11, 12, 13, 17, 18, 19, 20, 21, 24, 25, 26 & 27 November 2003 & 3 December 2003

[2004] VCAT 128

Pursuant to section 136 of the Equal Opportunity Act 1995 (Vic) this Tribunal orders-

1. That, this Tribunal having found the Complaint not proven, the Complaint is dismissed.

2. Costs of the parties are reserved. The parties have liberty to apply for those costs. Those applications must be made on or before 11 February 2004.

1 I had reserved my decision and I am now in a position to hand it down. My decision is that I find the complaint not proven, and I therefore dismiss the complaint. I now give my reasons.

2 In August 2003 Ben Zygorodimos, whom I call Ben in these reasons, who at the time was nine years old, lodged by his next friend, his mother Denise Zygorodimos, a complaint with the Equal Opportunity Commission ('the Commission') under the Equal Opportunity Act 1995 (Vic) ('the Equal Opportunity Act'). The complainant claimed impairment discrimination against the State of Victoria, in its capacity as the educational authority, under the name of the Department of Education and Training administering the school known as the Victorian College for the Deaf. I call the respondent, in these reasons, 'VCD'.

3 At the complainant's request, the Commission determined that the complaint was an expedited complaint. The complainant then applied to this Tribunal, under s.124 of the Equal Opportunity Act to have the complaint referred to the Tribunal without going to conciliation. At the hearing of the complaint, the parties clarified that they had consented to this application being granted, and that in September 2003 this Tribunal, in fact, made directions, to prepare the matter for hearing.

4 In the course of the procedural steps which led to the hearing of this complaint, amended particulars of complaint and defence have been filed and served. The hearing was lengthy. There were more than 20 witnesses who gave oral evidence and there were some witnesses whose evidence was accepted on witness statement without the need to call the witnesses for cross-examination. In all other cases I have both oral evidence and witness statements from witnesses. A substantial number of documents were tendered in evidence as exhibits. I should say that I have been greatly assisted by extensive submissions from the counsel for the parties, both as to the evidence and to the law.

5 In brief, the complaint's claim as refined by the amended particulars of complaint and the submissions made at the hearing, is that VCD has directly and indirectly discriminated against Ben in breath of the Equal Opportunity Act by denying or limiting Ben's access to education while he was, and remains, a VCD student. The breach is alleged to be a breach of s.37(2)(a) of that Act. The claims involve two main issues. The first is the way in which Ben was taught. The second is the way in which Ben's behaviour was dealt with by VCD. A major part of this second claim concerns Ben's transfer from one class to another, in August 2003.

6 VCD, in its primary submission, denies discrimination and breach of the Equal Opportunity Act. As a secondary, and alternative, submission and assuming that I found it would otherwise have breached that Act, it relies on the exceptions provisions in s.80 and s.82. I have concluded that VCD did not breach s.37(2)(a) of the Act by discriminating against Ben. Accordingly, it is unnecessary for me to consider the exceptions in s.80 and s.82, on which VCD, in the alternative, relied.

7 To put this matter in context, I first make some general observations about the law. I then make findings of fact, taking each of the issues I have mentioned, in turn. I then come to the application of the Equal Opportunity Act to that evidence and consider in more detail the parties submissions about how the Act applies. Finally, I make some concluding comments. I first deal with the law.

8 As I have said, the complainant relies on breach of s.37(2)(a) of the Equal Opportunity Act. This provides-

(2) An educational authority must not discriminate against a student--

(a) by denying or limiting access to any benefit provided by the authority....

the person or body administering an educational institution.

10 'Educational institution' relevantly means 'a school'.

11 It is clear from s.7(1) that discrimination means both direct and indirect discrimination on the basis of an attribute. It is clear from s.7(2) that discrimination includes discrimination on the basis of an attribute which the person has or had at any time, whether or not at the time of the discrimination. Section 8 defines direct discrimination. Under that section, direct discrimination relevantly occurs, for the purposes of this case, if a person treats someone with an attribute less favourably than the person treats or would treat someone without that attribute, or with a different attribute in the same, or similar circumstances (See s.8(1)).

12 The effect of s.8(2) is that it is irrelevant whether the alleged discriminator was aware of the discrimination or considered the treatment less favourable, and whether or the attribute is the only or dominant reason for the treatment, as long as it is a substantial reason for the treatment.

13 Section 9 defines indirect discrimination. It relevantly provides-

(1) Indirect discrimination occurs if a person imposes ... 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; and

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

14 The effect of s.9(3) is that it is irrelevant whether or not the alleged discriminator is aware of the discrimination. The effect of s.10 is that the motive of a person who directly or indirectly discriminates is irrelevant.

15 The attributes on the basis of which the Act prohibits discrimination are listed in s.6. They include impairment. Impairment is relevantly defined in s.4 to mean '(a) total or partial loss of a bodily function' and '(d) malfunction of a part of the body'.

16 The authorities show that the burden of proof in a claim under the Equal Opportunity Act is on the complainant, and that the relevant standard of proof is the balance of probabilities.

18 I first make some general comments about the evidence. I then set out some matters of background. I then come to the two main issues involved in this case. I first make some general comments. In my view, all those who gave evidence were, generally speaking, witnesses of truth. Sometimes different witnesses gave different versions of the same incident, but they did not, in my view, deliberately lie. The differences were due more to differences of focus, or emphasis. In the few cases where there is direct inconsistency between the evidence of witnesses, I have explained, in each case, why I prefer one witness to another.

19 I have before me evidence from Ben's parents, from Ben's treating team, that is his neurologist, his psychiatrist, his audiologist, his occupational therapist, and his speech pathologist; from VCD - that is from its principal, vice-principal and from Ben's teachers; and other general expert evidence from various educational experts, including the principals of two other schools, and also evidence on particular issues from a number of other witnesses. I also have a substantial number of documents.

20 Most importantly I have the communication books for 2001 to 2003 ending with the book that ends with October 2003. These books constitute an important contemporaneous record of written communications between Ben's teachers, primarily, but not exclusively, his class teachers, and Ben's parents, primarily his mother. In these reasons, I call these books 'the communication books'. I also have, as I said, a number of other documents relating to a number of particular issues. First I deal with matters of background.

