Hashish v Min for Education Qld

[1997] HCATrans 353

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B11 of 1997

B e t w e e n -

DEAN HASHISH

Applicant

and

THE MINISTER FOR EDUCATION OF QUEENSLAND

Respondent

Application for special leave to appeal

GAUDRON J
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 5 DECEMBER 1997, AT 11.03 AM

Copyright in the High Court of Australia

MR D.P. O’GORMAN:   If the Court pleases, I appear for the applicant. (instructed by N. Sharma, Welfare Rights Centre Inc)

MR P.A. KEANE, QC:   If the Court pleases, I appear with my learned friend, MR E.J. MORZONE, for the respondent. (instructed by K.M. O’Shea, Crown Solicitor for Queensland)

GAUDRON J:   Thank you.

MR O’GORMAN:   The most important matter in this application is what effect does anti‑discrimination and equal opportunity legislation have on the power of the respondent Minister, the Minister for Education, to exclude impaired persons from attending special schools upon the age of 18 years.

GAUDRON J:   That is not the question at all, is it?  The question is whether the Minister was doing that which he was required to do under the Education Act when he excluded him?  That is the only question that arises, is it not?

MR O’GORMAN:   Yes, your Honour, but in determining that one must look at what effect section 106 of the Anti‑Discrimination Act has in the context of the anti‑discrimination legislation generally and, in particular, in relation to section 101 of the Anti‑Discrimination Act  which prevents discrimination in the administration of State laws and programmes areas generally.  So, on the one hand, you have at section 106 which ‑ ‑ ‑

GAUDRON J:   Which is clear enough, is it not?

MR O’GORMAN:   Yes, it certainly is, but the difficulty arises ‑ ‑ ‑

GAUDRON J:   And you cannot succeed, can you, if the Minister was obliged to exclude the applicant to comply with the Education Act?

MR O’GORMAN:   Yes, your Honour.  The question that arises, though, is what effect section 101 of the Anti‑Discrimination Act has in that whilst in the Education Act the Minister had certain obligations in relation to the exclusion of impaired persons upon reaching the age of 18 years ‑ ‑ ‑

GAUDRON J:   Do you accept that?  Are you making this application on the basis that the Court of Appeal was correct in its construction of the Education Act?

MR O’GORMAN:   No, the application is made on the basis that the Court of Appeal should have gone one step further and looked at, for example, the effect of section 101 of the Anti‑Discrimination Act which prevents discrimination in the administration of State laws and programmes area generally.

GAUDRON J:   Why do you concede that it was correct in relation to the Education Act?

MR O’GORMAN:   Well, I concede the meaning of the plain words in relation to section 106, but it is my submission that that is not the end of the matter; that whilst the Minister had certain obligations upon him under the Education Act and, in particular, sections 37 to 39 ‑ ‑ ‑

GAUDRON J:   What obligations were they?

MR O’GORMAN:   I am sorry, your Honour, I have got the wrong sections there.  He had an obligation to exclude students upon their reaching the age of 18 years from ‑ ‑ ‑

GAUDRON J:   Why do you say that?

MR O’GORMAN:   Well, pursuant to, in particular, section 12(1) of the Education (General Provisions) Act - now, that provides for education generally, and then special education is then provided in subsection (2), and it provides that special education may be provided for by the Minister.  However, it is my submission that it was not compulsory for the Minister to exercise his powers under the Education(General Provisions) Act.  It was not compulsory, it was a discretionary matter, and it is in that regard that one then turns to have a look at the effect of section 101 which, as I have already indicated, applies to the performance of functions, exercises and powers under State laws and programmes.        It is my submission that that particular section also applies to the Education Act, with the result that section 101, along with section 3, also, of the Anti-Discrimination Act, which binds the Crown, makes it clear ‑ ‑ ‑

McHUGH J:   Where can I find a copy of section 101, because it was not provided in the materials.

KIRBY J:   As usual, we get a collection of materials that does not have the section you are concentrating on.  It has got 106 and 144, but not 101.  I do not know who throws these books together.

