GKX v Secretary, Department of Education

[2025] NSWCATAD 155

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GKX v Secretary, Department of Education [2025] NSWCATAD 155

Hearing dates:

10-11 March, 28 March, 6 June 2025

Date of orders:

30 June 2025

Decision date:

30 June 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Andelman, Senior Member
F Given, General Member

Decision:

(1) The complaint is substantiated in part.

(2) The remainder of the complaint is dismissed.

(3) The respondent is to pay GKX obo her child HCU damages of $15 000 by way of compensation for loss or damage suffered by reason of the Respondent’s conduct.

Catchwords:

HUMAN RIGHTS – discrimination – on the ground of disability – direct discrimination – indirect discrimination - education – denying or limiting access to a benefit – subjecting to a detriment

Legislation Cited:

Anti-Discrimination Act 1997 (NSW)

Disability Discrimination Act 1992 (Cth)

Cases Cited:

A v Director-General, Department Education and Training [2008] NSWSC 1091

Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165; [1989] HCA 56 

Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13

CEU v University of Technology Sydney [2017] NSWCATAD 323

Commonwealth v HR&EOC (Dopking No 1) (1993) 46 FCR 191

Director General, Department of Education & Training v FP and FQ on behalf of FR (EOD) [2003] NSWADTAP 51

Dutt v Central Coast Area Health Service [2002] NSWADT 133

GKX v Secretary, Department of Education [2024] NSWCATAD 186

Hall v A & A Sheiban Pty Ltd [1989] 20 FCR 217

IW v City of Perth [1997] HCA 30; 191 CLR 1

Lyons v Queensland (2016) 259 CLR 518

O'Callaghan v Loder [1983] 3 NSWLR 89

 Purvis v State of New South Wales (2003) 217 CLR 92; [2003] HCA 62

 Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82

Smith v Department of Education and Communities [2013] NSWADT 162

State of New South Wales (Department of Justice - Corrective Services) v Huntley [2017] FCA 581

Waterhouse v Bell (1991) 25 NSWLR 99

Waters v Public Transport Corporation [1991] HCA 49; 173 CLR 349

Watts v Australian Postal Corporation [2014] FCA 370; 222 FCR 220

Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Ltd [2021] NSWCATAD 107 

Texts Cited:

none

Category:

Principal judgment

Parties:

GKX (obo HCU) (First Applicant)
HCU (Second Applicant)
Secretary, Department of Education (Respondent)

Representation:

Counsel:
K Edwards (Respondent)

Solicitors:
McCabes Lawyers (Respondent)

Other:
Applicant (Self Represented)

File Number(s):

2023/00164654

Publication restriction:

Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013, the publication or broadcast of the name of the applicants is prohibited.

REASONS FOR DECISION

1. GKX is the mother of a child (HCU) who was a student in a primary public school in New South Wales. She brought a complaint on behalf of her child against the Secretary, Department of Education. GKX alleged that the respondent discriminated against her child on the ground of disability in education.

2. In GKX v Secretary, Department of Education [2024] NSWCATAD 186, the Tribunal determined that the applicant could proceed with the following allegations:

109. The applicant can proceed with the following four allegations:

(1) Throughout the Complaint Period, the School removed the adjustments it provided to the Student in 2020.These were:

(a) a weighted lap pad;

(b) access to a quiet space at break times;

(c) access to a safe chill out space to be accessed on demand in the classroom; and

(d) adjusted curriculum to cater for the Student’s giftedness and interests.

(2) Throughout the Complaint Period, the School reduced the level of SLSO support that had been in place since the Student commenced at the School.

(3) The conduct of the School Principal on 21 (sic) (12) October 2021 which included threatening to suspend the Student and communicating in an aggressive and hostile manner in front of the Student and the applicant as set out in paragraphs [38]-[49] of the applicant’s affidavit.

(4) The conduct of the School Principal on or about 28 February 2022. Ms Allen stated to the applicant that the School would no longer be able to “support” the Student and was no longer her “main school.”

3. On 6 August 2025 the applicant was given leave to amend her complaint from the beginning of the 2021 school year up to 12 October 2022 as well as to proceed with an additional allegation that during the 2021 school year, the alternative method of assessments were unilaterally removed by the school and the school staff instructed School Learning Support Officers (SLSOs) to force the student to practice handwriting NSW foundation style.

4. The applicant was also given leave to include a complaint in her own right as an associate of a disabled person on the basis that she was discriminated against on the ground of s 49M of the Anti-Discrimination Act 1997 (NSW).

5. The respondent set out all the allegations into the following format, with which GKX agreed:

Allegation one – direct discrimination or in the alternative indirect discrimination

Throughout the Complaint Period, the School removed the adjustments it provided to the Student in 2020.These were:

(a) a weighted lap pad;

(b) access to a quiet space at break times;

(c) access to a safe chill out space to be accessed on demand in the classroom;

(d) adjusted curriculum to cater for the Student’s giftedness and interests; and

(e) during the 2020 school year, the School had agreed to facilitate alternative methods of assessment such as oral assessment, scribing or voice to text. However during the 2021 school year those alternative methods of assessment where unilaterally removed by the School and the School staff instructed SLSOs to force the Student practise handwriting NSW foundation style.

Allegation two – direct discrimination

Throughout the Complaint Period, the School reduced the level of SLSO support that had been in place since the Student commenced at the School.

Allegation 3 – direct discrimination

The conduct of the School Principal on 12 October 2021 which included threatening to suspend the Student and communicating in an aggressive and hostile manner in front of the Student and the applicant as set out in paragraphs [38]-[49] of the applicant’s affidavit.

Allegation four – direct discrimination

The conduct of the School Principal on or about 28 February 2022. Ms Allen stated to the applicant that the School would no longer be able to “support” the Student and was no longer her “main school.”

Allegation five

The respondent discriminated against GKX contrary to s 48M of the Anti-Discrimination Act in her own right as an associate of a disabled person.

6. The case can be summarised into three different parts. First, whether adjustments provided to the student by the school in 2020 were removed or reduced in 2021 (Allegations 1 and 2). The case was argued as one of “indirect discrimination” of a kind covered by s 49B(1)(b) and in the alternative “direct discrimination” of a kind covered by s 49B(1)(a). Secondly, whether the conduct of Ms Allen, the Principal towards to the student was “direct discrimination” and contravened s 49L(2)(a), (b) or (c) of the Anti-Discrimination Act (Allegation 3 and 4). Thirdly, whether GKX was discriminated in her own right in the provision of goods and services by the school. (Allegation 5).

7. For the reasons that follow we have found that the applicants have failed to satisfy the Tribunal that the adjustments provided to the student by the school in 2020 were removed or reduced in 2021 and those claims are dismissed. We have found that some of the conduct by the respondent on 12 October 2021 did contravene s 49L(2)(c) but that the conduct by the respondent on 28 February 2022 was not carried out because of the student’s disability and that claim is dismissed. The claim by GKX is also dismissed.

8. We have decided that the respondent’s discriminatory conduct contributed to the distress from 12 October 2021 to the end of the complaint period, which is a loss suffered because of the respondent’s conduct. We have determined to award the student $15 000 as compensation. As the student is now eleven years old, we will make the order that the payment is made to the student’s mother, GKX.

Competing Claims

9. The applicant relied on her own evidence to prove that as a matter of fact, at the commencement of the 2021 school year the school removed a number of adjustments it provided to the student during the 2020 school year.

10. The applicant asserted that the school reduced the level of SLSO support for the student from the commencement of the 2021 school year.

11. The applicant gave evidence as to conversations she had with Ms Allen, the Principal of the school on 12 October 2021 and 28 February 2022.

12. The applicant’s evidence was that she informed the school prior to the student starting that it was suspected by the student’s medical team that she had ADHD and autism and had challenging behaviours in certain settings. Clinical records were provided to the school. This occurred during a meeting at the school with Ms Stern in about May to June 2020. GKX’s evidence was that she told Ms Stern that the student would not be able to cope with playground during lunchtime and that she appeared to be in physical pain with loud noises. GKX stated that Ms Stent told her that a solution could be found and that she could have a quite space away from the noise.