21 VCD is a school for deaf and hearing impaired children, operated by the State, through its Department of Education and Training. It is located in St Kilda Road, Melbourne. Its students include a very few children with no hearing impairment, but the school is almost exclusively a school attended by children who are deaf or hearing impaired. It is clear from the school's charter and the information brochure which it produces, that it is the school's philosophy to develop in its students, effective communication skills, so that they can take their place in the hearing and deaf communities. To this end, the school provides a bilingual approach using AUSLAN as a visual language, and English as the language of writing and speaking. The charter and brochure also emphasise the school's commitment to provide education of similar academic standard as other mainstream schools, but also to provide programs modified where necessary, to meet the students particular needs. The brochure and charter recognise that the bilingual approach covers signing, speaking, listening, reading and writing; but that some students may chose to communicate in one preferred way.

22 AUSLAN, Australian sign language, is a visual language in which communication occurs through signing. Like other languages, it has its own vocabulary and its own structure.

23 Ben first enrolled at VCD for the 2001 school year. He had come from Princess Elizabeth junior school, a preparatory school for deaf and hearing impaired children. Ben spent his first year at VCD in a class taught by Ms Worrell; his second in a class taught by Ms Lucy and his third to 8 August 2003 in a class also taught by Ms Lucy. From 11 August 2003 he was moved to a class taught by Ms Peake and he remained there whilst this hearing took place.

24 There is no dispute that Ben has epilepsy which manifests itself in the form of silent seizures. These are electrical discharges in the brain which are detectable by an EEG, but are not indicated by any visible outward sign. It is common ground that he is profoundly deaf, but that, if assisted by hearing aids, he can hear the spoken word. It is common ground that epilepsy and profound deafness are impairments within the meaning of s.4 of the Act. It is common ground that the school which is called Victorian College for the Deaf ('VCD') is an educational institution and it operator, the State, is an educational authority within the meaning of the Act.

25 I now come to the two main issues in this case. I first deal of the issue of the way in which Ben was taught. I find that Ben's preferred method of communication, putting written communication to one side, is by voice. This applies to both receptive and expressive communication. He prefers to be communicated with and to communicate by voice. Ben's parents give this evidence. Similar evidence was given by Ben's neurologist, Dr Smith, by his speech pathologist Mr Hopkins, by Dr Pearce who is the principal of VCD and by Ben's class teachers from 2001 and 2003, Ms Worrell, Ms Lucy and Ms Peake. Ben's speech pathologist, Mr Hopkins and his audiologist, Mr Vandenberg, gave evidence which I accept, that with the assistance of hearing aids, Ben can hear the spoken word. I am satisfied that this feature is an integral part of the description or definition of Ben's deafness and its degree or extent.

26 I am also satisfied that Ben can, and does, use AUSLAN as a support or adjunct to communication by voice, and can understand communication with him by AUSLAN, although he can understand communication with him better if it is by the spoken word, than by AUSLAN. This is because although he can understand and use AUSLAN Ben is not proficient in AUSLAN. He is not proficient enough in AUSLAN to be able to use it as his sole, or primary means of receptive and expressive communication. Evidence to this effect was given by Ben's parents, his speech pathologist, Mr Hopkins, Dr Pearce the principal of VCD and his class teachers Ms Worrell, Ms Lucy and Ms Peake.

27 The reason for Ben's lack of proficiency in AUSLAN is not clear from the evidence. It may be that it is because, initially, in the home, and before he came to VCD Ben used signed English, rather than AUSLAN. Signed English is a completely different form of signing to AUSLAN. Ben's parents gave evidence that recognising Ben's difficulties with AUSLAN, they provided him home tutoring in that language from 2002 on. In my view, the evidence does not support a finding that Ben's lack of proficiency in AUSLAN is due to the existence, or extent of his profound deafness and, in particular, that if assisted by hearing aids he can hear the spoken word.

28 Ben's counsel submitted that on the evidence I should find that from 2001 to August 2003 - that is when Ben was in Ms Worrell and Ms Lucy's classes - Ben was taught largely by AUSLAN, and not through the spoken word, and that from August 2003 to the end of that school year when Ben was in Ms Peake's class while the proportion of his tuition in the spoken word increased, he was still taught largely via AUSLAN. Counsel then submitted the evidence should be interpreted to indicate that before June 2003 Ben received about seven per cent of his tuition through the spoken word and the rest via AUSLAN. After June 2003 he received a further eight per cent of tuition via the spoken word and the rest via AUSLAN. These claims are not, in my view, supported by the evidence. Indeed, there is relatively little direct evidence about how much of Ben's teaching was by the spoken word, and how much was by AUSLAN. My findings on this matter are based on the evidence of Ben's class teachers from 2001 to August 2003. Ben's mother, Mrs Zygorodimos, who attended Ben's classes at VCD for some two hours weekly in 2002 until May 2003 and some four hours weekly from May 2003 till August 2003 also gave some evidence about the way Ben was taught. Where her evidence and the evidence of Ben's class teachers conflicted, I accept the evidence of the class teachers, bearing in mind that they saw far more of Ben's classes than did Mrs Zygorodimos.

29 First, it is clear from the timetables which are in evidence that not all Ben's classes were with his class teachers. There is insufficient evidence, however, about how Ben was taught in the classes not taught by his class teachers. There is a suggestion in Ms Lucy's evidence that in science, Ben was taught partly by AUSLAN and partly by voice. There is a suggestion in the evidence of Ms Stevens, the vice-principal of VCD that in the library, drama and art classes, Ben was taught partly by AUSLAN and partly by voice. But there is no evidence about how much of this teaching was by AUSLAN and how much by voice, and whether these proportions varied over time, or from class to class.

30 Second, it is clear from the evidence that some class time was taken up by written work where the teachers would communicate in writing with the children, or the children worked without communication from the teachers. There is no evidence which would permit me to estimate how much this time was.

31 Third, there is mention in the communication books of class activities such as excursions and science experiments which would, presumably, have included interactive activities, rather than communication by the spoken word or AUSLAN. Again, the evidence does not permit to estimate how much time was taken up by these matters.

32 Fourth, it is clear from the evidence that the class teachers spent significant amounts of time teaching Ben one on one by voice.

