CLW v State of NSW (Department of Education and Communities)

[2016] NSWCATAD 43

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	CLW v State of NSW (Department of Education and Communities) [2016] NSWCATAD 43
Hearing dates:	2 November 2015 and 12 November 2015 (final submissions)
Date of orders:	04 March 2016
Decision date:	04 March 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Britton, Principal Member
Decision:	Leave for the complaints to proceed before the Tribunal is refused.
Catchwords:	EQUAL OPPORTUNITY — leave required for complaint to proceed — principles applying to grant of leave
Legislation Cited:	Anti-Discrimination Act 1977 (NSW) Family Law Act 1975 (Cth) Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited:	Alchin v Rail Corporation NSW [2012] NSWADT 142 Bogie v The University of Western Sydney (1990) EOC 92-313 Bonella & ors v Wollongong City Council [2001] NSWADT 194 Burns v Sunol [2015] NSWCATAD 178 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Jones & Anor v Ekermawi [2009] NSWCA 388 Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 Razaghi v Director-General, NSW Department of Health & Anor [2002] NSWADT 4 Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26. Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 Stanborough v Woolworths Ltd [2005] NSWADT 203
Category:	Principal judgment
Parties:	CLW on behalf of herself and CLV (Applicant) State of NSW (Respondent)
Representation:	Solicitors: PA Khoury Lawyers (Applicant) Moray & Agnew (Respondent)
File Number(s):	1510545
Publication restriction:	see [7] to [9] of these reasons

Judgment

1. In 2014 the Department of Education and Communities (the Department) offered then eight-year-old student, “CLV”, a place in the Autism Intervention Program (the Program) run by the Department at a local state school. The Department assessed CLV as satisfying one of the eligibility criteria for entry to the Program, namely “a current confirmed diagnosis in the area of Autistic Spectrum Disorder”. CLV’s parents disagreed about whether the offer should be accepted. His mother, the applicant in these proceedings, believed that her son did not have Autism and would not benefit from participating in the Program. CLV’s father disagreed.

2. CLV’s parents are separated. For some time they have been in conflict about custody arrangements and matters relating to their son’s education. In September 2013, the Family Court made orders giving each parent joint custody of CLV and restraining them from withdrawing CLV from school or changing his school without the written consent of the other. In April 2014 the Court made further orders which included:

The Applicant Father is authorised to sign the offer of special placement education to the exclusion of the Respondent Mother so as to enable the child CLV…to attend the Autism intervention program at xxx School.

3. Subsequently CLV’s father accepted the offer of a placement. CLV is scheduled to leave the Program in mid-2016.

4. In January 2015, the applicant lodged a complaint with the President of the Anti-Discrimination Board (the President) on behalf of herself and her son alleging that each had been unlawfully discriminated against by the Department. In the complaint made on behalf of CLV, she alleged that the Department through its officers discriminated against her son on the ground of his presumed disability, namely Autism. In relation to the complaint in relation to herself, she alleged that the Department, through its officers discriminated against her on the grounds of marital status (single) and being a relative of a person with a presumed disability, Autism.

5. The President declined the complaints lodged by the applicant (the Complaints) on the ground that each lacked in substance: s 92(1)(a)(i) of the Anti-Discrimination Act, 1977 (NSW) (the Act). At her request, the President referred the Complaints to NCAT under s 93A(1). The Complaints may not be the subject of proceedings before the Tribunal without leave of the Tribunal: s 96(1) of the Act.

6. For the reasons that follow I have decided not to exercise the power to grant leave under s 96(1).

Suppression orders

7. While not requested by either party, I have decided to exercise the power conferred by s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) to make an order prohibiting the disclosure of the name of the applicant and her son. That power may be exercised if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason: s 64(1).

8. In making that decision I have taken into account CLV’s age and the nature of his alleged condition. I have formed the opinion that it would not be in his best interests for the details of the long running dispute between his parents, and his mother and the Department and the nature of his alleged condition to be made public. Taken together with the restrictions imposed by s 121 of the Family Law Act 1975 (Cth), I am satisfied that it is desirable to make an order restricting the publication of CLV’s name in relation to these proceedings. As the publication of the name of the applicant mother would disclose the identity of her son, I have also decided to prohibit the disclosure of her name.