MR O’GORMAN:   Perhaps if I could read it.  It is a relatively short section:

A person who -

(a)  performs any function or exercises any power under State law or for the purposes of a State Government program; or

(b)  has any other responsibility for the administration of State law or the conduct of a State government program;

must not discriminate in -

(c)  the performance of the function; or

(d)  the exercise of the power; or

(e)  the carrying out of the responsibility.

That is the totality of section 101.

KIRBY J:   What is your answer to Justice Gaudron’s question as to where the power comes to effectively expel a person after they reach the age of 18 or do you submit that there is no such power?  I mean, it is one thing to say you do not have to do it beyond, but it is another question as to whether you have to remove a person who has reached 18 unless Parliament expressly says so.

MR O’GORMAN:   Your Honour, I can only take you to the general power which probably does not answer the question, namely, section 13 of the Education (General Provisions) Act, which merely provides that:

The Minister may establish, maintain and carry on State schools that the Minister considers necessary.

That in conjunction with section 12(2), which provides that:

Special education may be provided or contributed to by the Minister for every disabled person who is of the age of compulsory attendance and who is enrolled in a non‑State school or is receiving instruction by any other means whatsoever approved by the Minister for the purpose.

GAUDRON J:   Where do we find out the meaning of “age of compulsory attendance”?

MR O’GORMAN:   The first definition in section 3(1) is that of:

“age of compulsory attendance” means not less than 6 nor more than 15 years.

The definition of “student” in the same subsection is:

a person who is a student in accordance with subsection (4).

Which then provides:

A person enrolled in a school or enrolled or registered in any other educational institution, or a person who, in the opinion of the Minister, is a student, is a student for the purposes of this Act.

KIRBY J:   Does this mean that on Justice McPherson’s theory that the Minister is misusing public funds by keeping your client in education beyond the age of 15 up to the age 18?

MR O’GORMAN:   Whether the use of the term “misusing” is the correct one, I do not know, however, the concept is certainly a correct one, in my submission, that if, as the respondent contends, impaired persons must cease education at the age of 18 years, then the continuing provision of education for the applicant in these proceedings in the manner that was done was certainly not in accordance with the legislation if the interpretation of the legislation that, at least on my reading of the submissions of behalf of the respondent is correct, then there is certainly that difficulty associated with the past behaviour of the Minister.

McHUGH J:   No attention seems to have been given whatever to 101 in the Court of Appeal.  Was there any argument put about it?

MR O’GORMAN:   I have not seen a copy of the transcript, your Honour.  I cannot assist you there.  I was not the counsel appearing in that particular matter so I cannot assist in that regard.

KIRBY J:   Was it referred to in the tribunal - Commissioner Holmes?

MR O’GORMAN:   I would not like to comment with certainty on that one, your Honour.  I did appear before the tribunal.  It is certainly my understanding, but I would put it no higher than that.  It is almost two years ago now.

KIRBY J:   Well, glancing through his reasons, he does not appear to refer to section 101.  The reasons are on page 10 of the application book.

MR O’GORMAN:   No, she certainly does not deal with it there.  But, in my submission, that could well be because she did not feel she needed to go that far, having determined that the stay order should be granted purely in relation to the interpretation of section 106, amongst others.  Consequently, did not need to go and look at what effect, if any, section 101 would have.  So, in my submission ‑ ‑ ‑

KIRBY J:   Is that a matter that you could reventilate before the tribunal if you were unsuccessful here?

MR O’GORMAN:   In my submission, certainly.

KIRBY J:   Why is not that - if you do not run these things, why should we bother to find them and rescue them at the last death knock, instead of your having to run these things before the tribunal at first instance.

MR O’GORMAN:   Well, with respect your Honour, what I have indicated is I am not prepared to say with certainty that I did, in fact, raise that particular issue before the tribunal.  What I then follow up and say is that the fact that she has not mentioned it in her reasons does not in itself indicate that it was not raised in that she found on the basis of the section 101 aspect that the stay order should be granted.  I certainly do not concede that it was not raised.  But, on the other hand, I certainly will not state categorically that it was.