33 My findings are these. In 2001 Ms Worrell followed a teaching, in AUSLAN, approach with her class except Ben. She taught Ben by voice, one on one. She says in her second witness statement that she spent more time in relation to issues affecting Ben than in relation to her other students. While Ben was in Ms Lucy's class in 2002, and until August 2003 Ms Lucy's oral evidence is that she spent the majority of her time teaching Ben by voice. This teaching was one on one. The rest of her students were taught by her via AUSLAN. So, for example, she would tell a story in AUSLAN to the rest of the class and either before or after doing so tell it to Ben by the spoken word.

34 During 2002 and until August 2003, Ms Lucy was, in part, assisted in her class by another teacher, Julie Rees. That assistance was for two periods a day, three days a week, from May 2003 on, and there appears to have been some assistance, although its amount is not clear, prior to this. From January to March or April 2003, Ms Lucy also was assisted by a deaf teacher aide who communicated by sign. That assistance was not full-time and Ms Lucy gave evidence that it was only for some mornings per week.

35 Ms Rees worked one on one with Ben at times when Ms Lucy worked with the rest of the class and the aide worked with the rest of the class whilst Ms Lucy worked one on one with Ben. Ms Rees gave evidence, which I accept, that for a day in 2003 Ms Lucy tried a system where she communicated by voice to Ben, at the same time as Ms Rees communicated in AUSLAN to the rest of the class, but this approach was abandoned because the rest of the class became distracted and confused about whether to look to Ms Rees or Ms Lucy.

36 Apart from the matter of the RF Unit, which I shall come to shortly, the communication books for 2001 and 2002 and January to August 2003 do not say that Ben was missing some or most of what was being taught by his class teachers, because that information was being taught only in AUSLAN. Ben's parents do not complain of this in the communication books. The books focus, instead, on various aspects of Ben's behaviour.

37 In my view, there is insufficient evidence on which I could find that the mode of tuition of Ben from 2001 to August 2003 was largely AUSLAN, or even that some of what was taught in AUSLAN to the rest of the class was not taught to Ben by the spoken word. There is some evidence, however, to suggest that the communication of material to Ben by voice, and to the rest of the class by AUSLAN may have occurred at different times. So that communication to Ben occurred on a one on one basis, rather than in the course of communication to the class as a whole. There is also insufficient evidence before me, to enable me to make findings about whether and to what extent Ben, who could communicate by AUSLAN but was not proficient in it, understood AUSLAN communications by the class teachers to the class. The notes made by the vice-principal Kay Stevens, in relation to a program support group, or 'PSG' meeting, held on 19 June 2003 indicate that there was raised at that meeting, the issue that Ben was uncomfortable with classroom situations where there was AUSLAN communication only.

38 In my view, the claim, to the extent that it might relate to time in Ms Peak's class from August 2003 onwards, cannot succeed. I accept Ms Peake's and Dr Pearce's evidence that Ms Peake teaches using her voice at all times. A full-time deaf teacher aide assists her in the class to communicate to the class in AUSLAN. Ms Peake also works one on one with Ben, using her voice.

39 I now come to the RF Unit. An RF Unit is an amplification device consisting of a microphone, in this case, to be worn by the teacher, and a receiver, in this case to be worn by the student, and attached to the student's hearing aid, by which communications, or what is said, to the student, are amplified in a way that they can be heard without the distraction of background noise. Ben's counsel submitted that I should find, on the evidence, that Ben's teachers did not use this unit to assist him to communicate to Ben by voice, and that in this way VCD failed to meet Ben's communication needs. I accept Ms Lucy's evidence that in 2002 Ben did not wear the RF Unit. In February 2003, in the communication book, and again in June 2003, Mrs Zygorodimos raised the issue of Ben's not wearing this Unit. I find that at least, in 2002 and until some in June 2003 Ben did not wear his RF Unit in class, for most, if not all of the time. But there is insufficient evidence to enable me to make findings, as to how useful the RF Unit would have been in class, in a situation where communications with the class, other than Ben, were in AUSLAN, and where communications to Ben were by the spoken word, on a one on one basis, often with the teacher sitting beside him.

40 The communication books for 2002 do not contain complaints by Ben's parents, that he could not understand communications to him via voice. Even when, in June 2003, Mrs Zygorodimos raised the fact that the RF Unit was not being worn by Ben she says that she raises the matter to help her to eliminate any external factors which might be an explanation for Ben's behaviour.

41 Ben's parents both gave evidence that in discussions with VCD's vice-principal Kay Stevens, at the time, in late 2000, when Ben's parents went to the school to enable them to decide whether or not to enrol him at VCD, Ms Stevens had told them that there would always be someone to meet Ben's oral needs in class, and that his communication needs would be met. Ms Stevens denied making these statements, but it was apparent from her oral evidence that she had little recollection of the exact conversation she had had with Ben's parents at the time. On this point, I prefer the evidence of Ben's parents. But even if this statement were made, it does not constitute, in my view, a promise by the school to provide continuous voice tuition to Ben. The statement does not set out how the communication needs would be met, or identify the exact communication needs in respect of which the statement was made. The statement must also be understood in context. That context was that Ben's parents were clearly aware that VCD was an educational setting in which AUSLAN constituted a significant method of communication.

42 I now come to the behavioural issue. I first make findings about the behaviour itself, then about its causes and then about VCD's treatment, and the reasons for that treatment. My findings about the behaviour and VCD's treatment of that behaviour are based on the evidence of Ben's parents, his class teachers in 2001 to 2003 and the principal and vice-principal of VCD, and also on the communication books.

43 My findings concerning the causes of the behaviours are based, primarily, on the evidence of his neurologist Dr Smith and his psychiatrist, Dr Gordon.

44 I first, then, deal with the behaviours themselves. From 2001 onwards, Ben's behaviours at VCD included the following-

* damaging, by uprooting, plants which were part of a school project and had been planted by students;

* lying on the floor in class and refusing to get up;

* screaming and shouting in class, running around the classroom and refusing to stop when asked by a teacher;

* behaviours such as sticking a piece of paper into a power point;

* putting inappropriate objects into his mouth such as glue, dirt or tanbark;

* tantrums, uncontrollable crying, poor concentration, refusal to cooperate with teachers, and defiant behaviour.