9. In these reasons, the applicant will be referred to by the pseudonym, “CLW” and her son “CLV”.

Determination of leave application

10. A hearing was listed on 20 October 2015 to determine whether leave should be granted for the Complaints to proceed under s 96(1) of the Act. At the last minute, the solicitor for CLW became unavailable and, by consent, orders were made requiring CLW to give to the Department and the Tribunal, written submissions in support of her application:

1. particularising the conduct said to constitute a contravention of the Act and the relevant provisions of the Act

2. stating whether that conduct relates to the complaint made by CLW or the complaint made by CLW on behalf of her son.

Statutory framework and principles governing grant of leave

11. Headed "Complaints - the functions of the President", Division 2 of Part 9 of the Act deals with the making of complaints. A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: s 87A(1)(a)(i) of the Act. A parent of a person who lacks legal capacity to lodge a complaint because of age may make complaint on behalf of their child: s 87A(1)(b).

12. Where the President decides to accept a complaint under s 89B, he or she must investigate that complaint: s 90(1) of the Act. If, at any time in the course of that investigation the President is satisfied that the complaint is misconceived or lacking in substance and/or that no part of the conduct complained of could amount to a contravention of a provision of the Act, he or she may decline the complaint, in whole or part: ss 92(1)(a)(i) and 92(1)(a)(ii).

13. Where the President has declined a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so: s 93A of the Act.

14. Where a complaint is referred to the Tribunal on the requirement of a complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1).

15. Section 96 gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones & Anor v Ekermawi [2009] NSWCA 388 at [57]; Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25]. That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant’s rights under that scheme: Jones & Anor v Ekermawi [2009] NSWCA 388 at [57]; Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [32]. The question of leave involves evaluating whether it is “fair and just” to grant or refuse leave in the particular circumstances of the case: Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [36], [37]; Jones & Anor v Ekermawi [2009] NSWCA 388 at [58]. In deciding whether to grant leave the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones & Anor v Ekermawi [2009] NSWCA 388 at [60].

Statutory framework: disability discrimination

16. Part 4A of the Act is headed “Discrimination on the ground of disability”. Contained in Part 4A, s 49L makes it unlawful for an educational authority to discriminate against a person on the ground of disability:

49L Education

(1) It is unlawful for an educational authority to discriminate against a person on the ground of disability:

(a) by refusing or failing to accept his or her application for admission as a student, or

(b) in the terms on which it is prepared to admit him or her as a student.

(2) It is unlawful for an educational authority to discriminate against a student on the ground of disability:

(a) by denying him or her access, or limiting his or her access, to any benefit provided by the educational authority, or

(b) by expelling him or her, or

(c) by subjecting him or her to any other detriment.

(3) Nothing in this section applies to or in respect of:

(a) a private educational authority, or

(b) a refusal or failure to accept a person’s application for admission as a student by an educational authority where the educational authority administers a school, college, university or other institution which is conducted solely for students who have a disability which is not the same as that of the applicant.

…

17. Section 49M renders it unlawful for a person who provides services to discriminate against a person on the ground of disability:

49M Provision of goods and services

(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability:

(a) by refusing to provide the person with those goods or services, or

(b) in the terms on which he or she provides the person with those goods or services.

(2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person’s disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.

18. Section 49B explains what constitutes discrimination “on the ground of disability”:

What constitutes discrimination on the ground of disability

(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if the perpetrator:

(a) on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2) For the purposes of subsection (1) (a), something is done on the ground of a person’s disability if it is done on the ground of the person’s disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

…

(4) A reference in this section to persons who have a disability (“the particular disability”) is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.

19. The Act also provides:

4A Act done because of unlawful discrimination and for other reasons

If:

(a) an act is done for 2 or more reasons, and

(b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act),

then, for the purposes of this Act, the act is taken to be done for that reason.

20. Disability is defined by s 4 to mean:

49A Disability includes past, future and presumed disability

A reference in this Part to a person’s disability is a reference to a disability:

(a) that a person has, or

(b) that a person is thought to have (whether or not the person in fact has the disability), or

(c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or

(d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).