13. The applicant sought the following orders:

1. An agreement about current enrolment continuing indefinitely.

2. Financial compensation for emotional and psychological harm suffered by the student as a result of:

1. Failure to provide reasonable adjustments (allegation 1, 2 and 3) $20 000;

2. Ms Allen’s conduct on 12 October 2021 (allegation 3) $20 000;

3. Failure to provide scribing in 2023 $10 000;

4. Ms Allen’s conduct on 28 February 2022 $15 000;

5. Failure of SDEPS $15 000;

6. Statement regarding the need for a full time aid for the student $10 000;

3. That the procedure for recording incidents and communicating with parents be more transparent;

4. The school communicate any recorded incident on Sentral to parents;

5. Allow parent’s comments to be included on Sentral;

6. Change the language used on Sentral to be more neutral and not use words such “aggressive behaviour”, “negative behaviour” and “insolence”;

7. Amend the Sentral records for the student;

8. Discipline Ms Allen; and

9. An apology from Ms Allen, Mr Gardiner, Ms Manning, Mr Hammond acknowledging their breach of the school communities charter.

14. In the closing submissions, GKX made slight amendments to the orders sought.

15. The respondent relied on the evidence of the Principal, Ms Allen as well as the Assistant Principal, Ms Manning, Deputy Principal, Ms Sten and relieving Deputy Principle, Mr Gardiner.

16. The respondent admitted that it was an educational authority and that the student has disabilities but denied that it was aware of the nature and extent of the disabilities. The respondent’s position was that GKX could not rely on the reports from medical professionals because they were attachments to her statement and therefore hearsay evidence.

17. The respondent denied that the adjustments or supports were removed and pointed to evidence that the adjustments were available to the student during the complaint period. SLSO timetables demonstrated that supports for the student in 2021 and 2022 were not reduced.

18. The Principal gave evidence as to the conversations she had with GKX on 12 October 2021 and 28 February 2022.

19. As to allegations 1 and 2, the respondent submitted that the applicant failed to identify a comparator and that evidence demonstrated that the student was treated the same way other students would have been treated in the same circumstances.

20. As to indirect discrimination the respondent submitted that the applicant failed to identify a requirement or a condition, that the assertion that the student could not comply with the requirement or condition of behaving as a typical child without support was void for uncertainty, nor that the requirement or condition was unreasonable.

21. The respondent submitted that even if the supports were removed unilaterally by the school contrary to what was agreed to in the Individual Learning Plan (ILP) and regardless of the respondent’s policy as to adjustments to teaching and learning, GKX could not possibly be successful in the complaint because the adjustments were provided in addition to what was provided to other students. The respondent relied on the decision in Waters v Public Transport Corporation [1991] HCA 49; 173 CLR 349 that the test for differential treatment could not be satisfied where the applicant was simply treated the same as everybody else.

22. As to allegation 3 the respondent submitted that the Tribunal should accept Ms Allen’s account of the conversation and submitted that the student was not treated less favourably because of her disability and that Ms Allen would have treated the student and parent in the same way where she was asking for assistance and the parent was critical of the school’s conduct.

23. As to allegation 4, Ms Allen denied the conversation as alleged by GKX.

24. As to allegation 5, the respondent submitted that there is no evidence as to what service or good was refused or provided on terms.

25. The following matters are not in contest:

1. The student commenced at the school in mid 2020 in year 1, aged 7.

2. Prior to commencement, the school prepared an application for support funding. The application was signed by the Principle on 12 June 2020.

3. When the student commenced in 2020, she had access to additional supports such as a weighted lap pad, access to a quite space during breaks, a quite space in the classroom and some support by an SLSO.

4. GKX notified Ms Stern and provided her with medical reports that the student had been diagnosed with ADHD on or about 12 October 2020 and with autism on or about 5 June 2021.

5. Ms Allen did have a telephone conversation with GKX in the presence of the student on 12 October 2021.

6. Ms Allen did have a conversation with GKX in the presence of the student on 28 February 2022 at the school.

7. The student did not attend the school following 12 October 2021 until 10 November 2021 and after this date only twice in 2021 and twice up to March 2022. From 1 April 2022 the student was enrolled in Sydney Distance Education and attended the school eleven times up until the end of the complaint period on 12 October 2022.

26. It is useful now to set out the terms of the application for support funding prepared by the school’s learning and development team, headed by Ms Stern and signed by Ms Allen on 12 June 2020 as it sets out what the school understood the student’s disability was, how the school was to support the student and what behaviours the student was exhibiting.

27. In regard to “social competence”, it was recorded that the student had “great difficulty in all social interactions”, that he required a highly structured environment where an adult is present. That he had “significant issues self-regulating his emotions and will display aggressive behaviours… if over stimulated.”

28. There is reference to an appointment with Tumbatin Developmental Service at the Sydney Children’s Hospital for the assessment of autism.

29. In regard to “safety”, it is recorded that the student struggles with changes to routines and transitions and will often become over stimulated and display aggressive behaviours.” There had been instances of past “violent behaviour” and he often did what he wanted and not comply with directions. An incident is referred to involving Ms Allen. Where the student yelled at her that he was “bored” and that she was boring and walked away. There is also reference to the student seeing a school counsellor at her previous school for “post-traumatic stress”.

30. An individual learning plan was developed for the student in February 2021 and modified in March and again in August 2021. The primary disability is listed as social/emotional, sensory and the level of adjustment is extensive.

31. We turn now to deal with each allegation in turn.

Allegation 1

A Weighted Lap Pad

32. A weighted lap pad, named Patrick in the shape of a dog was available for the student’s use when she commenced in 2020. In 2021 the student moved classrooms.

33. Ms Manning’s evidence was that the weighted lap pad together with other resources used by the student’s teacher were packed up in a white tub and moved to the year two classroom. Ms Manning stated that GKX requested that the weighed dog be moved into the student’s new classroom and that acting on this request she made sure that the weighed dog was provided to the student’s year two year teacher.

34. Ms Sten’s evidence was that she saw the weighed dog in the student’s classroom in 2021 and that this was discussed with GKX at a meeting on 26 February 2021 with the classroom teacher and a school counsellor. Ms Sten stated that GKX contacted the school in 2021 and asked for the weighted dog to be provided to the student. Ms Sten stated that in response she attended at the student’s classroom and saw the weighed dog within arm’s reach of her desk. Ms Sten stated that the school teacher told her the at the student did not wish to use this item.

35. The year two teacher did not give evidence. Ms Manning stated that the teacher was no longer at the school and that she understood that he no longer taught at a Department school.

36. GKX’s evidence was that the student told her that she did not have access to the weighted dog as did a support teacher. Parents were not allowed to visit classrooms so she never herself observed whether the weighted dog was available for the student.

37. GKX asserted that if the weighted dog was not available at the commencement of the school year in 2021 but became available sometime in late February and only for her, she would have felt singled out and not used the weighted dog.

Access to a Quiet Space During Break Times

38. A quite space was set up for the student in 2020 in the front office of the school. In 2021 this was moved to the library.

39. Ms Manning’s evidence was that the quite space in the front office was not appropriate because there was a risk that the student would abscond from school and that the front office was a main thoroughfare with various people coming and going.

40. On 15 February 2021, GKX was informed by the student’s teacher that the student could no longer play in the school office during break times and would be directed to the library or another place of her choosing.

41. Mr Gardiner’s evidence was that sometime in late term 2 in 2021, he was involved in moving the student’s quite space out of the office into the library. During Covid-19 lockdowns the quite space was moved back into the office of the school.

42. Mr Gardiner’s evidence was that Ms Allen determined to move the quite space to the library. Ms Allen’s statement made no mention to the quite space and during cross examination, she denied that she had any role in the decision to move the quite space.

43. GKX’s evidence was that the library was not available during break times because different year groups used it and that there is no evidence that an equally effective quite space was provided.

Access to a Safe Chill Out Space in the Classroom

44. Ms Sten gave evidence that she saw a chill out space set up in the student’s classroom in 2021.

45. Ms Manning likewise gave evidence that a similar chill out space was set up in the student’s classroom in 2021 and that this was specifically planned for as part of the end of year handover to ensure that the student would be in a familiar space.

46. During Covid-19 the learning from home period, the learning space for year 2 was established that was similar to the physical classroom space and the day would have commenced for the student with dim lights and music playing.