GAUDRON J:   Your other problem, Mr O’Gorman, is this, that I am looking at your draft notice of appeal and the whole of that document is given over to the interpretation of provisions of the Education Act, not section 101.

MR O’GORMAN:   I would have to concede that, your Honour, yes.

GAUDRON J:   And as are the written submissions?

KIRBY J:   This is one of the oddest special leave applications I have sat in.  The matter you are arguing is section 101.  It was not raised in the tribunal; was not raised in the Court of Appeal - now that is not all that unusual, but you do not provide the section, although you provide lots of other sections, and it is not in the ground of appeal.

GAUDRON J:   Or in the reasons why special leave should be granted.

KIRBY J:   This is a shame, because this is an important case for the applicant. 

MR O’GORMAN:   With respect, your Honours, reference is made in the summary of argument to section 101, if I could take you to page 6, under the heading “The construction of the Anti-Discrimination Act and the Education Act.”

GAUDRON J:   Page 6 of what?

MR O’GORMAN:    The applicant ‑ ‑ ‑

GAUDRON J:   Page 6 of what?

MR O’GORMAN:   Sorry, page 70 of the application book, page 6 of the applicant’s summary of argument, I am sorry, under the heading “In the construction of the Anti-Discrimination Act and the Education Act”, the fourth bullet point.  Reference is made to that.  What is to occur when there is ambiguity in this manner, the reference is to Waters. 

KIRBY J:   It is possible that in the tribunal and court below section 101 was just taken as a given, as being the foundation by which State officials and Ministers should not discriminate, and that they went on then from that to look at the particular operation of the legislation.

GAUDRON J:   The argument is, in any event, untenable, is it not?  Section 101 is a prohibition on discrimination.  You then go to the heading of Part 5, in which you find section 106, which says, “General Exemptions From Discrimination”.  So it is not a question of making the two work together, as it were, it is a question of seeing that section 106 is an exemption.

MR O’GORMAN:   That is correct, your Honour, but section 106 is a general exemption.  One then has to look at the provisions in the Education Act under which the Minister purported to act and determine whether or not he was obliged to act in the manner he did.  If he was so ‑ ‑ ‑

GAUDRON J:   Which you conceded.

MR O’GORMAN:   - - - obliged in section 100 - I am sorry?

GAUDRON J:   Which you conceded, at the beginning of your argument.

MR O’GORMAN:   No, I - sorry, with respect, your Honour, what I - I should say, what I was attempting to do was to say that I concede that the Minister had a discretion to act in the manner that he did, in excluding the student.  He certainly had the power to exercise a discretion in that manner, but it is not so clear that his obligation was mandatory, and hence the reason I then took your Honours to section 101 in an attempt to try and clarify the situation with respect to these relevant provisions. 

In relation to the public importance issue, may I just quickly touch upon that.  It is my submission that it is an important question, firstly because of the importance to the applicant himself, the impaired student but, also, it also touches upon a matter of public importance, in my submission, that being whether the practice of excluding persons or students with impairments from special schools has survived the enactment of the anti‑discrimination and equal opportunity legislation.

KIRBY J:   What has happened to the applicant?  Has the applicant continued?  There was a stay granted until the Court of Appeal determined the matter?  Has he remained in the school or not?

MR O’GORMAN:   No, he is not in school, your Honour.

KIRBY J:   I see.  So, that from the point of view of this applicant, it is a matter of principle now rather than a matter affecting him personally?

MR O’GORMAN:   Then it would be my submission that if he were to ultimately succeed, it would be more than a matter of principle for him because he would then be able to return and continue with his special education, the education he requires for his special needs.  At the moment ‑ ‑ ‑

McHUGH J:   For how long?

MR O’GORMAN:   Under the legislation that was passed by Parliament on last Thursday, a week ago, he could have another six semesters of education and that is the - - -

KIRBY J:   What, Parliament has now, in Queensland, specifically provided for this sort of case, has it?

MR O’GORMAN:   It has, your Honour, yes.