45 The most comprehensive record of this behaviour is in the communication books. The recording of this behaviour in the books is very detailed until the beginning of May 2003, and thereafter, is far more general in nature. I accept Ms Lucy's evidence that in May or June 2003 she discussed with Ms Peake and Ms Stevens her increasing inability to cope with Ben in her class, and that she took their advice to lighten her communication book workload, by reducing the length of the entries in it, and also to concentrate more, in the book, on positive, rather than negative aspects of Ben's behaviour. I also accept Ms Lucy's evidence, which is supported by extracts from her diary for dates in May, June and July 2003, that Ben's behaviour worsened as 2003 continued.

46 The communication books for the period from 11 August 2003 on, when Ben was in Ms Peake's class, do not comment on his behaviour. I accept Ms Peake's evidence that while Ben had been in her class his behaviour has improved markedly.

47 From the communication books from 2001 to April 2003 I am satisfied that Ben did not, at any one time, exhibit all the behaviours I have listed. He exhibited some of these behaviours at different times, but on a regular basis. On a very rough average, based on a reading of the communication books as a whole, his behaviours in one or more of the ways I have mentioned were at least weekly, and sometimes more often than this. The behaviour is of varying duration, sometimes lasting for a short part of a class only, and sometimes lasting for more than that, and even for the greater part of a day.

48 The communication books and notes of PSG meetings conducted in 2001, 2002 and 2003 contain references to numerous suggestions from Ben's parents and his teachers, about strategies to deal with this behaviour. I am satisfied that most of these suggestions were taken up, at least on a trial basis, by Ben's class teachers. The strategies included positive praise and encouragement for good behaviour; one on one attention by the teacher, to assist Ben to stay focussed; rewards in the form of ticks in a book or lollies; responses to bad behaviour, such as detention or withdrawal of rewards, withdrawal of privileges such as withdrawal of treats from the canteen, being sent to Ms Stevens, the phoning of Mrs Zygorodimos and requesting her to come to school to take Ben home. These strategies, it seems to me on a reading of the communication books as a whole, were agreed to by the parents, in general terms. Other strategies included the involvement in 2003 of the Department of Education and Training's guidance officer, or social worker, Ms Edwina Richardson. They also included one on one sessions with the case worker Mr Frost. Other strategies involved the making up, by Ms Lucy, of a special book which recorded examples of positive behaviour which was to be encouraged. Some of the strategies succeeded some of the time, but none seems to have been completely or consistently successful.

49 I accept the evidence of Ben's parents that although, until about September 2002, Ben's behaviour at home was somewhat better than his behaviour at school but still difficult, his behaviour since then at home has improved remarkably.

50 I now come to the causes of this behaviour. On the evidence, the most that can be said is that the behaviour had a number of possible causes but the evidence does not support a finding as to which of these causes led to which particular behaviour. The possible causes are these.

51 First, there is naughtiness- deliberate and controllable misbehaviour. It is clear from the communication books that the teachers and Ben's mother recognised this as a possible cause of some of the behaviour.

52 Second, in March 2003 Ben was diagnosed with a muscle weakness which affected his ability, among other things, to hold a pencil or pen and, therefore, to write. In the communication books from 2001 to 2003, challenging behaviour by Ben is often recorded when he is required to write. These recordings become more frequent in Ms Lucy's class in 2003 when, according to Ms Lucy's evidence which I accept, the class was required to write far more than in 2002. It is possible that Ben's writing difficulties were a cause of some of these behaviours.

53 Third, until at least October 2002, according to the evidence of Ben's neurologist, Dr Smith, Ben's epilepsy medication was at various stages changed, and its quantities were at various stages reduced and increased. Reactions to these changes were a possible cause of Ben's behaviour, at least until October 2002. After this, according to Dr Smith, Ben's medication stabilised and was no longer a major issue. But Dr Smith did not say in evidence that his epilepsy was no longer an issue.

54 Fourth, as a feature of Ben's epilepsy was, according to Dr Smith, silent seizures; that is, seizures with no outward sign, and these seizures occurred at night and resulted in a sleep disturbance, these also may have been a possible cause of his behaviour. The communication books record, from 2001 to 2003 that Ben frequently had disturbed, or little, sleep. It is possible that some of this disturbed sleep was due to silent seizures, and therefore that some of this behaviour was caused by tiredness which, in turn, was due to epilepsy. Dr Smith also gave evidence which I accept, that silent seizures may impair a person's communication and lead to frustration which can, in turn, lead to challenging behaviours. This is another possible cause of Ben's behaviours.

55 Fifth, Dr Smith lists, in his witness statement, a number of behaviours which epileptics commonly exhibit, and says that he would expect Ben from time to time to engage in any or all of them. The listed behaviours include behaviours which I have earlier mentioned, and in which Ben did engage. This evidence, in my view, only indicates that epilepsy is a possible cause of the behaviour, not that it is the cause of particular identifiable behaviour.

56 Six, Ben's psychiatrist, Dr Gordon, diagnosed Ben as having oppositional defiant disorder, and an anxiety disorder, with the anxiety disorder being the primary disorder, and 'ODD' being the secondary disorder. He also mentions attachment difficulties. These are also possible causes of some of Ben's behaviours.

57 Seven, there was some general evidence from Ben's speech pathologist, Mr Hopkins, and his audiologist Mr Vandenberg, and from the principal of VCD Dr Pearce and some of the educational experts about the frustration that can arise if a student has communication difficulties in the classroom. The fact that, until August 2003, Ben's classrooms teachers did not use only voice, or that he was not sufficiently proficient in AUSLAN to understand everything that was communicated in AUSLAN to the rest of the class may also have led to frustration which, in turn, may have been a possible cause of his challenging behaviours.

58 It is not possible, on the evidence, to make findings about which of these possible causes actually led to which particular behaviours.

59 I now come to how VCD treated Ben's behaviour. Ben's counsel submits that I should find that VCD responded to Ben's behaviour by inappropriately punishing him. I first deal with these matters, excluding the question of Ben's transfer to Ms Peake's class in August 2003, and then I deal with the matter of the transfer itself.

