Catholic Education Office v Clarke

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FEDERAL COURT OF AUSTRALIA

Catholic Education Office v Clarke [2004] FCAFC 197

DISCRIMINATION LAW – disability – indirect discrimination – offer of enrolment by a school to a deaf student conditional on the acceptance of a ‘model of learning support’ that excluded the provision of Auslan (Australian Sign Language) interpreting services – reasonableness – Disability Discrimination Act 1992 (Cth) ss 6, 22

Disability Discrimination Act 1992 (Cth) ss 3, 4, 5, 6, 11, 12, 15, 16, 17, 18, 19, 21, 22, 23, 24, 25, 45, 67
Human Rights and Equal Opportunity Commission Act 1986 (Cth) ss 11, 46PH, 46PO
Sex Discrimination Act 1984 (Cth)
Racial Discrimination Act 1975 (Cth)

Federal Court Rules (Cth) O 52 r 14AA

Equal Opportunity Act 1984 (Vic) ss 17, 82
Discrimination Act 1991 (ACT) s 27

Purvis v New South Wales (Department of Education and Training) (2003) 202 ALR 133 discussed
Waters v Public Transport Corporation (1991) 173 CLR 349 cited
IW v City of Perth (1997) 191 CLR 1 cited
Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 cited
State of Victoria v Schou [2004] VSCA 71 cited
Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 referred to
Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 referred to
Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74 referred to
Australian Medical Council v Wilson (1996) 68 FCR 46 referred to
State of Victoria v Schou (2001) 3 VR 655 cited
Richardson v ACT Health and Community Care Service (2000) 100 FCR 1 cited
Colyer v State of Victoria [1998] 3 VR 759 cited

Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 cited

CATHOLIC EDUCATION OFFICE & ANOR v CLARKE
N 1693 of 2003

TAMBERLIN, SACKVILLE and STONE JJ
SYDNEY
6 AUGUST 2004


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1693 of 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

CATHOLIC EDUCATION OFFICE
FIRST APPELLANT

MACKILLOP CATHOLIC COLLEGE
SECOND APPELLANT

AND:

NICHOLAS GEOFFREY CLARKE on behalf of
JACOB NICHOLAS CLARKE
RESPONDENT

JUDGES:

TAMBERLIN, SACKVILLE and STONE JJ

DATE OF ORDER:

6 AUGUST 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

  1. The appeal be dismissed.
  2. The appellants pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1693 of 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

CATHOLIC EDUCATION OFFICE
FIRST APPELLANT

MACKILLOP CATHOLIC COLLEGE
SECOND APPELLANT

AND:

NICHOLAS GEOFFREY CLARKE on behalf of JACOB NICHOLAS CLARKE
RESPONDENT

JUDGES:

TAMBERLIN, SACKVILLE and STONE JJ

DATE:

6 AUGUST 2004

PLACE:

SYDNEY

REASONS FOR JUDGMENT

TAMBERLIN J:

  1. I agree with the reasons and conclusions of Sackville and Stone JJ.  I add the following in relation to the characterisation of the condition or special requirement that the…

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Details
Case
[2004] FCAFC 197
Decision Date

CaseChat Overview and Summary

Catholic Education Office v Clarke was a case heard by the High Court of Australia concerning an alleged indirect discrimination against a deaf student, Jacob, who sought to be admitted to a Catholic high school operated by the Catholic Education Office (CEO). Jacob's parents, the Clarkes, sought enrolment for their son at a Catholic high school, hoping that his transition from primary to high school would be facilitated by the fact that some of Jacob's school friends could use some Auslan (Australian Sign Language) and were familiar with assisting him in the classroom. The CEO, however, did not offer Auslan signing support as part of the model of support offered at the high school, and Auslan signing would only be provided as an "other possible support", subject to certain preconditions. Jacob's parents alleged that the CEO indirectly discriminated against Jacob in respect of the terms and conditions upon which the high school was prepared to admit him as a student and in respect of the terms and conditions upon which the CEO would provide their services to Jacob.

The legal issues the court had to decide centred around whether the CEO indirectly discriminated against Jacob by requiring him to comply with a condition or requirement, which a substantially higher proportion of persons without the disability comply or are able to comply, which Jacob does not, or is not able to, comply, and which is not reasonable in the circumstances of the case. The primary Judge found that the CEO had indeed required Jacob to comply with a requirement or condition, namely to participate in and receive classroom instruction without the assistance of an Auslan interpreter. The Judge rejected the CEO's contention that Jacob had been offered a classroom education at a secondary school administered by the CEO, an intrinsic feature of which was that the education would be provided in English.

The court's reasoning was that the CEO's requirement or condition of classroom instruction without the assistance of an Auslan interpreter was not reasonable in the circumstances of the case, given Jacob's disability. The court held that the CEO had indirectly discriminated against Jacob. The appeal by the CEO was dismissed, and the CEO was ordered to pay the respondent's costs.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellants pay the respondent’s costs.