21. Section 49A provides that disability includes past, future and presumed disability:

49A Disability includes past, future and presumed disability

A reference in this Part to a person’s disability is a reference to a disability:

(a) that a person has, or

(b) that a person is thought to have (whether or not the person in fact has the disability), or

(c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or

(d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).

Approach in deciding whether to grant leave

22. In considering whether to grant or refuse leave, I will examine each complaint and decide whether all or part of it could amount to a contravention of the Act. In making that decision, I will adopt the approach commonly taken by NCAT and one of its predecessor Tribunals, the Administrative Decisions Tribunal, in determining applications for summary dismissal brought under the Act, namely that where there is a conflict between the factual allegations made by the parties I will accept CLW’s version of events: Alchin v Rail Corporation NSW [2012] NSWADT 142 at [19]–[26]; Razaghi v Director-General, NSW Department of Health & Anor [2002] NSWADT 4 at [38]; Stanborough v Woolworths Ltd [2005] NSWADT 203 at [28]; Burns v Sunol [2015] NSWCATAD 178 at [8]. In addition, where there is material which supports contentions made by CLW, I will assume that material is capable of being converted into evidence.

1. Complaint made on behalf of CLV

23. In written submissions received by NCAT on 3 November 2015, (CLW’s submissions), CLW identified the following conduct of the Department she asserted constituted unlawful discrimination on the ground of presumed disability in the area of education:

1. “There has been internal fraud in the Department due to the inappropriate placement of [CLV] into the Autism Support class at xxx Public School.

2. The Department has abused [CLV] with his inappropriate placement in the Autism Support class at School.

3. There has been medical negligence as there exists no current DSM nor has cognitive ability testing by a qualified medical practitioner been supplied to verify the Department's assessment and determine [CLV's] eligibility for the class.

4. Furthermore, reports prepared by various qualified medical practitioners stating that [CLV] did not meet the criteria for Autism/ASD were not submitted and ignored by the Department.

5. The decision for [CLV's] placement was made based on the Family Court Orders of 14 April 2014 which were superseded by the Orders of 18 July 2014.

6. The Department failed to meet the legal medical eligibility criteria.

7. The Department staff have falsified and made false statements in regards to [CLV] and his medical diagnosis.

8. The Department has breached their policies and procedures in relation to children with Autism/ASD.

9. [CLV] has had no learning support at [the Public School in which he was enrolled prior to commencing the Program] other than normal class teacher assistance and his reports indicate that he is not failing.

10. Correspondence received from Ms Janet Wasson, Director PSNSW, admitted that [CLV] did not meet the criteria for Autism/ASD.

11. The Assistant Principal of [the Public School in which he was enrolled prior to commencing the Program], Ms Kath Ash, obtained access to a confidential Family Court report which cannot be used outside the Courts and took such into consideration when making a decision in relation to [CLV]'s placement.”

24. CLW nominates as the relevant disability: the condition of Autism CLV is, or was, thought to have by officers of the Department: s 49A(b),(c). I will refer to this as the “presumed disability”.

Does the conduct fall within a substantive provision of the Act?

25. As a first step in any complaint of unlawful discrimination it is necessary to determine "whether the impugned conduct of the respondent falls within a substantive provision of the Act" Bonella & ors v Wollongong City Council [2001] NSWADT 194 at [35]. Only if the answer to that question is yes will it be necessary to consider whether that conduct constitutes unlawful discrimination as defined by the Act.

26. The gravamen of the complaint made on behalf of CLV is the decision made by the Department to offer him a place in and accept him into the Program. CLW contends that her son did not satisfy the criteria for a diagnosis of Autism and therefore did not meet the Program’s eligibility criteria. She disagrees with the opinion of those health practitioners who provided opinions that CLV suffers from Autism and, furthermore, contends that there is no current diagnosis provided by a person qualified to make a diagnosis of Autism. Among other things, she points to the opinion of the court-appointed expert, paediatrician Dr Paul Tait, and correspondence received from Ms Janet Wasson who “admitted that [CLV] did not meet the criteria for Autisms/ASD”. [In a report dated 7 December 2012 Dr Tait wrote “In my opinion [CLV] sits on the spectrum of Autism but in some respects the diagnosis of Autism is a moot point. His problems are well documented and require ongoing active support”.]

