoy doing and which we could use as direct rewards for good behaviour".[91]
6. During HL's attendance at Marnebek in the 2012 year, Ms Christine Walker taught an "early years class" which included HL. She had a full time aide (Ms Carlee Brown) although the first two aides assigned to her class did not continue past week three of the term. She confirmed that she used a reward token board.
7. Ms Walker communicated with Ms Atkin after the latter's visit in February 2012 and she was cross-examined about the contents of Ms Atkin's email to her dated 23 March 2012, the emphasis in questioning being that she had failed to take up Ms Atkin's suggestions. Ms Atkin's email contained the following suggestion:

[HL] will need frequent reinforcement throughout the day to increase his motivation to attend to tasks - he is very distracted and I believe that frequent reinforcement would help with this - he should go through each token board around in 5-10 minutes (sic) (as I demonstrated at assembly time) and receive a motivating item - I do not think lollies or stickers will be powerful enough for [him]- it would need to be computer or ipad time to be really powerful... With assembly he will need constant support with rewards. Again getting them about every 3-5 minutes.[92]

1. These observations were put to Ms Walker who confirmed that a two-way token board had been in use prior to Ms Atkin's visit but it was not of the type recommended by Ms Atkin. Further, she agreed she was using the one reward system for the whole class. As I understand her evidence, following Ms Atkin's visit they used an extended board with one to ten tokens on each side of the board and I understand this to have been in response to Ms Atkin's recommendations.[93]
2. In relation to the use of token boards in assemblies in particular, Ms Walker recorded in her statement that Ms Atkin had attended assembly and had suggested the use of the two-way token system with green and red faces. She suggested HL should receive "a green token for being good and a red token when not acting in accordance with instructions". Ms Walker stated that "the two way token system required 1:1 assistance and constant provision of tokens. The use of the two way system at such short intervals was not practicable due to the need to ensure all students were provided with attention, but I certainly tried to use rewards to motivate HL in assembly".[94]
3. The only relevance of the "behaviour support plan" is its reference to the personalised token board, and the frequency of its use. Although the applicant's initial particulars set out the need for specialist professional oversight of a positive behaviour plan and detailed a range of "best practice guidelines" as well as describing the style and content of such a plan, the thrust of this allegation was clarified by the applicant's advocate at the commencement of this proceeding. Pursuant to that clarification the allegation is that the State failed to make a reasonable adjustment in order to permit HL to derive substantial benefit from his education at Marnebek, and that adjustment was the frequent use of a personalised token board. By way of clarification the applicant's advocate further posited that "a positive behaviour plan should have been written with the strategy to address the behaviours being the use of the two-way token board every three to five minutes".
4. The respondent's position is that there were multiple positive motivators being used to assist HL in the classroom and which allowed him to derive substantial benefit from the educational program at the school.
5. Ms Wood (who worked at Marnebek in 2011) attached to her written statement behaviour support plans for May and November 2011. She did not communicate with the applicant about either of these plans. Both plans referred to the two-way token board as a strategy to be implemented in relation to certain "triggers" and "observable behaviours". Ms Wood was questioned about the regularity of use of the token board and responded to a question from the advocate as follows:

I used it at different times during the day. At times I found that [HL] would become quite anxious or upset when tokens were placed on the sad face and it would actually cause sometimes his behaviour to escalate, so at times I found that using the positive, like computer stars or other motivators, were more beneficial for him within a whole classroom setting, especially working with other children in the classroom.[95]

1. She agreed she was not using it every two to three minutes or every five to ten minutes and she agreed she had not used a token board early on. She confirmed that she used it in assembly and confirmed that frequency of use was easier when working in small groups. If the particular activity involved the whole class with seven other children, the frequency of use would be diminished.
2. The use of the token board in assembly was confirmed by Ms Boak, an educational support person who attended assembly with Ms Wood.
3. Ms Walker, who taught HL in 2012, reviewed the 2011 behaviour support plans in February 2012. She told the Tribunal she made few changes because many of the techniques remained appropriate. The particular strategy outlined in that plan was as follows:

Use of two way token behaviour board to remind [HL] of the rewards and consequences of his behaviours (especially when leaving the classroom).