60 The evidence does not support a finding that VCD treated Ben in an inappropriately punitive way. I have earlier listed the strategies adopted by VCD to deal with Ben's behaviour. Some were in the form of positive assistance. Some, such as asking Ben's mother to take him home, were, in my view, more designed to diffuse a difficult situation, than to punish Ben. From the communication books, I am satisfied that the teachers' aim was to find a way in which Ben would be able to focus more on learning.

61 Ben's counsel submitted that VCD's excessively punitive attitude to Ben was evidenced by Ms Worrell's taking a photograph of Ben pulling out the plants which had been planted by other students in November 2001, and by the teacher Ms Rees videoing some of Ben's behaviour in may 2003. I accept the evidence of Ms Rees and Ms Worrell that these things occurred, to show Ben's parents what Ben had done. Ben's parents did not complain about the photo and, indeed, in the communication book his mother accepts that Ben's behaviour was unacceptable. Ben's parents did complain about the video at a PSG meeting in may 2003, and no further videos of Ben's behaviour were taken. There is no evidence that Ben was punished on either of these occasions, in any other way- only that the photo or video was taken- and I am not prepared to accept that doing this constituted a punishment. In the context of ongoing behavioural difficulties, attempted strategies, and constant communication about these behaviours and these strategies between parents and teachers, I do not accept that these actions constitute some form of inappropriate and punitive treatment.

62 Ben's counsel submitted that one of the instances of VCD's punitive response to Ben's behaviour was what is called in the evidence, the art room incident. It was submitted that I should find that on 4 August 2003, in an art class, Ben's art teacher, Ms Suzie McDonald, sat on him for 12 minutes as a punishment for his bad behaviour in the class. There is no dispute that in that class on that day Ben exhibited a number of the behaviours I have before mentioned, and then lay on the floor crying. Ms McDonald gave evidence before the Tribunal that she sat on the floor next to Ben. None of the children in the art class at the time, including Ben, gave evidence. Ben's mother, Denise Zygorodimos, gave evidence that Ben told her on 4 August that the art teacher had sat on him for 12 minutes. A parent of another child gave evidence that in August 2003, after a conversation with Mrs Zygorodimos and a question put by him to his child, his child had told him that the art teacher sat on Ben for two to three minutes. The parent of still another child gave evidence that his child had told him, some three months after 4 August 2003, that the art teacher had stood on Ben's shoelaces or legs. On the evidence before me, I am not satisfied that this incident occurred.

63 I now come to the matter of Ben's transfer to Ms Peake's class. There is no dispute that the decision to transfer Ben was made by VCD's principal, Dr Pearce. Various other witnesses gave evidence about why they thought she had made this decision. But it is the evidence of her state of mind only which is relevant.

64 On 12 June 2003 Dr Pearce and Mrs Zygorodimos met at a coffee shop. At that meeting Dr Pearce raised with Mrs Zygorodimos the possibility of transferring Ben out of his current class. Mrs Zygorodimos did not agree to the transfer. There are disputes over what else was said at that meeting. They are unnecessary for me to resolve here.

65 On 19 June 2003 a PSG meeting was held at which the question of Ben's transfer was again raised. I am satisfied that the outcome of that meeting was that the transfer was not to proceed at that time. Again, what else was said at that meeting is disputed. It is not necessary for me to resolve the dispute.

66 As I have said, in 2003 Ms Lucy gave evidence that she found it more and more difficult to cope with Ben in her class. On 1 August 2003 Ms Lucy told Dr Pearce that she could not continue teaching, and she was then absent on sick leave, to 5 August 2003. She returned to teaching on 6 August. Later on that day she met Dr Pearce and Kay Stevens, the vice-principal and the social worker, Edwina Richardson. I accept Ms Lucy's evidence that she first told Dr Pearce that she would continue to have Ben in her class, but that after further discussions she said that it was not OK for Ben to stay in her class.

67 Ben's counsel suggested that Ms Lucy was pressured by Dr Pearce to give this answer. I am not satisfied that this was so. The severity of Ms Lucy's illness is brought out by the evidence of her psychologist Ms Yardley whose evidence, which I accept, was that Ms Lucy is, even at the date of this hearing, unable to cope with having Ben again full-time in her class and ought, perhaps, not to be teaching for a time.

68 On Dr Pearce's evidence she decided to transfer Ben to Ms Peake's class with effect from 11 August 2003. She telephoned Mrs Zygorodimos on 8 August 2003 and also wrote to the parents, informing them of this decision.

69 On 11 August 2003 Dr Pearce met Ben's parents in the presence of Ms Ramus, a senior departmental officer, to discuss the matter. Ben's parents made it clear that they were unhappy about the transfer and also about not being consulted about the matter in advance.

70 It was submitted by Ben's counsel that I should infer from the fact that Dr Pearce had, on 5 and 6 August been interviewing children and teachers about the art room incident, that her decision was primarily made to punish Ben. On the evidence, I am not satisfied that this was the case. I accept Dr Pearce's evidence that her reasons for the transfer were her view that Ms Lucy could no longer cope with having Ben in her class and that for Ben to continue in her class would jeopardise Ms Lucy's health; and also because of Ben's behaviour and that because of this behaviour he was not spending as much time as he ought, learning, and would benefit from a different classroom environment. Finally, there was Dr Pearce's wish to provide Ben with more education by voice. I accept her evidence that she would have made the same decision for a child with the same behaviour as Ben, but without epilepsy. I accept that the principal, vice-principal, and Ben's class teachers at VCD, were aware from the time of his enrolment that he had epilepsy and hamartoma or brain tumour, and from mid to late

March 2003, were aware of his muscle weakness which caused difficulties in writing.

71 Balancing all the factors raised in the evidence about the nature of Ms Peake's class and Ms Lucy's class, I am not prepared to find that the transfer disadvantaged Ben. These matters are covered in the evidence of Dr Pearce, Ms Lucy, Ms Peake and also, to some extent, Ms Izard. In Ms Lucy's class Ms Lucy taught all but Ben in AUSLAN, and Ben one to one by voice. Ms Peake teaches full-time in voice and also gives additional one to one aid to Ben. Ms Peake's class is somewhat smaller than Ms Lucy's. While Ben has to do written tasks in Ms Peake's class his development in writing is managed on an individualised basis. So that, for example, he is allowed to substitute finger spelling for some of the written tasks, and is allowed more time to complete written tasks. These were opportunities which were not available to him in Ms Lucy's class.