27. The conduct complained about appears to fall into three broad categories:

1. the making of the offer of a placement in the Program to CLV

2. the actions of the Department in allegedly ignoring orders made by the Family Court

3. the alleged shortcomings in the Department’s assessment of assessing CLV’s eligibility to enter the Program.

i. Offer of the placement

28. The decision to accept the offer of a place in the Program was made by CLV’s father over CLW’s opposition. There is no evidence, and nor is it suggested, that CLV or his parents were obliged to accept that offer. Nor is there any evidence that CLV’s continuation in the “mainstream” school system was contingent upon its acceptance.

29. CLW has not identified which provision in s 49L of the Act, the offer of the placement is said to contravene. It could not, in my view be said to constitute a refusal or failure to accept an application for admission as a student: s 49L(1)(a); or relate to the terms on which the Department was prepared to admit CLV as a student: s 49L(1)(b)). Nor could it be said to constitute a denial of access, or limitation of access, to any benefit provided by the Department: s 49L(2)(a); or expulsion from an educational institution: s 49L(2)(b)).

30. The only available provision would appear to be s 49L(2)(c): subjecting a student to “any detriment”. The word “detriment” in the Act has been interpreted to mean “loss damage or injury” that is “real and not trivial”: (Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [40] and Bogie v The University of Western Sydney (1990) EOC 92-313 at 78,146). While I understand CLW to contend that it was not in her son’s best interests to participate in the Program, she has not addressed how the making of the offer, in circumstances where there was no requirement that it be accepted and CLV’s continuation in the mainstream school system was not contingent upon its acceptance, subjected him to a detriment.

28. In my opinion, it is not reasonably arguable that the Department’s actions in offering a place in the Program to CLV subjected him to a detriment or contravenes s 49L of the Act.

ii. Ignoring orders made by the Family Court

32. CLW contends that the Department ignored orders made by the Family Court. She argues:

[O]n 18 July 2014 J Foster commented his shock that the Department and the father had excluded our client and made Orders for the father to immediately write and advise the Department that our client is not excluded from making decisions about [CLV]'s placement and that both parents have joint parental responsibility. The Orders of 18 July 2014 supersede and invalidate the Orders of 14 April 2014. (emphasis added)

33. There is nothing on the face of the orders made on 18 July 2014 by Foster J to support the proposition that they “supersede and invalidate” the orders made on 14 April 2014. The terms of order (1) could not be clearer: “the mother’s application for stay of orders made by this Court on 14 April 2014 be dismissed”. Notation 1 simply says CLV’s father must ensure that CLW receives information about their son’s placement. It could not be read as operating to “supersede and invalidate” the orders made on 14 April 2014, relevantly the order made by the Family Court that CLV’s father was authorised to accept the offer of a place in the Program : see [2] of these Reasons.

34. In my opinion, there is no reasonable prospect that the factual assumption on which this allegation is based could be established. Accordingly it is not necessary to consider whether this part of the Complaint contravenes s 49L of the Act.

iii. Shortcomings in the assessment of CLV’s eligibility to enter the Program

35. CLW has made a number of allegations about the assessment undertaken by the Department to determine CLV’s eligibility to participate in the Program (see particulars 1,2,3,6,7,8,9,10,11 set out in [23] of these Reasons). Among other things, she alleges that the decision made by the Department that CLV met the eligibility criteria of the Program was arrived at by a combination of “internal fraud”, false statements, misapplication of the Department’s Autism policy and the failure of staff to have proper regard to all relevant evidence.

36. For current purposes I will assume but not decide, as contended by CLW, that there were shortcomings in the assessment process. I will also assume that as a consequence of those shortcomings, CLV was subjected to a “detriment”, namely, being subjected to an improper/inadequate assessment.

Could the allegation of improper assessment succeed as a complaint of “direct discrimination”?

37. To succeed as a complaint of direct discrimination, CLW must establish on the balance of probabilities:

1. That by subjecting CLV to an improper assessment, the Department treated him less favourably, in the same or similar circumstances, than it treated or would have treated a student who was not thought to have Autism (less favourable treatment);

2. That one of the reasons for any less favourable treatment was because CLV was thought to have Autism (causation).

38. The first element — less favourable treatment — requires a comparison to be drawn between the way the Department assessed CLV’s eligibility for the program with the way it assessed, or would have assessed, a student not thought to suffer Autism.