Use of praise and computer time as a reward for positive behaviours.

Use of two way token board during specific activities.

1. Ms Walker was cross-examined about the use of a token board and about the visit to the school by Ms Atkin. She confirmed that in mid-March and subsequent to Ms Atkin's visit, she used a board with ten tokens. Prior to that she used a reward token board with fewer tokens as an incentive to maintain his participation and focus his attention on learning
2. However, she told the Tribunal that the use of the two-way system required 1:1 assistance with the constant provision of tokens and so it was not always practicable. She said that she tried to use rewards during assembly.
3. So, did the respondent's alleged failure to implement this particular adjustment mean HL could not participate in or continue to participate in or derive or continue to derive any substantial benefit from is educational program at Marnebek? And, in all the circumstances was the adjustment reasonable?
4. The respondent at all times used a token board, but only after March 2012 did the larger board come into use. The evidence is that it was used in the classroom and in assembly (when he was able to attend assembly) but it is clear it was not used with the frequency sought in the allegation.
5. Certainly, the use of the board every 3-5 minutes could not be achieved in the classroom setting and both Ms Wood and Ms Walker conceded this. This is a matter of practicality. To do so with the frequency suggested would be distracting for others and would mean other students would not be given appropriate attention. Ms Wood's evidence (which I accept) that frequency of use created a demand for immediate gratification which in turn gave rise to more challenging behaviour is another relevant factor.
6. Ms Atkin's success with this method in the home, does not necessarily translate to equivalent success in the classroom and she agreed this was so. Ms Atkin's sessions in the home occupied an hour only as distinct from that of a complete school day. She agreed there were other ways of rewarding positive behaviour apart from token boards [96] but she said that she had suggested the token board because "that was a way that had been incredibly effective at home so I thought it would be a way that would be very effective at school as well".
7. In terms of the matters to be considered under s 40(3) I am unable to conclude what effect this adjustment would have had on learning outcomes or on [HL's] ability to participate in particular courses or programs ought. To attempt to do so would be speculative. The bulk of the matters required by s 40(3) have been covered by evidence but what tips the balance is, in the main, the inability to be satisfied as to any positive effect on learning or other outcomes were the condition to be introduced, along with classroom disruption were the board to be utilised every 3-5 minutes.
8. In coming to this conclusion I have accepted the evidence of the principal that the classroom teachers employed a variety of strategies to assist in HL's education and that the teachers employed a range of rewards and motivators to counter what were referred to as HL's "challenging behaviours". There is no evidence to support the thesis that any one strategy worked well to the exclusion of others. What worked for Ms Atkin in her hourly sessions in the home might not necessarily translate to the classroom where other children are present and other distractions exist. I accept the evidence of Misses Wood and Walker that to implement this requirement would result in considerable disruption in the classroom to the detriment of other students.
9. Taking all these matters into account I have concluded the particular adjustment sought was not reasonable and the failure to implement it in its entirety (accepting that they changed token boards in 2012) has not resulted in a failure of HL to derive any substantial benefit from the education program at Marnebek.

1. The applicant seeks a declaration that both respondents have breached the Charter. The allegation relates to conduct in breach of ss 8(2), 10(b), 12, 17(2) and 21.
2. She alleges that the respondents failed properly to consider HL's human rights in breach of s 38 of the Charter. In doing so, she alleges they unreasonably limited the following rights:[97]

The right in ss 8(2) - freedom from discrimination.

The right in ss 10(b) - freedom from cruel, inhuman or degrading treatment.

The right in s 12 - freedom of movement.

The right in s 17(2) - protection of a child in their best interests.

The right in s 21 - right to liberty and security.

1. In particularising the claim, the applicant has alleged the use of physical force, restraint, isolation and seclusion. Details are:

HL was physically restrained almost every Friday morning at assembly.

He was subjected to mechanical restraint through the use of a wrist strap to lead him around.

He was locked in the sensory garden during 2011 in order to control his behaviour.