72 Ms Lucy's class and Ms Peake's class are composite classes. That is they contain children of a variety of age levels and a variety of grade levels. The evidence suggests that more of the students in Ms Lucy's class than in Ms Peake's class might study at least some of the grade three materials which Ben is studying, but is not clear how much or how many of these children are in this category.

73 In both Ms Peake's class and Ms Lucy's class Ben studies using an individualised educational program, and that is the same program which he was studying in Ms Lucy's class. That program is continued while he studies in Ms Peake's class. He continues to see some of his peers in Ms Lucy's class, because he continues to study for some periods during the week in a combined class, which includes Ms Lucy's class, and also another class. This combined class is taught by a number of class teachers, and also a teacher aide. I am not satisfied that Ben's homework is of a lesser standard in Ms Peake's class than in Ms Lucy's class. Ms Peake, as I have said, is able to give Ben more one on one attention because of the greater teacher aide time available to her in her class. Ms Peake has a full-time teacher aide in her class whereas Ms Lucy only ever had a part-time teacher aid, or teacher, to assist her.

74 I accept Dr Pearce's evidence that the transfer is not permanent and that before each new school year the teachers consider carefully how to group the students so that their educational needs can be best catered for.

75 I do not accept that Ms Peake's class is a less academic one than Ms Lucy's. I note that in term three in Ms Peake's class Ben had one less period of LOTE - that is AUSLAN and one less period of library, than he had in Ms Lucy's class. But this was due to his continuing certain other classes, at the request of his parents. I note that in term four of 2003 these periods were reinstated, so that he has now he has the additional period of LOTE and the additional period of library. Finally, I accept Ms Lucy's and Ms Peake's evidence that Ben says that he is happy in this class.

76 I now deal with some other evidentiary matters. There was considerable evidence concerning the content of various PSG meetings. That content is disputed and as I said it is unnecessary for me to resolve those disputes here. There was also considerable evidence about the content of the coffee shop meeting between Dr Pearce and Mrs Zygorodimos on 12 June 2003 and about the appropriateness of the venue of that meeting, and the appropriateness of Dr Pearce's investigation of the art room incident, and also about other conduct of Dr Pearce, all of which have been the subject of complaints by Mrs Zygorodimos to the department. I do not consider it necessary to make findings on all these issues, because they are, in the end, of little relevance to the issue of whether, in relation to Ben, VCD has breached thee Equal Opportunity Act.

77 I should briefly mention the evidence in Paragraph 31 of Mrs Zygorodimos' first witness statement in which she claims that various matters constitute detrimental treatment by VCD. I have already dealt with the allegation that Ben was treated in an inappropriately punitive way. Mrs Zygorodimos sets out various statements by Ben's teachers, extracted from the communication books. I do not accept that any of these statements represents a detriment to Ben. Viewed objectively, the statements are appropriate and sympathetic, and not aimed to hurt. There is no evidence that Ben was hurt by the statements. Some of the statements express the teachers' concern that certain behaviour was naughtiness of Ben. I do not accept that the expression of these views was a detriment to Ben. As I have said, there were multiple possible causes for Ben's behaviour, of which naughtiness was one. It is not possible to attribute particular causes to any particular behaviour. There is a suggestion, even by Mrs Zygorodimos from time to time in the communication books, that some of Ben's behaviour is, in fact, due to naughtiness, but also of course, to other possible causes that I have mentioned. The communication books were the vehicle by which Ben's teachers and Ben's mother communicated about Ben's behaviour, their views about that behaviour, possible strategies, and generally about what was best for Ben's education. These statements cannot constitute a detriment to Ben in this context.

78 Before leaving evidentiary issues, I deal with the submission by the respondent's counsel, Mr Jacobs, that I should find that Ms Lucy was a competent and dedicated teacher and suited to teaching at VCD. This submission was made in response to questions asked by Mr Gray, counsel for Ben, in cross-examining Ms Lucy, where he questioned her suitability to teach at VCD. Because Ms Lucy's competence as a teacher was raised in this way, and even though it would otherwise have been unnecessary for me to make a finding on this matter, I consider it appropriate to make one on this point. The evidence from Dr Pearce and the other VCD teachers, the lavish praise consistently expressed by Mrs Zygorodimos in the communication books, the fact that in 2002, Mrs Zygorodimos nominated Ms Lucy for teacher of the year, and Ms Lucy's own evidence, clearly show her to be a competent, committed, caring and conscientious teacher, with a dedication to her students and in particular to Ben, that took precedence even over her health.

79 I now come to key issues and the submissions. Has VCD breached the Equal Opportunity Act? I first deal with the tuition issue.

80 It is first submitted for Ben that VCD has failed to provide him with the whole of his tuition by the means of communication best suited to his needs, as dictated by his impairment. These needs were to have the whole of his tuition by voice. Other hearing impaired children at VCD who do not communicate by the spoken word receive the whole of their tuition in AUSLAN which is the means of communication best suited to their needs. Alternatively, Ben's circumstances should be compared with those of children at mainstream state schools who receive their non-written tuition by the spoken word, which is the means of communication best suited to their needs. This is how the direct discrimination part of this claim is formulated.

81 In analysing this and the other claims made by Ben, I have taken into account what the High Court said in Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62. In the context of the tuition claim, I bear in mind the broad interpretation given to the definition of disability, under the Disability Discrimination Act 1992 (Cth), by all the judges of the High Court. I also note that although the definition of disability in the Disability Discrimination Act 1992 and the definition of impairment in the Equal Opportunity Act are similar, they are not identical. For instance, apart from slower learning, the definition of impairment in the Equal Opportunity Act does not expressly mention behaviour, while the definition of disability in the Commonwealth Disability Discrimination Act 1992 does.