39. Neither the submissions made on behalf of CLW nor the report prepared by the President as required by s 94A(2) (the President’s Report) identify an actual student(s) with whom CLV’s treatment could be compared, namely, a student without CLV’s presumed disability whose eligibility to enter the Program had been assessed by the Department.

40. Where, as in this case, there is no evidence of an actual comparator, it is necessary to undertake the somewhat artificial exercise of determining how the Department would have treated a hypothetical student, who did not have CLV’s presumed disability, in the same or not materially different circumstances. As noted in Dutt v Central Coast Area Health Service [2002] NSWADT 133, this exercise effectively results in the elements of less favourable treatment and causation being merged because a finding that the Department would have treated a person without CLV’s presumed disability more favourably than it treated CLV, could only be made if a reason for the treatment complained of was CLV’s presumed disability (see also Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26).

41. In Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 the majority said (at [236]) said that in determining causation the central question will always be:

[w]hy was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it ‘because of’, ‘by reason of’, that person’s disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression ‘because of’.

42. See also the comments of McHugh and Kirby JJ (at [160]).

Why was CLV subjected to an improper assessment?

43. There is no suggestion in the CLW’s submissions that one of the reasons her son was subjected to an improper assessment was because he was presumed to have Autism. Indeed CLW contends that the reason officers of the Department “falsified documents”, misapplied relevant policy and “made every effort to collude with each other” was to manipulate CLV’s entry into the Program and therefore “acquire social needs funding to keep staff employed in the program” (see for example President’s report, pp 15, 65). She alleges that “investigation has uncovered students who do not have Autism/ASD ... have been deliberately misdiagnosed and miscategorised … for the purpose of funding and diverting the student to another school or program for Autism” (President’s report, p 65).

44. CLW’s hypothesis that the reason her son was improperly assessed as satisfying the eligibility requirements of the Program, sits at odds with a finding that one of the reasons was because he was presumed to suffer Autism. Having carefully examined the President’s report and considered CLW’s submissions, I am unable to identify any direct evidence or evidence from which the inference could be drawn that one of the reasons CLV was subjected to an improper or inadequate assessment was because he was thought to have Autism. It follows that there is no reasonable prospect that this part of the Complaint could succeed.

Summary

45. For the reasons given above, in my opinion the whole of the complaint made on behalf of CLV lacks substance.

B Complaint of marital discrimination

46. CLW contends that the Department discriminated against her on the grounds of her marital status in the area of services. Section 49M of the Act makes it unlawful for a person who provides services to discriminate against another person on the ground of marital status.

47. Submissions made on behalf of CLW particularise the alleged discriminatory conduct as follows:

1. Her concerns in relation to [CLV’s] treatment and false diagnosis have been ignored by the Department, the Premier's Office, the Minister for Education and Communities and the Director of Educational Services.

2. The Department ignored the Court Orders of the Family Court affirming both parents have joint parental responsibility for [CLV] and therefore decisions in relation to [CLV] cannot be made without both parents input and consent.

3. The Department has not taken into consideration correspondence issued by His Honour Justice Foster on 18 July 2014 to Mr Jason Miezis, Director Educational Services Macquarie Park, providing that [CLW] is not to be excluded in any decisions relating to [CLV].

Could the complaint succeed if cast as a complaint of “direct discrimination”?

48. To succeed as a complaint of direct discrimination, CLW must establish on the balance of probabilities, that in relation to one or more allegation:

1. The Department refused to provide her with services or discriminated against her in the terms on which it provided her with services.

2. The Department treated her less favourably, in the same or similar circumstances, than it treated or would have treated a married person.

3. That one of the reasons for any less favourable treatment was because she was single.

49. Allegations 2 and 3 appear to relate to the Department’s decision to accept CLV into the Program following his father’s decision to accept the offer of a place. For the reasons outlined above, the assumption underlying each of these allegations — that the Family Court ordered that the decision to accept a place in the Program must be made by both CLW and CLV’s father — is based on a false premise. It follows that this allegation lacks substance.

Could Allegation 1 succeed as a complaint?