He was locked out of the classroom and made to stay in the courtyard on occasions throughout 2011.

1. As I understand the allegation, it is that, by engaging in the above conduct, the State of Victoria and Ms Dauncey have contravened s 38(1) of the Charter which provides:

Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

1. The respondent's counsel submitted that Ms Dauncey was not a "public authority" within the meaning of the Charter and for that reason was not subject to s 38 of the Charter as an individual and thus beyond the Tribunal's reach.
2. "Public authority" is defined in s 4 of the Charter to be, inter alia, a "public official within the meaning of the Public Administration Act 2004".
3. The Public Administration Act 2004 defines a "public official" to include "a public sector employee" and it strikes me that Ms Dauncey falls squarely within the definition. The terms of that particular Act were not specifically articulated during the hearing but, given the definitions in the Public Administration Act 2004 it seems unlikely that a teacher with Ms Dauncey's history would not be a "public sector employee" unless she were a party to some contrary contract. I infer from the available evidence that the school itself is not a private school, it is within the cohort of Victorian Government schools. However, for reasons that will become apparent, whether or not she is a "public authority" will not matter.
4. The Charter does not create a cause of action for breach and this Tribunal does not have a general power to review the lawfulness of a public authority's actions under s 38 of the Charter. That was made clear in Sudi's case.[98]
5. Coincidentally, in Sudi's case[99] Weinberg JA also expressed his opinion that:

...s 39(1) cannot be invoked as the source of VCAT's power to engage in collateral review on Charter grounds. There are two reasons for this. First, as is plain, the section does not confer upon VCAT any power of judicial review. Secondly, the section does not expand any power of collateral review that VCAT might have under ordinary common law principles. ...

Indeed, it can be argued that the legislative intention disclosed by s 39 is that Charter unlawfulness can be relied upon as a ground in - and only in - a proceeding the object if which is to seek "relief or remedy in respect of an act or decision of a public authority on the ground that...[it] was unlawful. That would by definition, confine such relief to a direct challenge before VCAT, and would exclude any possibility of collateral review.

1. What s 39(1) provides is as follows:

If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.

1. Of particular relevance to this matter is the view of Maxwell P in Sudi where the President stated:

Plainly enough, s 39(1) has an operation which is both conditional and supplementary. The condition to be satisfied is that a person be able to seek, independently of the Charter, 'any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful'. If - but only if - the conditions is satisfied, then s 39(1) enables that person to seek 'that relief or remedy' on a supplementary ground of unlawfulness, that is, unlawfulness arising because of the Charter.[100]

1. In PJB v Melbourne Health & Anor,[101] (a matter arising under the Guardianship and Administration Act 1986) Bell J described the operation of s 39(1) as follows:

To apply s 39(1) ... it is necessary to ask whether the appellant, in the appeal, 'may seek any relief or remedy in respect of an act or decision of a public authority on the ground that that the act or decision was unlawful.' If the answer to that question is positive, then 'that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter'.

1. Since Sudi's case there have been other cases arising in a discrimination setting.
2. In Kuyken v Lay,[102] VCAT considered the circumstances in which Charter jurisdiction would be enlivened in the context of a discrimination claim brought under the 2010 Act. In that case, compliance with the Charter was in issue before the Tribunal because the conduct that was said to breach the Charter was the same conduct that was said to be discriminatory, namely a decision by Victoria Police to introduce and enforce a new grooming standard.[103]
3. Member Grainger cited in support the passages from the judgment of Weinberg JA in Sudi which are set out at paragraph 189.
   1. The upshot of Kuyken's case was that the Tribunal proceeded to deal with the allegations of breach of the Charter because the decision that was said to breach the Charter was the subject of a direct challenge in the proceeding brought before it under the 2010 Act.
   2. A similar issue was considered by Senior Member Nihill (as she then was) in Slattery v Manningham City Council.[104] Mr Slattery had been prohibited from attending any building that was owned, occupied and managed by the council.
   3. After a consideration of relevant case law including Sudi, the senior member concluded:

In this case, the lawfulness of the decision of the Council to maintain the ban is before the Tribunal. The Tribunal is directly dealing with the question of whether or not that act or decision is lawful, or in breach of the Equal Opportunity Act 2010.