82 I begin by accepting that under s.37(2)(a) of the Equal Opportunity Act VCD will limit Ben's access to a benefit of education, if it limits his access to what is taught at VCD, while others at VCD have greater access to what is taught. But the claim is much more specific than this. I approach the claim by looking first at how it fits into the definition of direct discrimination. First, what is the respondent's treatment of Ben? The most that the evidence supports is that the respondent has, during the relevant period, and where the rest of the class was taught in AUSLAN, given one on one voice teaching to Ben, sometimes at the same time as the material was being taught to the rest of his class, and sometimes before or after that material was taught, in AUSLAN to the rest of the class. The first of these scenarios occurred when there were two teachers or a teacher and a teacher aide in the class. The second of these scenarios occurred when only the class teacher was in the class as with Ms Lucy, in 2002. When the second scenario occurred, there would have been times when the teacher communicated only to Ben and not to the rest of the class in AUSLAN, or only to the rest of the class in AUSLAN and not to Ben.

83 It is artificial, in my view, to characterise this treatment as a failure to provide Ben with full voice tuition while providing full AUSLAN tuition to the rest of the students in his class. The characterisation also ignores the fact that some tuition, both to Ben and the rest of his class, would have been provided in written, or interactive form. The truth is that Ben and the other students received their non-written tuition by different means, and there was no full voice tuition and no full AUSLAN tuition because when only the class teacher was in the class, Ben and the rest of the class were taught separately. There are numerous other difficulties in the attempt to characterise this claim as direct discrimination.

84 First, although I have found that a feature, or inseparable part, of Ben's hearing impairment was that with hearing aids he could hear the spoken word, and I am prepared to accept that because he can hear the spoken word, his preferred method of receiving communication is via the spoken word, it does not follow that it is part of his impairment that he must have full voice communication in tuition. I accept that Ben prefers to be communicated with via the spoken word, but it does not follow that this preference is part of his impairment. The preference may be dictated, for example, by the way in which Ben is communicated with at home, or in part by his lack of proficiency in AUSLAN. There was no evidence on which I could find that lack of proficiency in AUSLAN was due to Ben's impairment. The Equal Opportunity Act requires that for direct discrimination to occur, the impairment must be a substantial basis of the treatment. I do not think the evidence supports such a conclusion in this case. This is not a case where one can say that full voice tuition was a need which stems directly from the impairment and the respondent substantially based its treatment of Ben on that need.

85 Second, in my view the respondent treated Ben and the rest of his class differently, as far as non-written tuition was concerned. The two treatments, in other words, are not capable of being compared. The circumstances of each are not the same or similar.

86 Third, I am not satisfied treatment was less favourable to the extent that there were times when the rest of Ben's class were not taught in AUSLAN or that Ben was not taught in speech. Ben and the rest of his class were treated as favourably or as unfavourably as each other.

87 Fourth, there are difficulties with the appropriate comparator. It must be with a person without that attribute or with a different attribute- that is, without Ben's exact attribute. This comparator could, in my view, be with a person whose degree of deafness is such that the person cannot, whether or not assisted by hearing aids, hear speech. But it does not then follow that such a person's preferred method of communication would be by AUSLAN.

88 Fifth, I do not think that it correctly describes VCD's treatment of its students, other than Ben, to say that it teaches them according to their preferred method of tuition, that is AUSLAN. The truth is that VCD is established as a bilingual school, using AUSLAN as the visual language and English as the language of speech and writing. The school teaches its students according, not so much to each student's preference (investigated and catered for by the school) but according to what, from the school's charter, is its purpose or aim.

89 Six, I do not accept that the comparator can be the treatment of children without a hearing impairment in the mainstream state school system. This is not the setting in which the treatment of Ben occurred. It occurred at VCD and the true comparator in the same, or similar, circumstances must be with other students at VCD.

90 I find the claim of direct discrimination not proven.

91 It is also claimed that VCD has indirectly discriminated against Ben. The complainant says that the respondent imposed a requirement or condition that to fully access education at VCD Ben must do so largely through AUSLAN. This was a requirement or condition with which Ben could not comply, because of his communication needs dictated by, or being a part of, his particular impairment of profound deafness. Those communication needs related to communication by the spoken word. A higher proportion of VCD students without Ben's particular impairment, and who used AUSLAN could comply with this requirement or condition. A condition or requirement is not reasonable, for various reasons.

92 First, as I have said earlier, the evidence does not support a finding that the respondent imposed a condition or requirement that to fully access his education Ben must do so largely through AUSLAN. I have already explained the nature of Ben's treatment by the respondent in this respect. I also agree with the submission made by the respondent that the VCD did not impose the same requirement or condition on Ben as it did on the other students in his class. I have already explained how the respondent treated Ben and the rest of his class differently, as far as the method of the tuition was concerned. This means that the criteria for indirect discrimination which requires a comparison between non-compliance with the requirement or condition by the person with an impairment, and compliance with the requirement or condition by a higher proportion of people without that impairment cannot be satisfied. The same requirement or condition does not apply to Ben and the rest of his class.

93 While I accept that there may be circumstances in which a person might impose a requirement or condition capable of general application, but where, in fact, at a particular time that requirement or condition only applied to the person with the relevant attribute, this is not one of those cases. Because of the conclusions I have reached I do not need to consider whether the alleged requirement or condition was reasonable.

94 I find the indirect discrimination claim not proven.

95 I come now to the behavioural issue. I have found that, putting to one side Ben's transfer to Ms Peake's class, the VCD did not treat Ben's behaviour in an inappropriately punitive way.

96 I now come to Ben's transfer to Ms Peake's class. I have found that there were three reasons which were the actuating factors in Dr Pearce's mind when she decided to transfer Ben. These were her belief that Ms Lucy could not cope with Ben in her class for reasons of her health; Ben's behaviour and that Dr Pearce felt that Ben would have more voicing in Ms Peake's class. There are a number of other factors in relation to the smaller class size, the greater possibility of one on one attention for Ben, which made Dr Pearce decide that it was in Ben's educational interests to transfer him. I accept that Ben's behaviour was a substantial reason, although not the only reason, for the transfer. I do not accept that in Dr Pearce's mind, Ben's epilepsy was directly a basis for Dr Pearce's decision, but I do accept that when she made the decision and at all times from Ben's enrolment at VCD onwards, Dr Pearce knew that Ben had epilepsy and that some of his behaviour might be due to epilepsy. It is common ground that epilepsy is an attribute (impairment) under s.4 of the Equal Opportunity Act.