50. CLW alleges that the Department failed to properly investigate her complaint about the treatment afforded her son, principally, the assessment that he was eligible to participate in the Program. In addition, she asserts that despite allegations of corruption being raised, the Department failed to refer her complaint about the assessment process to the NSW Independent Commission Against Corruption. The Department disputes that it failed to properly investigate CLW’s complaint or that its investigation uncovered “corrupt conduct”. Nonetheless, for current purposes I will assume but not decide there is some material to support these allegations.

51. The submissions provided on behalf of CLW do not address whether there is any material which might support a finding that there is a link between her marital status and the Department’s alleged failure to properly investigate/ refer the complaint, to ICAC. Indeed, it is difficult to discern from the documents provided by CLW to the President in support of the Complaint, on what basis it is contended that her marital status played any role in the manner the Department investigated and dealt with her complaint.

52. One of the stated reasons given by the President’s delegate for the decision to dismiss the complaint of discrimination on the ground of marital status was CLW’s failure to provide any evidence to show that “any unfair treatment she believes she received is because she is single” (see President’s report, Tab 11). This shortcoming was not addressed in the submissions made on behalf of CLW. CLW has not pointed to any direct evidence or evidence from which the inference could be drawn that one of the reasons the Department allegedly mishandled the investigation of her complaint was because of her marital status. It follows that the complaint lacks substance.

Complaint of being a relative of a person with a presumed disability

53. CLW contends that she was discriminated against on the ground of being a relative of a person with a presumed disability in the areas of services: ss 49B(1) and 49M. In submissions, CLW relied on the same particulars as relied upon in relation to her complaint of discrimination on the ground of marital status: see [48] above.

54. For the reasons given at [49] above, there is no reasonable prospect that Allegations 2 and 3 could succeed. With respect to Allegation 1, CLW has again failed to point to any evidence which might support a finding that one of the reasons for the alleged less favourable treatment was because she was related to a child who was thought to suffer from a disability. Indeed, as stated above, it would appear that CLW contends that Department officers shared her view that her son did not meet the eligibility criteria for the program but nonetheless manipulated the assessment for “corrupt” purposes. The complaint in my opinion lacks substance

Could any of the complaints be cast of “indirect discrimination”?

55. While not raised by CLW, in the interests of completeness I will consider whether any of the complaints could be characterised as indirect discrimination as defined by s 49B(1)(b).

56. For the complaint made on behalf of CLV to succeed, the Tribunal must be satisfied of four elements:

1. The Department imposed a “requirement or condition”; and

2. CLV was unable to comply with that requirement or condition; and

3. A substantially higher proportion of students who are not presumed to suffer from Autism comply or are able to comply with the subject requirement or condition; and

4. The requirement or condition was “not reasonable having regard to the circumstances of the case”.

57. CLW has not identified any requirement or condition said to be imposed by the Department with which CLV is unable to comply. Nor does the available material point to a requirement or condition that CLV is said to be unable to comply with.

58. Similarly, in relation to the complaints of discrimination on the grounds of marital status/ presumed disability of a relative, CLW has not identified any requirement or condition said to be imposed by the Department with which she is unable to comply. Nor does the available material point to any such requirement or condition that CLW is unable to comply with.

59. It follows that none of the complaints could be characterised as indirect discrimination.

Conclusion

60. In submissions in support of her leave application, CLW did not address the evidentiary shortcomings squarely raised by the President’s delegate in her decision to decline the Complaints.

61. I accept CLW is sincere in her belief that her son does not suffer from Autism and that it is not in his best interests that he participate in the Program. She may be correct. She may also be correct that there were shortcomings in the Department’s assessment of CLV’s eligibility to participate in the Program and its handling of her complaint. Nonetheless, in the absence of evidence or material capable of being converted into evidence that one of the reasons for the conduct complained about, was because CLV was thought to suffer Autism (in relation to the complaint made on his behalf) or because CLW is a relative of a person thought to suffer Autism and/or is single (in relation to her complaints), I have concluded that each complaint lacks substance.

62. For these reasons I have decided it is “fair and just” to refuse leave for the Complaints to proceed before the Tribunal.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

25 May 2016 - Removed name of school in paragraph 23.

Decision last updated: 25 May 2016