1. The applicant in this case has not challenged the lawfulness of the alleged physical force, restraint or isolation. The respondents submit that:

...the Applicant has not challenged the lawfulness of the alleged "physical force/restraint" or "isolation and seclusion" under either the 1995 Act or the 2010 Act. Instead, the Applicant has chosen to challenge the lawfulness of the imposition of the Condition, i.e. the imposition of a requirement that the Applicant meaningfully access his education without a full-time dedicated aide, a formal communication method and frequent use of a personalised token board.

The applicant has not challenged the lawfulness of any of the following on a ground other than the Charter:

(2) the alleged use of a basket hold on [him] during assemblies;

(3) the alleged locking of [him] in a courtyard; or

(4) the alleged locking of [him] in the sensory garden.

The Applicant's case appears to be that these things occurred as a result of the action that is said to be unlawful, namely the imposition of the Condition. The question of whether each of the alleged forms of "physical force/restraint" or "isolation and seclusion" occurred subsequent the imposition of the Condition is not a question that requires (or permits) the Tribunal to consider the lawfulness of the "physical force/restraint" or "isolation and seclusion".

As a result, the Applicant cannot seek a declaration under s 39 of the Charter. There is no other available remedy or outcome under the Charter. The allegations of "breach" of the Charter must be dismissed for want of jurisdiction.

1. The Commission has taken a different view about the interpretation of s 39 of the Charter. The applicant concurs and adopts the Commission's submissions. The thrust of the submission commences with the following summary:

The respondents argue that section 39 must be interpreted so that once an applicant identifies a specific act or decision of a public authority that it is challenging as unlawful on the basis of a ground other than the Charter, it is only open for them to challenge the exact same act or decision as unlawful on the basis of the Charter. The Respondents submit that in these proceedings, the alleged restraint and seclusion have not been challenged as unlawful on a ground other than the Charter, and therefore the Tribunal has no jurisdiction to hear and determine the Applicant's Charter claim that there has been a breach of section 38 of the Charter.

1. The Commission submits that the respondents' interpretation should be rejected for the following reasons. First, there is no limitation in s 39 that a person may only seek relief or remedy under the Charter in respect of the same act or decision of a public authority as their substantive claim of unlawfulness. Rather, the Commission contends that the focus is on the ability to seek relief and remedy which should be interpreted as a requirement that the applicant have an existing proceeding on foot against the relevant public authority challenging their conduct as unlawful.
2. Second, the Commission considers that, to imply a condition that the specific action or decision that founds the non-Charter ground needs to be identical to the act or decision that is unlawful under the Charter, would be perverse. This is because it would condition the availability of relief in respect of unlawfulness under the Charter on whether or not that identical act or decision is unlawful for other reasons. On this approach, it contends, the availability of relief in respect of breaches of the Charter would become not only arbitrary, but also wholly useless as the act or decision in question could be remedied using the pre-existing regime.
3. The Commission submits that the Explanatory Memorandum to the Charter[105] supports its interpretation and quoted the following paragraph by way of authority for the premise that the conduct of a public authority that is unlawful for a non-Charter reason need not be the same as the conduct that is unlawful under the Charter:

[I]f a person has a right to seek relief or remedy otherwise than because of this Charter, founded on the unlawfulness of some conduct by a public authority, then any unlawfulness generated by this Charter (as set out in clause 38) may be a further ground in the cause of action. (bold added, italics in original )

1. The respondents dispute this interpretation. They submit that the use of the singular "the" is instructive. There is only one "act or decision" that is put in issue by a non-Charter cause of action. Once invoked, the Charter may add a ground in relation to that "act or decision". Further, they say that the second reading speech for the Bill that became the Charter makes clear that parliament intended that "there should be no new causes of action in respect of breaches of human rights".[106]
2. They submit that the approach adopted by the Commission would result in a significant limitation to the effectiveness of the Charter remedy provisions. The Commission says that the focus of s 39(1) is on the ability to seek relief or remedy in respect of an act or decision on the ground that decision was unlawful on a non-Charter ground. The respondents accept that, but what they do not accept is the further submission that this should be interpreted as requiring an applicant only to have a proceeding on foot against the relevant public authority challenging some aspect of the conduct as unlawful.
3. In commenting on the second reading speech, counsel for the respondents had this to say:

We also rely on [the second reading speech] which makes clear that parliament 'intended that there should be no new causes of action in respect of breaches of human rights', and we say our construction is consistent with this clear intention and if this, in the eyes of the Commission, constitutes a limitation to the effectiveness of the Charter remedies, then that is a problem for parliament, not for the parties to this proceeding. The language of 39(1) is clear and we reject the submission that we are importing any additional requirement into s. 39(1). We are reading it on its plain terms.

1. Since this matter was heard, the Supreme Court has brought down its decision in Goode v Common Equity Housing[107]. That decision renders impermissible the construction advanced by the Commission. In that case Mrs Goode was a tenant in a property owned by Common Equity Housing. She claimed she had been subjected to discrimination, both direct and indirect, by reason her of her age and disability and alleged that Common Equity had acted in a way that was incompatible with a range of her rights. Bell J traversed the available case law and the following two paragraphs set out his conclusion on the point being argued. His Honour stated:

Counsel for Common Equity and the Commission made competing submissions in relation to the operation of s 39(1) as regards the acts and decisions of public authorities. For Common Equity Housing, it was submitted that s 39(1), where it applied, only permitted relief or remedy on grounds of Charter unlawfulness to be granted in respect of the act or decision for which relief or remedy was sought on ground on non-Charter unlawfulness. In other words, the act or decision had to be the same. For the Commission, it was submitted that the focus in s 39(1) was on the relief or remedy, not the act or decision. Therefore, where s 39(1) applied, the relief or remedy available with respect to one act or decision could be sought with respect to another act or decision.

In my view, the submissions made for Common Equity Housing should be accepted. Section 39(1) was not intended to create a new cause of action based on Charter unlawfulness (however desirable that might have been). As the discussion in the authorities reveals, it was designed to enable a person to seek relief or remedy 'in respect of an act or decision of a public authority' on a ground of Charter unlawfulness where he or she has an independent entitlement to seek such relief or remedy on a ground of non-Charter unlawfulness. The words 'that relief or remedy' appearing late in the provision relate to the words 'any relief or remedy in respect of an act or decision of a public authority' appearing early in the provision. The relief or remedy that may be sought on a ground of Charter unlawfulness is the relief or remedy that may be sought in respect of the act or decision of a public authority on a ground on non-Charter unlawfulness. The provision was not designed to enable a person to seek relief or remedy on grounds of Charter unlawfulness with respect to acts or decisions not falling within the independent entitlement of the person to seek relief or remedy on grounds of non-Charter unlawfulness.[108]

1. For all intents and purposes, the matter has been settled by his Honour and the result is that this Tribunal does not have the necessary power to consider the applicant's Charter claims. True it is that a range of evidence was proffered about these matters but they were not the subject of the discrimination claim as alleged by the applicant.
2. Even if the Tribunal were able to consider the claim, I would have had difficulty upholding them on the basis of the evidence before me. Take, for example, the claim relating to the use of the wrist strap. Evidence was given about the existence of, and use of, one or possibly two wrist straps. The Tribunal heard evidence about the wrist straps from HL's parents, and from Pam Boak, Lauren Wood, Allicia Holdsworth, Charlize Pirie, Karen Dauncey and Chris Scandolera. From all of the evidence, disparate as it was, the only possible conclusion is that a wrist strap was used once or maybe twice in circumstances where there was a concern for HL's safety.

1. For the reasons set out herein, the application is dismissed in its entirety.

[1] Briginshaw v Briginshaw [1938]60 CLR 336 at 361-2 in relation to the possibility of negative findings being made against the second respondent thus endangering her reputation as a teacher.

[2] Equal Opportunity Act 2010 (Vic) s 40.

[3] The amendments in the 2010 Act provide that a respondent now has the burden of proving that a defence applies to a complaint of indirect discrimination.