97 For direct discrimination the question is not what caused Ben's behaviour but what was the true reason for the alleged discriminator's conduct. I accept that Ben's behaviour, coupled with the knowledge that Ben had epilepsy and that epilepsy might cause, at least, some of that behaviour, are together capable of supporting a finding that a substantial reason for Dr Pearce's conduct was Ben's impairment of epilepsy.

98 The next question is would Dr Pearce have treated a person without that impairment in the same or similar circumstances, more favourably? In the context of this case, and bearing in mind what the majority of the High Court said about the nature of the proper comparator in the Purvis case, the proper comparator is for the student at VCD without epilepsy who behaved in the same way as Ben. I have found that Dr Pearce would have treated such a student in the same way as she treated Ben. That is, she would have transferred that person to another class.

99 I have considered whether I should also include in the comparator the other circumstances which were in the mind of Dr Pearce when she made her decision. These were Ms Lucy's health and the fact that Ben's educational interests were better served in another class. It is not necessary for me to express a final view on this point because whether I formulate the circumstances to include, or to exclude these factors, the result is the same. Dr Pearce would have treated the comparator child in the same way as she treated Ben. This makes me conclude that the claim of direct discrimination is not proven.

100 Before leaving this claim I should add that Mr Gray, counsel for Ben, relied on various matters which he said I should take into account to formulate the proper comparator. These included provisions concerning disciplinary policies of state schools in the Education Regulations 2000, the absence of a provision for the transfer of a child from one class to another in VCD's code of student conduct, and views expressed by some of the witnesses, such as the education expert Professor Branson, about when it would be appropriate to transfer a child for behavioural reasons from one class to another. While this evidence may be appropriate in general terms in dealing with the challenging behaviour of children, the only evidence which, in my view, is relevant to the proper comparator here, is how Dr Pearce would have treated a child other than Ben without epilepsy, but with similar behaviour.

101 I now come to the indirect discrimination part of the claim. Counsel for the complainant submitted that VCD has imposed on Ben a requirement, or condition, that to remain in Ms Lucy's class Ben must behave in an orderly manner without what the complainant's counsel has called "odd, or eccentric behaviours". Because of his epilepsy, Ben could not control his behaviour and therefore could not comply with this requirement or condition. A student without epilepsy - that is who could control his or her behaviour - could comply with that requirement or condition. The requirement or condition was not reasonable because Ben's behaviour was not wilful or voluntary, because his failure to comply with a requirement or condition led to his transfer which compromised his education and did not fulfil his education needs, and because the transfer was an excessive response to Ben's behavioural problems which should, instead, have been handled through comprehensive, clear, coherent and well advised behavioural strategies.

102 There are a number of difficulties with this claim which lead me to conclude that it should fail. First, as counsel for the respondent correctly submits, the requirement or condition, if there was one, must only have been imposed at the time of Ben's transfer. Ben had remained in Ms Lucy's class throughout 2002 and until August 2003. Throughout this period, as my findings show, Ben's behaviours were not consistently orderly. There is no evidence of what behavioural requirements or conditions were imposed on the other children in Ms Lucy's class. The truth is, in my view, that it is artificial to construe what happened to Ben as the imposition of some general requirement or condition either relating to Ben or to the other students.

103 Second, if I am wrong, and there was a relevant requirement or condition, in the terms argued for by the complainant, then I do not think the comparison between Ben's failure to comply with that requirement or condition, and the compliance of a higher proportion of other students can be made out. I have found that there were many possible causes of particular behaviour by Ben, including, among others, epilepsy and the effects of epilepsy medication and naughtiness. It is impossible to attribute any particular cause among these, to any particular behaviour. This being so, the evidence does not support a finding about the extent to which Ben was unable to comply with such a requirement or condition.

104 Third, I am not satisfied that such a requirement or condition was not reasonable. The evidence does not support a conclusion that all the behaviours were involuntary and beyond Ben's control. On the evidence, the transfer was the last option tried by VCD after numerous strategies had been tried with limited, or little, success. Ben's current class teacher had become unable to cope with him full-time in her class. I am not satisfied that Ben's transfer compromised his education. I would add that, given my findings that overall Ben was not disadvantaged by the transfer, I am not satisfied that by transferring Ben VCD has denied, or limited, his access to a benefit of education.

105 For all these reasons, I find these claims of direct and indirect discrimination not proven.

106 I come now to my concluding comments. My general conclusion is that because I found the claims not proven, the complaint should be dismissed. But I wish to make a number of final comments.

107 First, this case turns on its own, somewhat unusual, facts. Different circumstances might well lead to a different conclusion.

108 Second, my conclusion does not mean that VCD can simply stop trying to meet Ben's educational needs in the way that it best can, given its resources, its staffing and its responsibilities to meet the needs of all of its students, including Ben. This is part of the school's commitments and goals, according to its charter. I am heartened by the evidence which suggest that students' needs are freshly evaluated at the beginning of each school year.

109 Third, there was a good deal of evidence about what, ideally, was the best way to meet the needs of children like Ben who preferred tuition in the spoken word. Even viewed from the perspective of an ideal world, there was disagreement in the evidence about what was the best way. One view was expressed that full-time one on one tuition was important. Another view was that full-time one on one tuition might decrease the child's self-reliance. Then a view was also expressed that there ought to be greater and more intensive tuition in AUSLAN. But the Equal Opportunity Act is not concerned with ideal or perfect solutions. It prohibits discrimination in various specified areas of activity. The concepts of direct and indirect discrimination look comparatively at less favourable treatment, and at general requirements which comparatively disadvantage a person with an attribute. These are concepts which are significant but are, to some extent, limited in application.

110 Fourth, VCD should, in my view, consider carefully what is the best way in which to discuss and communicate to parents decisions which it intends to make which will have important consequences for a child, such as the transfer of a child from one class to another, for behavioural reasons.

111 Fifth, it seems to me most unfortunate that this matter was not settled through the mediation process, prior to hearing. The hearing has been lengthy and must have been very costly to all parties. The case revolves around a very young child with educational needs. It is clear from the evidence that the principal and teachers at VCD and Ben's parents care deeply about this matter and have tried to address it appropriately. I would hope that in the future, for Ben's sake, the parties are able to put the history of this proceeding aside, and work together cooperatively for Ben's benefit. The absence of this cooperation cannot but be detrimental to Ben's education.