47. Ms Manning’s evidence was that in term 3, 2021, the student was attending school two days a week, this was during a lockdown. There were limited number of students and teachers at the school. The student was in a classroom that was set up with a chill out space and access to a weighted lap pad with the same learning tasks.

44. GKX’s evidence was that she was not aware of the dim lights and music playing and was told by Ms Manning that during Covid there were fewer supports and the student may be uncomfortable attending school.

Adjusted Curriculum to Cater for the Student’s Giftedness and Interests

49. Ms Stern’s evidence was that the student was nominated for and attended various Gateway programs. The student was also supported on a one on one basis by the STEM teacher. Ms Manning’s evidence was that the student would often not engage in these programs and structures.

50. Ms Manning’s evidence was that towards the end of 2021, the school’s Assistant Principle for curriculum instruction was working with the student to determine how elevated her learning was, in order to determine the appropriate level of learning, however the student was not able to engage in these activities and the school was unable to obtain data of the level of her abilities.

51. GKX submitted that the interest based, tailored sessions were only provided to the student after she disengaged from school in October 2021. These sessions occurred in 2022 and GKX attended the sessions with the student. That while the school stated that the student was provided with high potential gifted education pathways, it was a statement without any actions.

The Forced Use Of Handwriting NSW Foundation Style

52. GKX alleged that alternative methods of assessment such as oral assessment, scribing or voice to text were removed by the school in 2021. Ms Manning’s evidence was that she was not aware that there was an agreement between the school and GKX that such methods of assessment would be employed. Ms Manning accepted that the student was encouraged to write and develop his skills but that voice to text was also provided and no tools were removed.

Allegation 2 - Reduced the level of SLSO support

53. During the 2020 and the 2021 schooling year the student was receiving SLSO support. GKX alleges that the level of support reduced in 2021.

54. Ms Stern’s evidence was that the student continued to receive the same level of support in 2021 as was provided in 2020, which was seven to eight hours a week.

55. Timetables from Term 3 2020 until May 2021 were in evidence.

56. GKX’s evidence was that she was told by school staff that there would be a reduction in supports including SLSO support during Covid and she should consider not having the student at school on a full time basis as she requested due to work commitments.

Allegation 3 - Conversation between Ms Allen and GKX on 12 October 2021

57. The evidence of circumstances leading up to the conversation is problematic as Ms Allen’s evidence was that Ms Manning said and did numerous things including bringing the student to Ms Allen’s office. Ms Allen also gave evidence that she spoke to Ms Manning about this day when she was preparing her statement. However, Ms Manning had no recollection of this day, despite having a clear recollection of numerous other conversations and circumstances during this period as set out in her statement at [19] – [33].

58. The tone of the conversation is disputed and so is the order in which words were said. While both Ms Allen and GKX agree to much of what was said during the conversation, however there was some significant dispute between the witnesses.

59. Below we set out what was said by each witness in their statement and the evidence that was adduced during cross examination.

60. Following the conversation, GKX made a specific complaint to the Department of Education about the school’s conduct including Ms Allen’s conduct. A process, meetings and decisions were made as a result of this complaint. The respondent has filed no evidence as to the complaint or its resolution. Ms Allen gave some evidence during cross examination regarding the complaint and GKX filed a few emails evidencing the complaint.

Conduct leading up to the conversation

61. Ms Allen’s evidence was that Ms Manning came to her office with the student who was watching a video or playing a game on the iPad. Mr Gardiner’s evidence was that all students had access to YouTube on the iPads.

62. Ms Manning did not give any evidence about her involvement with the student on 12 October 2021. In the Tribunal, Ms Manning stated that she had no recollection of taking the student to Ms Allen’s office.

GKX’s account

63. GKX stated that Ms Allen telephoned her shortly before the end of the school day and said words to the effect of that she would need to consider suspending the student for her behaviour.

64. GKX asked what happened and Ms Allen stated that the student had refused to give an iPad back to the teacher. Ms Allen stated words to the effect of “staff had tried everything and had given up on [the name of the student]”, that there were plenty of autistic kids in the school and they know how to behave, while [the name of the student] did not. That the problem with [name of the student] was that she did not have empathy.

65. Ms Allen said to GKX that she should tell [the name of the student] to behave, that Ms Allen will have trouble finding someone willing to be her teacher in year 3. Ms Allen also said that she can not have [the name of the student] destroying a class, that any class she is put in she will destroy. That [the name of the student] needs one on one full time support. That [the name of the student] will need to behave to be accelerated.

66. GKX stated that Ms Allen was aggressive and hostile in her tone which distressed her to the point of tears.

67. On 19 October 2021, GKX wrote a complaint within the Department regarding the conduct of the school in 2021 and the conduct of Ms Allen on 12 October 2021. She wrote that Ms Allen told her that staff have tried everything and that they had given up on the student. That she will have to ask around to see if there was a teacher willing to teach the student in year 3, that the student will destroy any class he is put into and that she is going to need to consider suspension as a response to his behaviours.

68. On 1 November 2021 in a further email to the Department, GKX stated that Ms Allen said to her the following:

“- She asked me if I could come and pick him up because of him (sic) behaviour which was refusing to give back an iPad

- that there are plenty of autistic students at school and they know how to behave while [the name of the student] does not

- that the problem with [name of the student] that he does not have empathy

- that I should just tell [the name of the student] to behave

- that people have tried everything and they have given up on him

- that she will have trouble finding someone willing to be his teacher next year

- that she cannot have him destroying a class that any class he is put in he will destroy

- that in order to be accelerated he needs to behave”

69. The email also stated that Ms Allen warned her that she would need to consider suspension for his behaviour and that Ms Allen seemed “really angry during this conversation”.

70. It was GKX’s evidence that the student was deeply impacted by this conversation and she felt like she no longer belonged to the school and the community and refused to attend the school.

71. The following evidence was given during cross examination.

72. GKX agreed that Ms Allen said to her words to the effect that they were having a lot of difficulty with the [name of the student]. She did not agree that Ms Allen said to her that the [name of the student] had been brought to her out of class because he would not follow the teacher’s instructions.

73. GKX agreed that Ms Allen told her that the student would not give the iPad back but did not recall if she said that the student was accessing inappropriate material.

74. GKX recalled that Ms Allen asked her to come pick up the student but did not believe that Ms Allen gave her an option of speaking with the student as if she did, GKX stated that she would have done so.

75. GKX agreed that during this time and from the pervious term there were Covid restrictions and the student did not have access to his regular classroom teacher. GKX agreed that changed circumstances impacted on the student’s behaviour and that she found it difficult to regulate behaviour.

76. GKX agreed that she stated during the conversation that a contributing factor to the student experiencing difficulties at school was that she was not being challenged academically. GKX’s evidence was that it was Ms Allen who turned the conversation to the issue of challenging or accelerating the student.

77. It was put to GKX that there was a “critical incident” occurring on 12 October 2021 which she was not taking seriously.

78. GKX denied that she said to Ms Allen that the school did not know how to manage students with autism. GKX agreed that Ms Allen said something like “there are other children at the school with a range of additional needs and we’re able to manage them”.

79. GKX agreed that Ms Allen said “I cannot have [the name of the student] destroying another classroom”. It was put to GKX that this was a clear indication that Ms Allen was dealing with a significant behavioural issue happening.

80. GKX agreed that Ms Allen said to her “I am not sure you’re aware of how many times we’ve had with [the name of the student, because we don’t ring you every time” and asked her to come pick the student up.

81. GKX did not recall Ms Allen saying “I don’t want to start down the path of suspension, I am asking if you will help us.”

82. GKX agreed that the student did not attend the school following 12 October 2021 until 2022 and that she became enrolled in Sydney Distance Education in November 2021. GKX agreed that the medical certificate for the student did not refer to the incident on 12 October and that the medical certificate provided on 25 November 2021 until the end of the tear referred to family and personal problems and attended on at least 10 reconnection sessions at the school in 2022.

83. GKX said that 12 October 2021 was the only incident that she was asked to collect the student from school due to behaviour. On 4 August 2021, the issues were much more serious but she was told that no further action was required. Reference made to Sentral records incident#1646 GKX was informed about the incident 4 August 2021. GKX referred to her email to the school counsellor on 27 August 2021 where she refers to being contacted about Ms Manning telephoning her and telling her that student had a good day despite headbutting a teacher – reference to incident#1646.