[4] And, in the case of the school principal, allegations of authorising and assisting the alleged indirect discrimination contrary to s 105 of the EO Act 2010, and being vicariously liable under s 109 of the EO Act 2010 for the acts of five named teachers and aides at the school: Particulars of complaint CB16.

[5] This allegation applies to the period from 1 August 2011, the date upon which s 40(2) commenced operation.

[6] Particulars of complaint at [5] and [7.1] CB 16-17.

[7] Particulars of complaint at [5] and [7.1] CB 16-17.

[8] Particulars of complaint at [13.1]. CB 20.

[9] Particulars of complaint at [13.2], [13.2.1], and [13.2.2]. CB 20.

[10] Particulars of complaint at [13.3] as amended on the first day of hearing T7 L4-7] CB 20.

[11] Particulars of complaint at [16]-[21] CB 21-26.

[12] Particulars of complaint at [22]-[24] CB 27.

[13] Particulars of complaint at [25] CB 27.

[14] Particulars of complaint at [38.5] CB 38.

[15] The alleged use of a wrist strap and use of a basket hold during assemblies.

[16] The alleged locking of HL in the sensory garden and in a courtyard.

[17] An "attribute" is defined by s 4(1) of the 1995 Act to mean an attribute in s 6. The attribute identified includes "disability".

[18] An "educational institution" is defined in s 4(1) to mean a school, college, university or other institution at which education or training is provided.

[19] Particulars of Defence at [3(a)] CB 42.

[22] State of Victoria v Turner [2009] VSC 66; (2009) 23 VR 110 at [100(a)].

[23] State of Victoria v Turner [2009] VSC 66; (2009) 23 VR 110 at [100(b)].

[24] State of Victoria v Turner [2009] VSC 66; (2009) 23 VR 110 at [100(c)].

[25] State of Victoria v Turner [2009] VSC 66; (2009) 23 VR 110 at [100(d)]. Where the respondent has a policy or program to deal with the type of disadvantage alleged by the complainant, if the Tribunal decides that the policy is a logical and understandable response to that type of disadvantage, this is an important consideration on the question of whether the alleged discriminatory condition is not reasonable: [100(e)].

[26] State of Victoria v Turner [2009] VSC 66; (2009) 23 VR 110 at [100(f)].

[27] State of Victoria v Turner [2009] VSC 66; (2009) 23 VR 110 at [100(g)].

[28] See State of Victoria v Schou [2001] VSC 321; (2001) 3 VR 655 at [30]- [31]. This principle has been applied by the Federal Court in assessing the action of an educational institution alleged to have contravened the Disability Discrimination Act (Cth); see Catholic Education v Clarke [2004] FCAFC 197; (2004) 138 FCR 121 at [116].

[29] [2009] VSC 66; (2009) 23 VR 110 at [103]- [104] (Kyrou J).

[30] Pham v Drakopoulos & Ors [2012] VCAT 1198 at [19] (Coghlan DP).

[31] Lomax v National Australia Bank [2014] VCAT 348 at [45]- [46] (Member Dea).

[32] State of Victoria v Turner (2009) 23 VR 100 at [100].

[33] See, for example, Abela v State of Victoria [2013] FCA 832 at [103].

[34] Education and Training Reform Act 2006 (Vic) s 2.4.3(1).

[35] Education and Training Reform Act 2006 (Vic) s 2.4.3(2).

[37] See, for example Walker v State of Victoria [2011] FCA 258; (2011) 279 ALR 284 at para [194]; Abela v State of Victoria [2013] FCA 832 at [95]- [96].

[38] Beasley v State of Victoria [ 2006] VCAT 187 at [156] (DP McKenzie).

[39] Adopting and applying the approach in the Federal sphere as articulated in Kiefel v State of Victoria [2013] FCA 1398 at [208].

[40] Turner v State of Victoria [2009] VSC 66; (2009) 23 VR 110; Walker v State of Victoria [2011] FCA 258; (2011) 279 ALR 284, 323 [247]; Catholic Education Office v Clarke (2004) 138 FCR 562; Hurst v State of Queensland [2006] FCAFC 100; (2006) 151 FCR 562.

