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Clarke v Catholic Education Office

Clarke v Catholic Education Office

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FEDERAL COURT OF AUSTRALIA
Clarke v Catholic Education Office & Anor [2003] FCA 1085
DISCRIMINATION LAW– civil and political rights – indirect discrimination on ground of disability – boy with congenital profound deafness – mainly communicated by Auslan – about to enter high school – whether in circumstances reasonable for education provider not to take more steps to provide Auslan interpreting assistance for class room instruction – such assistance provided in primary school operated by same education provider.
DAMAGES – merely compensatory.
Australian Iron & Steel Pty Lt v Banovic (1987) 168 CLR 165 at 178-79; 187, applied
Commonwealth Bank v Human Rights & Equal Opportunity Commission (1997) 150 ALR 1, followed
IW v The Cityof Perthand Ors (1997) 191 CLR 1, considered
Jones v Dunkel (1959) 101 CLR 298, applied
Secretary, Department of Foreign Affairs and Trade v Styles and Anor (1989) 23 FCR 251, followed
State of Victoria v Schou (2001) 3 VR 655, considered
Waters v Public Transport Corporation (1991) 173 CLR 349, applied
Disability Discrimination Act1992 (Cth), ss 3, 4, 6, 22(1)(b), 24 (1)(b), 24(2)
Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss 46PH(1)(i), 46PO, 46PO(3)
NICHOLAS GEOFFREY CLARKE on behalf of JACOB NICHOLAS CLARKE v CATHOLIC EDUCATION OFFICE & ANOR
N1067 of 2001
MADGWICK J
8 OCTOBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1067 OF 2001

BETWEEN:

NICHOLAS GEOFFREY CLARKE on behalf of
JACOB NICHOLAS CLARKE
APPLICANT

AND:

CATHOLIC EDUCATION OFFICE
FIRST RESPONDENT

MACKILLOP CATHOLIC COLLEGE
SECOND RESPONDENT

JUDGE:

MADGWICK J

DATE OF ORDER:

8 OCTOBER 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Judgment for the applicant.
2.The respondents pay the applicant $26,000 within 28 days.
3.The respondents pay the applicant’s costs to be assessed or taxed.

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 1067 OF 2001

BETWEEN:

NICHOLAS GEOFFREY CLARKE on behalf of
JACOB NICHOLAS CLARKE
APPLICANT

AND:

CATHOLIC EDUCATION OFFICE
FIRST RESPONDENT

MACKILLOP CATHOLIC COLLEGE
SECOND RESPONDENT

JUDGE:

MADGWICK J

DATE:

8 OCTOBER 2003

PLACE:

SYDNEY

REASONS FOR JUDGMENT
HIS HONOUR:
Introduction

This is an application made under the Disability Discrimination Act1992 (Cth) (“the DDA”). The application is brought by Mr Clarke for his son, Jacob, who is profoundly deaf and has been so since birth. The first respondent, the Catholic Education Office (“the CEO”), is an educational authority responsible for the administration of Catholic schools in the Archdiocese of Canberra and Goulburn, including the second respondent, Mackillop Catholic College (“the College”), a high school to which an application was made by the Clarkes for enrolment of Jacob as a pupil.
It is alleged that the respondents unlawfully discriminated against Jacob, on the grounds of his disability, in respect of the terms and conditions on which they were prepared to admit Jacob to the College and as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] FCA 1085
Decision Date: 8 OCTOBER 2003

CaseChat Overview and Summary

The case of Clarke v Catholic Education Office involves an allegation of unlawful discrimination by the respondents against Jacob, a deaf student, in the terms and conditions of his admission to a Catholic high school. The central dispute is whether the respondents' proposed "model of learning support" for Jacob's deafness, which did not include the provision of Australian Sign Language (Auslan) interpreting assistance and instead relied on note-taking, adequately met his educational needs. The Clarkes, Jacob's parents, withdrew their acceptance of the enrolment offer due to the absence of such assistance, leading to the legal action. The case raises critical issues about the adequacy of the educational support provided to a deaf student and whether the respondents' approach complied with anti-discrimination laws.

The court was tasked with determining whether the proposed learning support model was reasonable and whether it discriminated against Jacob on the grounds of his disability. The court considered whether the reliance on note-taking as a primary communication tool was sufficient to enable Jacob to participate effectively in the classroom. It also evaluated the respondents' reluctance to provide Auslan interpreting assistance and the implications of this on Jacob's educational experience and well-being. The court examined the respondents' approach to accommodating Jacob's needs and the potential impact of the proposed support model on his ability to receive an effective education.

In its reasoning, the court found that the proposed learning support model did not adequately address Jacob's need for Auslan interpreting assistance. The court concluded that the requirement or condition imposed on the Clarkes effectively obliged Jacob to enter high school without the assurance of an Auslan interpreter for core subjects, which would have significantly impaired his ability to participate in the classroom and receive an effective education. The court highlighted the damaging impact of the discriminatory effect of the respondents' requirement or condition on Jacob's progress and well-being. The court also noted the significant failure of the respondents to call relevant witnesses, drawing adverse inferences against them.

The court found in favour of the applicants and ordered the respondents to pay $26,000 to the applicants within 28 days and to pay the applicants' costs to be assessed or taxed. The judgment underscores the importance of providing adequate support to students with disabilities to ensure they receive an effective education and highlights the need for schools to accommodate the unique needs of such students.