Background

Background to the litigation

Section 45 of the DD Act deals with ‘special measures’. It provides as follows:‘This Part does not render it unlawful to do an act that is reasonably intended to:(a)ensure that persons who have a disability have equal opportunities with other persons in circumstances in relation to which a provision is made by this Act; or(b)afford persons who have a disability or a particular disability, goods or access to facilities, services or opportunities to meet their special needs in relation to:(i)…education…; and(ii)the provision of…services…;…(c)afford persons who have a disability or a particular disability, grants, benefits or programs, whether direct or indirect, to meet their special needs in relation to:(i)…education…; or(ii)the provision of…services…’THE FACTS AS FOUND The following account is drawn largely from the findings made by the primary Judge. Some of these findings were challenged by the appellants. We shall return to the grounds of challenge later in this judgment. Jacob was born on 7 August 1987 and was therefore aged 12 at the commencement of the 2000 school year. From 1992 to 1999 he attended a Catholic primary school operated by the CEO. During that time, Jacob had the assistance of a teacher’s aide fluent in Auslan and of volunteers, including his parents, who interpreted the spoken words of the teachers and his classmates into Auslan. Funding was also provided for his teacher in Years 4 and 5 to undertake training courses in Auslan. Auslan is not in any sense the translation of English by manual signals into hand and finger movements. Rather, it is a means of directly expressing perceptions, facts and ideas through the use of hands and body gestures. It is a language in its own right, although not a spoken one. Auslan has its own syntax, grammar, lexicon and devices to represent words. Its proponents claim that it is a superior means of communications by and with deaf people than alternatives. In addition to Auslan, Jacob had also been exposed to other forms of assistance. These included the use of hearing aids (with only limited success), ‘signed English’, finger spelling of spoken words, use of gestures, lip reading and note-taking. The primary Judge found that Jacob’s parents (‘the Clarkes’) had worked tirelessly and intelligently to assist Jacob to communicate effectively and to have access to an education. His Honour described Jacob as a ‘bright and intelligent young man’. The Clarkes are devout Catholics. In 1999, they were keen for Jacob to continue his education at a Catholic high school where most of his fellow students from primary school would attend. Jacob’s primary school was one of the ‘feeder schools’ for the College. The Clarkes hoped that since a number of Jacob’s school friends could use some Auslan and were familiar with assisting Jacob in the classroom, he would be helped in his transition from primary to high school. In early 1999, the Clarkes made inquiries about enrolling Jacob at the College. On 16 March 1999, the Clarkes had a preliminary meeting with Sister Noelene Quinane, the Principal of the College and Ms Mahoney, the Special Education Coordinator at the College.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 12 July 2001, proceedings were commenced in this Court pursuant to s 46PO of the HREOC Act. It was alleged on behalf of Jacob that the appellants had indirectly discriminated against him in respect of the terms and conditions upon which the College was prepared to admit him as a student (DD Act, s 22(1)(b)). A further allegation was made of indirect discrimination in respect of the terms and conditions upon which the appellants would provide their services to Jacob (DD Act, s 24(1)(b)).THE PRIMARY JUDGMENT There was no dispute before the primary Judge, or on the appeal, that : Jacob had a ‘disability’ as defined in s 4 of the DD Act (at 348 [31]); the CEO and the College were ‘educational authorit[ies]’ for the purposes of s 22(1) of the DD Act (at 348 [33]); and the CEO’s schools are and should be open for the reception and education of children with disabilities, including congenital profound deafness (at 351 [45]).Nor did the appellants contend, either at trial or on the appeal, that the admission of Jacob to the College would require services or facilities the provision of which would impose unjustifiable hardship on the educational authority: cf DD Act, s 22(4). While the respondent relied on both ss 22(1)(b) and 24(1)(b) of the DD Act at trial, the case was primarily conducted on the basis of the former provision. On the appeal, Mr Basten QC, who appeared with Mr Poynder for the respondent, relied only on s 22(1)(b) of the DD Act. It is therefore not necessary to recount the references to s 24(1)(b) in the primary judgment. The primary Judge noted that the respondent (the applicant at first instance) had defined the relevant terms and conditions of the model of support offered by the College as follows (at 350 [40]):‘(a)Auslan signing support would not be provided as part of the Model of Support; and (b)at best, Auslan signing would be provided as an “other possible support”, and subject to two preconditions, being that:(i)there be a staff member with signing skills; and(ii)any such skilled staff member be in a position to input (which I take to mean: make a significant input) into the learning support program.’ His Honour identified the issues in the case as follows (at 350 [41]):‘To establish that [the appellants] have indirectly discriminated against Jacob, [the respondent] must establish that:· the terms and conditions upon which enrolment was offered provided that Jacob comply with a “requirement or condition”; · with which a substantially higher proportion of persons without the disability comply or are able to comply;· with which Jacob does not, or is not able to, comply; and· which is not reasonable in the circumstances of the case.’ First, his Honour held that the CEO had required Jacob to comply with a ‘requirement or condition’ within s 6 of the DD Act, namely ‘to participate in and receive classroom instruction without the assistance of an interpreter’. His Honour rejected the appellants’ contention that Jacob had been offered a classroom education at a secondary school administered by the CEO, an intrinsic feature of which was that the education would be provided in English. On the appellants’ argument, the CEO had not imposed any requirement or condition over and above the very service (classroom instruction in English) that was being offered to Jacob. His Honour considered, however, that a distinction should be drawn between the service provided by the College, namely education by classroom instruction, and an imposed requirement or condition, namely that Jacob participate in such instruction without the assistance of an Auslan interpreter (at 351-352 [45]).

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.