84. GKX also referred to an email she sent to the school on 8 September 2021, where she stated that she did not want [the name of the student] to be parked on Minecraft videos again.

85. GKX stated that the first she understood that the school disputed her version of events on 12 October 2021 was when she received Ms Allen’s statement.

Ms Allen’s account

86. Ms Allen’s account of the conversation on 12 October 2021 was that during the school day, Ms Manning brought the student to her while she was in her office. Ms Allen understood that the student was accessing material on an iPad that she was not meant to be accessing during the online learning program. Ms Allen understood that this was a game or video on YouTube. Ms Allen also understood based on her conversation with Ms Manning that the student had refused to stop accessing the game or video.

87. Ms Allen asked the student to come off the iPad. The student did not answer Ms Allen and continued to look at the iPad. Ms Allen tried to see the screen but the student moved it away. Ms Allen asked the student to sit the in the Boardroom. Ms Allen said to the student that if she did not give up the iPad she would call GKX. The student did not respond.

88. Ms Allen telephoned GKX and said to her in words to the effect “we are having a lot of difficulty with [name of the student]. [The name of the student] has been brought to me out of class because he will not follow the teacher’s instructions, he appears to be accessing inappropriate material on the iPad and will not let go of it. I would really appreciate it if you could come and pick [the name of the student] up or talk to [name of the student] about coming off the iPad as he has been requested because [name of the student] is not doing what he is meant to be doing on it”

89. Ms Allen stated that GKX said to her in words to the effect “This is because [name of the student] is not being challenged in the classroom, there is nothing to interest him. The school does not know how to manage children with autism.”

90. Ms Allen said to her in words to the effect “there are other children at the school with additional needs, and we are able to manage them. I can not have [the name of the student] destroying another classroom. I am not sure if you are aware of how many difficult times we have had with [the name of the student], because we do not ring you every time. I am asking if you will come pick [the name of the student] up, because it is very difficult to manage him, and I do not want to start going down the path of suspension. I am asking you if you will help us.”

91. Ms Allen stated that GKX said to her in words to the effect “The reason [name of the student] is difficult to manage is because the school is not willing to accelerate him.”

92. Ms Allen stated that during the conversation she spoke quietly in an even tone. Ms Allen stated that following the telephone conversation the student was kicking her and Ms Manning.

93. The following evidence was given during cross examination.

94. Ms Allen stated that she was not aware that there had been a formal autism diagnosis. Ms Allen stated that this could have been because she had ‘significant periods of time away from school”, that was five to six weeks in the middle of 2021. She stated that she recalled that there were some difficulties getting reports stating a diagnosis. She knew that autism was one of a number of possible diagnosis but also recalled that the student’s difficulties could have been as a result of trauma.

95. Ms Allen stated that Ms Manning came and went a few times while the student was with Ms Allen but she was also alone with the student for some of the time. Ms Allen agreed that being alone with a child is against departmental policy under normal circumstances but it was during COVID lockdown and there were minimum staff.

96. Ms Allen stated “Ms Manning tells me that it was coming up to a break and that she was trying to organise duties because we were required to keep each grade separate from one another in the playground. And that I was due to go out on one of those supervisions.”

97. She also stated in response to what her memory was of the time of the phone call “Its party because I don’t have a memory, but too because my assistant principle (Ms Manning) has said to me that she was in and out of the room at the time and that – because I said to her, “Do you think I was cranky or loud or anything?” and she said “No, just your usual self”. So she said “But you had to go out on duty”. Now I’m assuming it was a break duty, but it may have been the end of the day duty”.

98. Ms Allen stated that she had spoken to Ms Manning about her evidence in the statement prior to it being finalised.

99. Ms Allen could not recall the time of the call or when GKX came to collect the student.

100. Ms Allen was asked whether it could have been possible to have someone supervise the student outside in the playground so that the COVID restrictions were not so much of an issue. Ms Allen responded “[the name of the student] wasn’t very willing to comply with any requests at that point in time. And the playground was never her choice of space.”

101. Ms Allen stated that the student clutched the iPad to herself or turned away when Ms Allen asked her to put it down, but she only moved towards her once as she did not want to exacerbate the situation.

102. Ms Allen stated that she was aware that the student could become heightened very quickly.

103. Ms Allen agreed that it was not typical to call a parent to discuss a child’s problem when they are present, but that this was not her intention, her intention was to ask her to speak to the student or come and get her.

104. Ms Allen was aware that the student had displayed difficult behaviour in the past such as chairs tipped, items thrown and things knocked off tables but she could not recall whether she had called GKX to pick the student up. She stated that there were occasions when she was called to the classrooms after another staff member had attended and were still experiencing difficulties in managing.

105. Ms Allen stated that the behaviours exhibited by the student were not different to other students with similar behavioural issues.

106. Ms Allen stated that she did not consider that she needed to record the telephone conversation on the day or make any record of it.

107. Ms Allen agreed that the issue of acceleration came up during the telephone call. Ms Allen could not recall if she said “I’ve been told that you want [the name of the student] to have grade acceleration and that he needs to behave to be accelerated.”

108. Ms Allen gave evidence that there was a practice of contacting parents of children with quite complex difficulties who were having issues to be picked up or to speak to them on the phone.

109. Ms Allen’s account was that she mentioned the issue of suspension later in the conversation after GKX had been asking a number of questions or making a number of statements and she felt like she was not getting cooperation and she was concerned about the student’s behaviour and the reports from staff of extreme behaviours, particularly on her return from a long absence “I don’t want to go down the path of suspension.” And that she did not say that she was going to suspend [the name of the student] for any particular thing. “I said I did not want to take that path, I want to work cooperatively with you.”

110. Ms Allen stated that she was aware that the [name of the student] seemed to display issues and he had issues in his previous school in kindergarten and had to be withdrawn.

111. Ms Allen’s evidence was that she didn’t want student’s behaviours to become heightened that they became violent or exhibit extreme behaviour and she had a “sixth sense” that she needed to have the student come off the iPad.

112. Ms Allen stated that Ms Manning told her that they could not manage the student any further. “I had the report that the teachers and Ms Manning weren’t able to manage her. So in my estimation, we weren’t far away from extreme behaviours and I didn’t want to prompt that.”

113. Ms Allen stated that the school did not call GKX on previous occasions when there were more difficult times with the student because there were more staff on duty.

114. Ms Allen could not recall whether GKX at the commencement of the conversation expressed a concern about being called about the student being on an iPad in circumstances of much more serious behaviour in the past.

115. Ms Allen could not recall a letter from a psychologist for the student to be accelerated in the previous few weeks but recalled reading minutes of a meeting where it was proposed that the student have lateral extensions and not vertical acceleration.

116. Ms Allen stated that while suspension can be immediate where a child deliberately hurts someone else, at the school there was a practice of not suspending children.

117. Ms Allen considered that she was complying with the school policy by informing GKX that the next steps might be to look at the path of suspension. She agreed that bringing up the issue of suspension is not something that she would do lightly.

118. Ms Allen was aware that the student had a number of issues and was not necessarily in control of her behaviour. She was treating the student as a child who was heightened for some reason, who was accessing materials that may not have been helping her and was seeking the assistance of a parent.

119. Ms Allen agreed that whether the behaviour is caused by autism is relevant in informing the school as to how to respond. The school attempted to identify the triggers to their behaviours and eliminate those behaviours to support the diagnosis. Regardless of a diagnosis, the school takes a practical approach and treats the child according to the behaviours that were being exhibited.

86. Ms Allen stated that following 12 October and GKX’s complaint to DEL she had apologised numerous times to her.

87. Ms Allen stated that she only became aware during the telephone conversation that GKX was not as aware as she would have liked her to have been of the student’s behaviour.

88. Ms Allen agreed during cross examination that she said that staff have tried everything and had given up on the student but she was referring to the particular day and clarified that she would not have said ‘given up on’ but that there was nothing more that staff seemed to be able to do on that day to manage the student.

89. Ms Allen stated that she said words to the effect that there are many children with special needs in the school and we were able to manage them. Ms Allen stated that not having empathy was a trait of autism spectrum disorder or that it may be a trait of autism, and agreed that this was an issue discussed during the telephone conversation.