Orders

Orders of the court

1. Judgment for the applicant.

2. The respondents pay the applicant $26,000 within 28 days.

3. The respondents pay the applicant’s costs to be assessed or taxed.

Background

Background to the litigation

It is alleged that the respondents unlawfully discriminated against Jacob, on the grounds of his disability, in respect of the terms and conditions on which they were prepared to admit Jacob to the College and as to the terms and conditions on which the respondents’ services would be provided. Central to the complaint is that a proposed “model of learning support” put forward by the respondents for Jacob’s deafness, as part of the terms and conditions on which the offer was made, did not include the provision of Australian Sign Language (better known as Auslan) interpreting assistance and instead relied on the use of note-taking as the primary communication tool to support Jacob in the classroom. It is alleged that Jacob would not have been able adequately to participate in and receive classroom instruction without such sign language assistance. In the absence of such assistance or a firmer commitment to the likelihood of its use, the Clarkes ultimately withdrew their acceptance of an offer of enrolment at the College, which had been made to them. Background Jacob was born on 7 August 1987. From 1992 to 1999 he attended a Catholic primary school (operated by the CEO) for which the Clarkes were full of praise. During that time Jacob had the assistance of a teacher's aide fluent in Auslan and volunteers (including his parents) who interpreted the spoken words of the teachers and his classmates into Auslan. Funding was also provided for his year four (and five) teacher, Ms Ott, to undertake training courses in Auslan. In addition to Auslan interpretation, Jacob had also been exposed to other forms of assistance including the use of hearing aids (with only limited success), “signed English” (English translated by sign), finger spelling of spoken words, use of gestures, lip reading and note-taking. His parents have worked tirelessly and intelligently to assist Jacob to communicate effectively and to have access to an education. It is clear that their efforts have assisted Jacob, who is a bright and intelligent young man. It is not in dispute between the parties that Jacob required assistance and that the respondents should have provided it. In the end, the question comes down to whether, in all the circumstances, the type of assistance the respondents offered was reasonable. A characteristic of Auslan is that it is not in any sense the translation of English by manual signals into hand and finger movements, but 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 albeit not a spoken one: it has its own syntax, grammar, lexicon and devices to represent words. It is said by those who advocate its use to be superior, as a means of enabling communication by and with deaf people, to other aids to such communication. Mr and Mrs Clarke, as devout Catholics, were keen for Jacob to continue his education at a Catholic high school and at the high school where most of his fellow students from primary school would go. The second respondent met those requirements. The primary school Jacob attended was one of the “feeder schools” for the College and so, as a matter of course, many of his peers would be attending the College. A number of his school friends were able to use some Auslan and were familiar with assisting Jacob in the classroom. The Clarkes hoped that this would assist Jacob in his transition from primary to high school. It was his parents’ conviction that Jacob needed to continue to receive Auslan assistance at the College, particularly in respect of core subjects such as English, maths, religion, science and social studies.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MADGWICK J

It is very surprising that Sr. Quinane was not called. She should have been able to explain any in-school problems and to have dispelled suspicion that unwillingness to adapt underlay her apparent reluctance to make the necessary arrangements and give the necessary assurances to the Clarkes. She should have been able to show that, in truth, she embraced the notion of everyone doing their best to see that Jacob, at least for some time, received the Auslan interpreting support that he plainly needed. As to her absence from the witness box, I do draw the appropriate inferences against the respondents. That confirms my view that Auslan support very probably would not have been provided for Jacob. I mention elsewhere the significant failure to call the primary school principal and Jacob’s last primary class teacher.Conclusions The effect of the requirement or condition, as explained to the Clarkes, was, in reality, to oblige Jacob to enter high school without the assurance that the school would actively encourage the use of an Auslan interpreter for the subjects most demanding for him when taught in spoken English. If that requirement or condition had been accepted, Jacob would have been, for at least a substantial part of his school day, effectively a non-participant or at least, a very limited participant in the classroom experience: he would not have been receiving an effective education at all notwithstanding that Jacob is a bright boy with at least his fair share of adaptiveness. Being bright and adaptive, it may well be that, after an initial adjustment time, it would have been possible, as it were, to wean Jacob off dependency on an in-class Auslan interpreter. That may, in the event, also not have proved possible. In either case, it can be said with some confidence, in my view, that at least for a few months, little progress in that respect would have been likely. Thus the nature and extent, the impact of the discriminatory effect of the respondents’ requirement or condition would have been very damaging to Jacob’s progress, indeed to his well-being. He was a vulnerable and needy child. In my view, what explained the imposition of the requirement or condition were predominantly two factors. The first was a view to the effect that Jacob would need to get through adult life without an Auslan interpreter, if he should wish to participate in the world of hearing people (as his parents hoped), and further classroom dependence on an Auslan interpreter would be inimical to this. The second was a reluctance to make the adaptations necessary to accommodate the flexible and unusual arrangements likely necessary to keep a supply of interpreting services up to Jacob. In the latter regard, it would be necessary to:·have another adult in the classroom actively engaging in sign language, rather than, for example, sitting quietly and observing classroom activities and/or taking notes;·accept that, at least for a time, there might be more than one such adult so engaged;·cope with the ethical and legal difficulties of a number of non-teacher interpreters, including volunteers, coming into the school and being in Jacob’s classroom; and·as a practical matter, rely on Jacob’s parents for much of the organisation of the signing support for Jacob.

Ratio Decidendi

Legal Principle Established

Established by: MADGWICK J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1067 OF 2001

BETWEEN:	NICHOLAS GEOFFREY CLARKE on behalf of JACOB NICHOLAS CLARKE APPLICANT
AND:	CATHOLIC EDUCATION OFFICE FIRST RESPONDENT MACKILLOP CATHOLIC COLLEGE SECOND RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	8 OCTOBER 2003
WHERE MADE:	SYDNEY

JUDGE:	MADGWICK J
DATE:	8 OCTOBER 2003
PLACE:	SYDNEY