[41] Abela v State of Victoria [2013] FCA 832.

[42] [2013] FCA 832 at [85]. See also Kiefel v State of Victoria [2013] FCA 1398 at [212].

[43] [2013] FCA 832 at [86].

[44] See Travers v New South Wales [2001] FMCA 18; (2001) 163 FLR 99.

[45] See Minns v New South Wales [2002] FMCA 60.

[46] [2013] FCA 832 at [99].

[47] [2013] FCA 832 at [96].

[48] See Particulars of Complaiint at [16] CB21.

[49] Evidence of the applicant T253 L 17.

[50] Evidence of applicant T253 L 15-21. See also evidence of Ms Atkin who said that if HL was having a good day, he would not need rewards every three to five minutes (T297 L 27-30) and that the frequency of the rewards would depend on HL (T300 L 21).

[52] [2006] FCAFC 100; (2006) 151 FCR 562: see T29 L 27-31; T30 L 1-2.

[53] Applicant's first witness statement at [191]-[194] CB386.

[54] [1991] HCA 49; [1991] 173 CLR 349,392.

[55] [2000] VCAT 1850 [82], [91]-[107].

[56] Page 13-14 Explanatory Memorandum to 2010 Bill.

[57] Applicant's first witness statement [191]-[194] CB386.

[58] [1991] HCA 49.

[59] Hurst v Queensland [2006] FCAFC 100; (2006) 151 FCR 562 at [96].

[61] [2012] FCAFC 38.

[62] [2006] VCAT 187 (DP McKenzie).

[63] [2008] VSC 197 at [16].

[64] AB v Ballarat Christian College [2013] VCAT 1790 [170]-[173].

[65] Tainsh statement [34] to [36] CB 1536.

[66] First Dauncey statement [12] CB1298; Second Dauncey statement [16], CB 1449.

[67] [2003] FCA 1085 [50, 51].

[68] (2001) 3 VR 663 [30].

[69] Explanatory Memorandum to 2010 Act, cl 40.

[70] Wood statement at [11] CB 1323.

[71] Second Dauncey statement at [11]-[14] CB 1448.

[72] Principal Commission submissions at [87] CB 75.

[73] [2013] VCAT 1790 at [180]- [182].

[74] Second Dauncey statement at [11]-[14] CB 1448.

[75] Atkin first statement [8] CB252.

[76] Dauncey second statement [22] CB 1450.

[77] Tainsh statement [21] and [22] CB 1534.

[78] Gracie statement at CB 1417 [12]-[14]; evidence at T 766-767.

[80] Gracie statement gives overview at CB 1416-7 [67]

[81] See applicant's attitude to the use of PECS in Ms Gracie's progress notes in Ex SLG-1, CB 1422- 1427.

[83] Basterfield statements CB 97 and 1026.

[84] Basterfield second report CB 1036.

[85] Gracie statement [14] CB 1417.

[88] Exhibit LW-1 to Ms Wood's statement - BSP May and November 2011.

[91] Wood statement CB 1323 at [10(b)].

[92] Exhibit MA6 to Atkin statement CB 280.

[94] Wood statement CB 1372 [30].

[97] Amended particulars of complaint CB 38-41.

[98] Director of Housing v Sudi [2011] VSCA 266; [2011] 33 VR 559 at [15-21] and [48] (Warren CJ).

[99] Director of Housing v Sudi [2011] at [282] (Weinberg JA).

[100] Director of Housing v Sudi [2011] a t [96] (Maxwell P).

[101] [2011] VSC 327 [296].

[102] [2013] VCAT 1972.

[103] [2013] VCAT 1972 at [194] (Member Grainger).

[104] [2013] VCAT 1869 AT [149]- [160].

[105] Explanatory Memorandum to the Charter Bill (16 June 2006)

[106] Hulls R, Second Reading Speech 4 May 2006, page 1294.

[107] [2014] VSC 585.

[108] [2014] VSC 585 at [44]- [45]