90. Ms Allen denied that she said to GKX that she should tell the student to behave but said that she would have said that she should tell [the name of the student] to put away the iPad and cooperate with the teachers.

91. As to the assertion that Ms Allen said that she would have to ask teachers and did not know whether she would be able to find some to be the student’s teacher in year 3. Ms Allen stated that her recollection was that GKX was asking her to accelerate the student to year 3 immediately at that point and that at that time she could not get a teacher who could take the student and be able to manage.

92. As to the assertion that Ms Allen stated that the student needs one on one full time support. Ms Allen stated that she would not have said that because in her experience that’s not the level of support provided by the Department.

93. As to the assertion that Ms Allen said that the student would have to behave to be accelerated. Ms Allen said that she did not say those words because is not one of the criteria. It is social adaption, the ability to be able to manage the expectations of the grade beyond the actual academic component which is relevant.

94. She stated that prior to the call she did not read the correspondence between GKX and the school about the student’s situation or her concerns about failure to provide supports to the student. She also recalled a conversation with GKX about her concerns about the student spending too much time looking at a screen.

95. Ms Allen agreed that she was not calling about a critical incident and that she did not consider there to be any immediate risk to the student or any other person. She telephoned GKX because Ms Manning told her that the student was refusing to return the iPad.

96. Ms Allen denied that she raised her voice. Ms Allen stated that she had a professional responsibility to call GKX and urgency was in her mind.

97. Ms Allen stated that following the telephone conversation, the student was “flailing about” and “a child that was emotionally unregulated”. Ms Allen could not recall if the student’s body was making contact with her or Ms Manning. Ms Allen stated that she did not make an incident report because she was a little child who was very heightened and unable to manage herself and not deliberately trying to hurt someone. Ms Allen stated that she didn’t make an incident report because she did not consider the student to be “deliberately violent”.

Allegation 4 - Conversation between Ms Allen and GKX on 28 February 2022

132. GKX’s evidence was that on 28 February 2022 the student was attending the school for one hour as part of a reintegration plan. On this day, the school counsellor and her dog were supposed to meet the student at the office and take her to school. This did not occur. The student and GKX were waiting outside the school office. The student was sitting on the floor eating out of her lunch box.

133. GKX alleges that Ms Allen came out of the office and told the student that she would need to “behave” and “use nice language” in order to attend school. Ms Allen also said that the student was not allowed to sit on the floor and told GKX and the student to leave before the one hour was up. Ms Allen also said that the school was no longer the student’s “main school” but that Sydney Distance Education OS was.

134. GKX wrote an email to Ms Allen on the same day. She referred to Ms Allen’s comment of the student’s “bad behaviour” and:

You telling him that he needs to have good behaviour and nice language to come into school and telling us to leave before the hour was up is discriminating against him. In term 4 last year he was too scared of school to even get out of the car or come into the office, so even sitting in the front office for 1 hour is clearly progress. He was not doing anything offensive this morning and it is unacceptable that you excluded him halfway through single he has at school this week.

… It is also not helpful to discuss the need to make distance education “the main school” in front of the student.

135. Later on the same day Ms Allen responded to GKX’s email:

My staff asked me to speak to [name of the student] yourself today as they were feeling uncomfortable in situation for [name of the student].

The school Counsellor has considerable demands on her time and other students also need her attention. This morning she also had a professional commitment to her team of school counsellors.

I was concerned that [name of the student] was eating his morning tea in a less than hygienic environment because as I said to you we have had some gastric cases, currently causing concern in the local health district.

I had assumed you knew about Sydney Distance Ed’s request to be the major partner in [name of the student] shared enrolment. It did not originate with us and so we are checking the plan. Support funds which we are currently using for [name of the student] attendance have been requested to be moved to Sydney Distance Ed, which would therefore not enable RPS to support [name of the student].

The SLSO change was made at your request. We cannot put a single teacher with [name of the student] without additional support.

When we have been able to clarify with Sydney Distance Ed we will ask them to convene another meeting with you so we can all be clear about the goals for [name of the student].

136. During cross examination, it was put to Ms Allen that she asked GKX and the student to leave the school because the student was displaying bad behaviour.

137. Ms Allen’s evidence was that she suggested to GKX that the student’s behaviour “was heightened at the time and that it would be good for you to take her home.”

138. Ms Allen recalled that the student was coming to school to undertake assessments with the school counsellor but that Jess was not available that day. Ms Allen also recalled that the student was sitting on the floor of the front foyer eating grapes. Ms Allen came out of the office and said “look, this is not great (eating food of the floor) because we have heath concerns in the school.”

139. Ms Allen stated that she was not certain for the reason the student was attending the school and she may have stated to GKX that because the student was a fulltime enrolment at Sydney Distance Education, the funding went to them because targeted support funding follows a child’s enrolment.

140. Ms Allen stated that she was present and involved in numerous meetings lead by the learning support team from the time the student commenced at the school.

141. We find that Ms Allen did say words to the effect that the school would no longer be the student’s main school and that the supports would be moved to Sydney Distance Education. We consider that these words were said because the student became enrolled in Sydney Distance Education and not because of the student’s disability or for a reason that included the student’s disability and this allegation is dismissed.

Allegation 5 – discrimination as an associate of a disabled person - provision of goods and services

142. This allegation was not explained by the applicant and is dismissed.

Consideration

The legislation

Approach to the Anti-Discrimination Act and definition of disability

143. When construing beneficial legislation such as the Anti-Discrimination Act the courts have a special responsibility to take account of and give effect to the statutory purpose of the legislation which protects or enforces human rights; Waters v Public Transport Corporation [1991] HCA 49; 173 CLR 349 at 359 (Mason CJ and Gaudron J). While this statement was made about the construction of the words in the Equal Opportunity Act 1984 (Vic), the same principle is applicable here.

144. The Anti-Discrimination Act deals with discrimination of a kind that the legislature regards as “unjust”. In claims of discrimination against an educational authority, the conduct of the respondent and the obligations that arise have to be related to it’s function, powers and responsibilities and evaluated in lights of this understanding. An educational authority like a school is governed by legal obligations designed to “protect the young and vulnerable” and is “charged with the care and protection” of its students. It also owns a duty of care to its staff.  Purvis v State of New South Wales (2003) 217 CLR 92; [2003] HCA 62 at [7] (Gleeson CJ). Purvis was considering the construction of the Disability Discrimination Act 1992 (Cth), we consider the same principles are applicable to the Anti-Discrimination Act.

145. Parts of the Anti-Discrimination Act that deal with discrimination on the ground of sex or age for instance, the focus is on equality of treatment. Disability discrimination is different because the focus is upon criteria of “admitted difference” as explained in Purvis [199] (Gummow, Hayne and Heydon JJ);

The abilities of a disabled person differ in one or more respects from that range of abilities which is identified as falling within the band described as "normal". It follows that disability legislation must be understood from the premise that the criterion for its operation is difference. 

146. Unlike the provisions in the Disability Discrimination Act1992 (Cth), amended following the decision in Purvis to recognise a positive duty on a respondent to provide reasonable adjustments in certain circumstance and provide for “substantive equality”; Purvis [202], the focus of the Anti-Discrimination Act in this area is on ensuring equality of treatment, that is for all to be treated the same.

147. In Purvis, the High Court gave a wide interpretation to the definition of “disability” by recognising that the meaning of the disability includes the effects of the disability.

148. Discrimination is defined in s 4 to include:

a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

149. Section 4A of the Act provides that if an act is done for two or more reasons, and one of the reasons consists of unlawful discrimination, the act is to be taken to have been for the unlawful discriminatory reason. Section 49A(b) includes a reference to a disability that a person is thought to have.

150. Section 49B defines discrimination:

49B 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

(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.

(3) For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog.

(3A) For the purposes of, but without limiting, this section, the fact that a person who has a disability--

(a) is accompanied by, or possesses, a palliative or therapeutic device, or other mechanical equipment, that provides assistance to the person to alleviate the effect of the disability, or

(b) is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretive, reading or other services to the person because of the disability, or because of any matter related to that fact, is taken to be a characteristic that appertains generally 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.

151. A similar definition of disability was considered in Purvis, specifically “a disorder … that affects a person’s thought processes, perception of reality, emotions or judgement or that results in disturbed behaviour” did not contain the extended definition of disability found in s 48B(2) of the Anti-Discrimination Act which covers a “characteristic” imputed or appertaining generally to persons of or with the nominated disabilities.

152. In  Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 Mahoney JA referred to this extension of the definition as an attempt to address “stereotyping” a particular group of persons on the basis of an actual or implied distinguishing or idiosyncratic traits.  One of the purposes served by the extended definition of attributes to include ‘characteristics’ is to prevent the imposition of conditions or requirements that amount to ‘stereotyping’ of people; Purvis [18] (McHugh and Kirby JJ).

153. Whether a particular matter is a characteristic that appertains generally to people with a particular disability or is generally imputed to persons of a particular disability is a question of fact; Commonwealth v HR&EOC (Dopking No 1) (1993) 46 FCR 191 207 (Wilcox J); Lyons v Queensland (2016) 259 CLR 518 at 521 [2] (French CJ, Bell, Keane and Nettle JJ).

154. The relevant characteristic that is prohibited in s 48B(2) must be excluded when considering the basis of comparison; Dopking No 1 at 204-5; IW v City of Perth [1997] HCA 30; 191 CLR 1 33-34, 66-67 (Toohey and Kirby JJ).

Assessing direct discrimination

155. The provisions in s 49B(1)(a) have been described to have two key components; Waters at 392 (Dawson and Toohey JJ); Waterhouse v Bell (1991) 25 NSWLR 99  at 105  (Clarke JA). The first component is ‘differential treatment’, and the second component is ‘on the ground’.

156. The differential treatment component is that the complainant was treated less favourably by the respondent in regard to every allegation than the way in which the respondent treated or would have treated a person with no or a different disability in the same or similar circumstances. 

157. To determine whether there was less favourable treatment requires the identity of the comparator with the relevant circumstances for the purpose of the comparison.  A comparison is between an actual or a hypothetical person,  situation or circumstances. It is undertaken to shed light on whether the treatment of the complainant was less favourable. 

158. The ”on the ground” element is that a reason or ground for the less favourable treatment of the complainant by the respondent was the complainant’s disability or disabilities. It is the causation element. It is not an assessment of the person’s intentions or motives for so acting which are not necessarily relevant. The search is for the real reason why the person acted; Purvis  at [224]. As Deane and Gaudron JJ  observed in Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165; [1989] HCA 56  at 176 reasons given for the conduct may in fact mask the true basis for the act or decision.

159. Where the comparison is hypothetical, the two questions as to ”less favourable treatment” and ”on the ground” of disability can be addressed as part of the same reasoning exercise; Smith v Department of Education and Communities [2013] NSWADT 162 [143]; Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [65].

160. Concentrating primarily on the question ”why” the applicant was treated as she was, calls for an examination of all the facts of the case and simplifies deciding the less favourable treatment issue first. The question is not finding the real reason why the respondent believed he or she acted but it is an objective analysis as to why the applicant was afforded the treatment she received based on the circumstances in which the discrimination is alleged to have occurred.  

161. The approach was explained by Mortimer J (as her Honour then was) in Watts v Australian Postal Corporation [2014] FCA 370; 222 FCR 220 at [242]:

It is nevertheless correct in my opinion to approach s 5(2)(b) on the basis that the function of a comparator in the context of discrimination is to facilitate the isolation of the reason why the person was treated as he or she was: Purvis 217 CLR 92; [2003] HCA 62 at [223] per Gummow, Hayne and Heydon JJ. By removing the nominated attribute but otherwise comparing how the aggrieved person was treated in comparison with another person in the same or similar circumstances, it is thought that the “real reason” for the person’s treatment more readily emerges. In the context of s 5(2)(b), it can be said that the “real effect” more readily emerges. This explanation in Purvis, combined with the particular language in s 5(2)(b), serves to highlight the overlap between “less favourable treatment” and “because of the disability” in s 5(2)(b). They are not two separate elements: rather, by reason of the comparison required, either the conclusion will be that the effect of the failure to make reasonable adjustments was to treat a person less favourably because of her disability, or the conclusion will be that it was not.

162. The Tribunal must determine whether the evidence supports a finding that the respondent conduct, afforded the student less favourable treatment than students without a disability or a different disability, in circumstances not materially different.

163. If the Tribunal finds this to be the case, we must then determine whether such adverse and disparate treatment, was on the grounds (or oneof the grounds) of the student's disabilities.

164. The onus is on GKX to satisfy the Tribunal as to the factual and legal questions in dispute. The relevant provisions are set out in ss 49B and 49L of the Anti-Discrimination Act.

165. To substantiate her complaint, the Tribunal must be satisfied that there was differential treatment and that at least one of the reasons for the respondent’s conduct must be the student’s disabilities.  

166. For the purpose of identifying the hypothetical comparator, it is relevant to consider the context in which the respondent,  by its officers or employees  was acting. Purvis at [7] (Gleeson CJ). 

167. The student has to prove on the balance of probabilities that the disability is at least one of the ”real”, ”genuine” or ”true” reasons for the treatment; Purvis at [224] (Gummow, Hayne and Heydon JJ). The student has to prove that she was treated less favourably in the same circumstances or in circumstances that are not materially different than the respondent treated a student without these disabilities.  

162. The comparison between the treatment received by the student and a person without the disabilities requires the ”circumstances attending the treatment” to be identified and examined as to ”what would have been done in those circumstances” Purvis at [223] (Gummow, Hayne and Heydon JJ), (Callinan J agreed on the issue of comparator) if the student did not have these disabilities.  

163. The test for ”on the ground of” has been found to be in the same terms as ”by reason of” and ”because of” in Waterhouse at 105. The inquiry is objective. The aim is to examine all of the relevant facts and determine whether discrimination occurred.  

164. In Purvis, Gummow, Hayne and Heydon JJ gave guidance about the construction of ”because of” at [236] to be “why” the aggrieved person treated as she was.  

165. The task for the Tribunal is to identify the true basis or reason for the respondent’s conduct, act or decision. The explanation or justification given by the decision maker is relevant but not determinative; Banovic at 176 (Deane and Gaudron JJ). 

166. The Tribunal set out an explanation of elements of indirect discrimination in GKX v Secretary, Department of Education [2024] NSWCATAD 186 [72] - [81].

Discrimination in education

173. In the context of s 49L(2)(c), the Tribunal has to determine whether the respondent, through Ms Allen’s conduct discriminated against the student on the ground of disability by subjecting her to detriment:

49L Education

(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.

174. In O'Callaghan v Loder [1983] 3 NSWLR 89, Mathews DCJ found that sexual harassment in the workplace, which the employer knew or ought to have known about, could be regarded as a "detriment".

175. In Director General, Department of Education & Training v FP and FQ on behalf of FR (EOD) [2003] NSWADTAP 51 the Appeal Panel decided, at [50] that:

'Similarly, racial harassment of a student by fellow students at a school, which the teachers knew about or ought to have known about and took inadequate steps to eradicate, may constitute unlawful discrimination on the ground of race. Being in a school environment poisoned by racial harassment may constitute a "detriment" for the purposes of s 17(2)(b) of the AD Act. It may also constitute denial or limitation of a "benefit" associated with education if the benefit is cast as being the opportunity to enjoy the educational and social functions of a school free from harassment, whether racially based or otherwise.'

176. In A v Director-General, Department Education and Training [2008] NSWSC 1091, Harrison J endorsed the statements made in O'Callaghan v Loder and in FP and FQ at [34]:

The Tribunal did not err in defining the “detriment” as being in a learning environment where racism is tolerated. Another way of characterising the detriment would have been "being in a school environment poisoned by racial harassment." 

177. The meaning of “detriment” in relation to education arises when an educational authority subjects the student to a negative effect. There must be some disadvantage, harm or an act that leads to harm that can be objectively assessed. Detriment is a term that has a relatively broad meaning; CEU v University of Technology Sydney [2017] NSWCATAD 323 at 8. We also consider that in determining the meaning of the term we are to consider this provision within the Act as a whole, having regard to the school’s functions and that the nature of the legislation is beneficial to the student; Purvis [7].

Allegation 1

178. We do not consider that the applicant has made out the claim on the facts that the adjustments for the student were removed by the school in 2021.

179. GKX relied on the advice of the student to assert that the adjustments were removed. The respondent relied on direct evidence that the adjustments remained the same or similar as they were in 2020.

180. We accept Ms Sten’s and Mr Gardiner’s evidence set out above that they saw the a weighted lap pad, a quite space in the classroom and access to a quite space provided to the student in 2021.

181. The quite space at break times was moved from the front office to the library for some time in 2020. We consider that GKX was aware of the change and there were good reasons for the change in location. The quite space was moved back to the office during the Covid periods as the library was closed for some of this time.

182. GKX’s argument in regard to adjusted curriculum to cater for the student’s giftness and interests was that it was not provided by the school until she made the complaint to the Department following the incident on 12 October 2021 and not that the school removed this adjustment in the beginning of 2021 school year.

183. There was no evidence that during the 2021 school year alternative methods of assessment such as oral assessment, scribing or voice to text were unilaterally removed by the school or that SLSOs were instructed to force the student to practice handwriting.

184. GKX has failed to satisfy the Tribunal that as a matter of fact these adjustments were removed during the complaint period and this allegation is dismissed.

Allegation 2

185. GKX asserted that she was told on numerous occasions by various school staff that there was less support for the student in 2021, particularly during the period of Covid-19.

186. The respondent relied on the timetabling for SLSO’s prior to and during the complaint period that demonstrated that there was no real change to the supports in place.

187. However the applicant has failed to prove that as a matter of fact SLSO support was reduced in 2022 and this allegation is dismissed.

Allegation 3

188. Having heard both Ms Allen and GKX give evidence and be cross examined in regard to this incident, we prefer the evidence of GKX. GKX’s memory of the conversation was much clearer than that of Ms Allen. GKX recorded the content of the conversation in contemporaneous documents on the following day on 19 October 2021. The contents of the two documents are in similar terms.

189. We also have some concerns as to which parts of the evidence Ms Allen remembered independently and which aspects she relied on based on her conversation with Ms Manning.

190. We also take into account that Ms Allen’s memory as access to the quite space at break times being moved from the front office to the library. Ms Allen’s evidence was that this was not her decision, which was contrary to the evidence of Mr Gardiner that it was Ms Allen that determined to move the student’s quite space. We prefer Mr Gardiner’s evidence as he had a clear account of the issue, which he set out in his statement.

191. Ms Allen stated that she did not have a clear recollection of the conversation and did not recall the words used. This is understandable, considering that this conversation occurred over 3 years ago, Ms Allen subsequently moved to another school and recently retired. Ms Allen made no notes about the content of the phone call.

192. We consider that Ms Allen’s conduct on 12 October 2021 was in many ways regrettable and the consequences for the student and GKX were very negative. Ms Allen stated that she apologised many times to GKX, although there was no evidence as what the apology was for and in what circumstances. Despite the fact that we consider Ms Allen’s conduct to be regrettable, it is not a matter before the Tribunal. The real and only question is whether the conduct was discrimination. As such we deal with each allegation in turn and consider why Ms Allen said what she did.

193. First, we identify the actual circumstances attending the treatment given to student. Secondly, we examine, how, in those circumstances the school would have treated a student without the student’s disability or characteristic that appertains generally to persons who are autistic or a characteristic that is generally imputed to persons who are autistic. Thirdly, if where the treatment was less favourable than the treatment that would be given to a person without the disability, we consider whether this was because of student’s disability or characteristic that appertains generally to persons who are autistic or a characteristic that is generally imputed to persons who are autistic; Purvis [222]-[225]. The second and third questions can be dealt with together by asking “why” the respondent acted as it did; Purvis [223]-[224], [236].

194. The objective features that surrounded the actual treatment were that the student in year 2 refused to comply with a direction from a teacher to give back an iPad.

195. There are numerous other objectives features surrounding the actual treatment. These include the fact that the student had adjustments for teaching and learning based on the student’s personal learning and support needs.

196. The student was known to become heightened quite quickly. The incident happened during the Covid-19 lockdown where there was a skeleton of staff at the school, a much smaller cohort of students and much of the school facilities such as the library was not available.

197. In evaluating the evidence before the Tribunal we consider that Ms Allen telephoned GKX because she wanted her to take the student away from the school because the student was not following the teacher’s instructions.

198. The student was playing a game or watching a video on YouTube on the iPad provided by the school that permitted students to access YouTube.

199. We accept that Ms Manning brought the student to Ms Allen’s office because the student did not abide by Ms Manning’s direction. We note that GKX’s evidence was that the student told her that Ms Manning brought her to Ms Allen’s office and was present during the telephone conversation for some of the time.

200. We reject the assertion put to GKX during cross examination and some of Ms Allen’s evidence during cross examination that this was a “critical incident” or that there was an imminent risk to the safety of the student, other students or teachers.

201. There was no suggestion that the student exhibited any inappropriate behaviour at school on 12 October 2021 apart from refusing to comply with a teacher’s direction which is in itself serious. We reject the respondent’s submission that the student was having a “meltdown”.

202. It is also relevant to repeat here that Ms Allen was aware that the student was prone to not follow instructions, had great difficulties in all social situations, required a highly structured environment and had significant difficulties in regulating her emotions and did display aggressive behaviour if over stimulated as she signed off on the funding application for the student and gave evidence that she was broadly aware of these behaviours.

203. We do not consider the fact that Ms Allen telephoned GKX to pick up the student this to be conduct on the ground of the student’s disability or less favourable treatment 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. We consider that Ms Allen would have called a parent of a student without the student’s disability or characteristic that appertains generally to persons who are autistic or a characteristic that is generally imputed to persons who are autistic.

204. As to the words or the words to the following effect said by Ms Allen during the conversation;

1. consider suspending the student for her behaviour;

2. staff have tried everything and have given up on the student;

3. GKX should tell [the name of the student] to behave;

4. Ms Allen would have trouble finding someone willing to be the student’s teacher in year 3;

5. Ms Allen cannot have [the name of the student] destroying a class and that any class she is put in she will destroy; 

6. [the name of the student] will need to behave to be accelerated; 

205. We find that Ms Allen would have made the same or similar comments to a parent whose child refused to give back an iPad to a teacher when it was sought because on an objective basis we find that Ms Allen’s genuine reason was the concern that the student was misbehaving and had misbehaved in the past.

206. As was noted in Purvis [113] - [114] by McHugh and Kirby JJ in dissent, the need for a comparator is problematic, particularly in disability discrimination where the focus is on difference. Following the decision in Purvis, the Disability Discrimination Act was amended to explicitly place a positive duty on persons to provide reasonable adjustments, no such amendments have been made to the Anti-Discrimination Act.

207. Despite our finding that Ms Allen was aware that the student was on the day and in the past acting and behaving because of the disability, the comparator analysis set out in Purvis requires the Tribunal to compare how Ms Allen would have acted where there was a student who had the same behaviours that arose without the student’s disability; Purvis [225] (Gummow, Hayne and Hayden JJ, Gleeson CJ and Callinan J agreeing)

208. As to the words or the words to the following effect;

1. there are plenty of autistic kids in the school and they know how to behave, while [the name of the student] did not.

2. the problem with [the name of the student] is that she does not have empathy.

209. We find that Ms Allen would not have made these comment to a parent whose child refused to give back an iPad to a teacher when it was sought. We find that Ms Allen made these comments in reference to the student’s disability.

210. We are satisfied that Ms Allen was aware that the student had or that she presumed that the student was diagnosed with autism spectrum disorder as at 12 October 2025 and that there was less favourable treatment on the ground of disability.

211. We are satisfied that Ms Allen considered that a lack of empathy was a characteristic that appertains generally to persons who are autistic or a characteristic that is generally imputed to persons who are autistic. We are satisfied that Ms Allen considered that the student had that characteristic.

212. We consider that Ms Allen’s comments were on the ground of the student’s disability. It was less favourable treatment in the same circumstances, or in circumstances which are not materially different, the respondent would have treated a person who did not have the student’s disability.

213. As to the aggressive and hostile tone we cannot make the inference that Ms Allen adopted such a tone because of the student’s disability as it is just as probable on the evidence that Ms Allen’s tone was aggressive and hostile in response to GKX’s concerns and inquiries about the school’s lack of support for the student or that she was angered because GKX did not immediately agree to come and collect the student. 

214. A finding of discriminatory conduct under s 49B is not unlawful unless that conduct also contravenes s 49L Waters at 392 (Dawson and Toohey JJ). We find the conduct does contravene s 49L(2)(c) because Ms Allen’s conduct as a whole, some of which included discriminatory conduct was a reason why the student did not continue with schooling and refused to return to school following this day for some time and was ultimately enrolled in Sydney Distance Education.

215. We consider that objectively assessed the student, who was seven years old at the time would have understood Ms Allen’s conduct to be punitive as it was conveyed that she may not be able to attend school next year as no teacher would be prepared to teach her, that teachers had given up on her, that she was deficient because she had no empathy and did not know how to behave. We also consider that the conduct may constitute a denial or a limitation of a benefit associated with education as the student was entitled to feel supported and cared for by the school.

216. We note here the respondent’s policy statements on inclusive education for students with disability and commitment to people with disabilities which makes the following statements:

1. All students with a disability are entitled to enrol in their local government school if they are eligible to attend;

2. All students with a disability are supported by reasonable adjustments and personalised support so that they are engaged and learning to their fullest capability;

3. In line with the Disability Standards for Education 2005, all staff must develop and implement strategies to prevent harassment, discrimination and victimisation of students with disability;

4. Principals lead and oversee school staff compliance with the policy and promote model and embed inclusion in school practice and culture; and

5. Principals seek support and advice on complex issues relating to inclusion from the Learning and Wellbeing Coordinator or Directors, Education Leadership.

217. We consider that Harrison J’s finding at [34] in A v Director-General that being in a learning environment where discrimination is tolerated is “detriment” is apposite.

Orders of the Tribunal

218. Section 108 (2) gives the Tribunal discretion to make orders where a complaint in whole or in part is substantiated. The Tribunal has found that complaint or allegation 3 to be substantiated in part.

219. The respondent’s submission was that even if the Tribunal finds the complaint substantiated it should not make an order pursuant to s 108(2) of the Act because there is no evidence “that there was any loss or damage suffered by reason of the respondent’s conduct”.  

220. It is correct that there was no evidence from the student, who is currently about eleven years of age. Nor was there any medical evidence as to the impact on the student’s mental illness. However we consider that we can consider for ourselves how the student may have felt and reacted to hearing the statements Ms Allen made about her, as well as the consideration of objective records such as the attendance records and medical certificates. We also see no proper reason why we would reject GKX’s direct evidence of her observations of the student and the hearsay evidence as to what the student did and say to her.  

221. Generally speaking, damages are designed to place an applicant in a position in which they would have been if there had not been an act of discrimination. This is a difficult assessment. We consider that had it not been for Ms Allen’s conduct on 12 October, the student would have continued attending the school with the same attendance record as previously. We consider that the student would have remained enrolled at the school and would not have enrolled in Sydney Distance Education. Ms Allen’s conduct on 12 October caused or contributed to the relationship breakdown between the school and the student.

222. There is no evidence to suggest that the student would have become heightened and distressed had she been permitted to play the game or look at a video on YouTube on the iPad up to 3 pm on 12 October 2021. We accept GKX’s evidence that Ms Allen telephoned her close to 3 pm.

223. We accept GKX’s evidence which is consistent with the respondent’s evidence and submissions that she was a parent who actively sought to be involved in her daughter’s education and was seeking to meet and discuss her daughter’s needs with the school and the medical team.  We consider that she would have welcomed the discussion with Ms Allen and others about reducing screen time for the student during the school. Because the manner in which the conversation on 12 October spiralled out into an argument in front of the student, this opportunity was destroyed. GKX asserted that following 12 October the school made no attempts to engage with her about the issues Ms Allen raised during the telephone conversation that could have led to improvements for the student at school.

224. GKX’s complaint email to the Department about Ms Allen’s conduct on 12 October and other conduct by the school was written shortly after the incident on 1 November 2021.

218. In the email, GKX voiced her serious concern as to how Ms Allen could have permitted the student to be present during the telephone conversation and that someone in her position and with her knowledge of the student’s disabilities could not understand the need to shield the student from overhearing this type of discussion.

219. GKX’s evidence was that when she picked up the student, she told her that she was hungry and thirsty. The lunchbox was untouched. In light of the obligations on the school to “protect the young and vulnerable” Purvis [7], a student in year 2 there is concern that the school did not provide the care and protection it was charged with on this day. GKX states that the fact that the student had not eaten all day may have been the cause or contributing cause of the conduct, yet Ms Allen did not consider inquiring about the student’s well being when she was brought to her. GKX stated that it was well known that the student had self care challenges at school.

220. We agree with GKX’s assessment that being sent to Ms Allen’s office would have felt like a punishment for the student. Ms Allen agreed that she said words to the effect that staff had tried everything but could not manage the student, she did not know if she could find a teacher for the student and that people with autism have no empathy. We also agree with GKX that Ms Allen could have had a conversation with GKX without the presence of the student. The student could have been taken back to the classroom for example.

221. GKX stated that when the student came home, she said to her that she “quit school” and “that is not my school anymore” and refused to speak about school for two weeks and:

… displayed very distressed behaviour including rocking, self soothing, hitting himself on the head, aggression, regression in verbal expression, sleep problems, clinginess, stomach aches, being over sensitive to criticism. His level of distress is such that since this incident he has not been able to productively engage with his psychologist and occupational therapist during this time. This incident has seriously damaged his relationship with school and also his mental health. He is now displaying a high level of anxiety in general and about school in particular.

229. GKX considered that the student was “devastated, emotionally shut down and with his sense of belonging” to the school, “shattered”, and:

I am concerned about the lack of understanding of [the name of the student]’s disability and lack of willingness to collaborate with me in supporting him. It’s not helpful to shame or punish [the name of the student] for his disability …

230. We take the following material from the school records; the student returned to school on 10 November 2021, 30 November 2021, 14 March 2022, 28 March 2022. On 1 April 2022 the student was enrolled in Sydney Distance Education.

231. We accept GKX’s evidence in regard to what the student said to her and what she observed of her child and the decision to enrol the student in Sydney Distance Education because the relationship with the school had broken down. We make no finding about the student’s medical condition but accept that the student’s feelings would have been deeply hurt by hearing the conversation.

232. The task of assessing damages for non-economic loss is a difficult one but this difficulty can not lead to the loss or damage being ignored; Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82; 223 FCR 334 [94] (Kenny J); Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Ltd  [2021] NSWCATAD 107; Hall v A & A Sheiban Pty Ltd [1989] 20 FCR 217 [543] (Wilcox J).

233. In Richardson, the Full Federal Court considered the assessment and awarding of damages in a sexual harassment case. We consider that the principles apply equally to other areas of discrimination law.  In Richardson, Besanko and Perram JJ stated that an award of damages should be determined by “having regard to the nature and extent of the person’s injuries and prevailing community standards…” [81], [95] - [118] (Kenny J). 

234. The presence of multiple factors giving rise to a specific form of loss or damage will not bar a victim of disability discrimination from recouping compensation for the part which the contravening conduct played in that loss; Richardson [69] (Kenny J); Yelda [255], [268]; State of New South Wales (Department of Justice - Corrective Services) v Huntley [2017] FCA 581 [238] (Perry J).

235. The Tribunal is satisfied that the student has demonstrated that the loss or damage she has suffered was caused by the respondent’s unlawful conduct, whether in whole or in part.

236. GKX  also sought orders pursuant to s 108(2)(b), (c) and (d) of the Act. We note that the respondent has indicated in writing that it was willing to amend the student’s Sentral records. This seems like a sensible course.

237. We consider the most appropriate way to address the hurt and distress caused is by an award of damages. The Tribunal finds that taking into account the particular circumstances before the Tribunal in regard to the unlawful conduct on 12 October 2021, the appropriate award for hurt and distress is $15 000.  

Orders

238. The Tribunal makes the following Orders:

1. The complaint is substantiated in part.

2. The remainder of the complaint is dismissed.

3. The respondent is to pay GKX obo her child HCU damages of $15 000 by way of compensation for loss or damage suffered by reason of the Respondent’s conduct.

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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

Decision last updated: 30 June 2025