KIRBY J:   By an Act that is since the Anti-Discrimination Act and it would presumably - - -

MR O’GORMAN:   Yes, by an Act passed by the Parliament last Thursday but has not yet received royal assent.  So, I would have to concede, in relation to that, that it does not have the public importance that it did have at the time of the application for special leave being made in that provision appears - well it appears as though provision will be made for students aged

18 and over with impairments, albeit even if only for a limited period in the manner I have outlined, namely for six semesters.

In the outline, reference is also made to the provisions in the legislation in other States.  That is a general provision only in so far as the legislation in other States is all in its own terminology, there is no total uniformity in relation to that legislation.

However, it is my submission that the educational opportunities available to students attending special schools who attain the age of 18 years could well be determined as a result of any success of the applicant in the ultimate appeal in so far as, even though the legislation has been amended, it has only been amended to a certain extent, namely to provide for education for an additional six semesters.  So, it removes the problem from age 18 to perhaps age 21.

GAUDRON J:   We have extended your time somewhat but I think you have gone well past it now, Mr O’Gorman.

MR O’GORMAN:   Thank you, your Honours.

GAUDRON J:   Yes, Mr Keane.  Could you assist us with the legislation that has not yet been proclaimed?

MR KEANE:   It has not yet been proclaimed, your Honours.  It has been passed but not yet proclaimed.  Your Honours were, I think, provided with a note of the amendments in relation to it in the last couple of days.  You should have been provided with a copy of it, if we can try to assist.

GAUDRON J:   What is the effect of it?

MR KEANE:   The effect of it, your Honours, is that the new definitions of “special education” and “disability”remove any reference to age.  The consequence of that is that the issues of construction before this Court would have no further relevance.  A further effect of the amendment is that every person, regardless of whether that person is a person with a disability, is allocated 24 semesters of State education and extensions to that period of allocation can be granted as an exercise of discretion subject to a limit of no more than a total of six further semesters and the statutory criteria for the grant of those extensions are the same, regardless of whether a person is a person with a disability or receiving special education.

GAUDRON J:   Yes, thank you.

KIRBY J:   So you would say that whatever special leave point was in this case, which you deny, it has been taken away by an Act of Parliament which we can infer will be proclaimed to commence.

MR KEANE:   Yes, your Honours, that is so.  If your Honours want to hear us further in relation to the arguments that have been agitated orally, we can assist you.

KIRBY J:   They do not arise if the legislation has wiped away the problem which would have agitated the Court for a special leave grant.

MR KEANE:   May it please the Court.

KIRBY J:   It would seem Parliament has taken the issue away by specific enactment.

GAUDRON J:   Yes, thank you, Mr Solicitor.  Perhaps Mr O’Gorman should be given an opportunity to reply to what you have just said.

MR O’GORMAN:   The submission I would make is that that is certainly the case in the short term, but the problem still remains in that upon having those additional six semesters of education, the discriminatory effect of even the new Act would be similar to that in the legislation as it was at the time of the application for special leave.

KIRBY J:   Yes, but that would be a matter you could agitate before the tribunal, if necessary before the Court of Appeal, and come up here on the new legislation which is now or will be of general application and that will be the time to look at the matter, not now at a case which concerns legislation which, effectively, has been superseded.  I mean, the issue is a sad one, an important one, but it seems as though the Parliament of Queensland has enacted a legislation which takes away your main argument.

MR O’GORMAN:   It does in relation to students generally but it does not in relation to this particular student in that, on my instructions, he has used up his additional six semesters whilst this matter was proceeding through the court system.  So it is still ‑ ‑ ‑

KIRBY J:   But he has not proceeded under the new legislation.  It may be that he has some entitlements under the new legislation or to challenge the new legislation or to raise the effect of the Anti‑Discrimination Act on the new legislation, but to go back into ancient history would not be something which this Court would normally do just for one student, for one person.

MR O’GORMAN:   I can take the matter no further, your Honours.

GAUDRON J:   Yes, thank you, Mr O’Gorman.  Thank you gentlemen.  Having regard to the legislative developments, this is not a suitable vehicle for the elucidation of any point of principle.  Special leave is therefore refused.

MR KEANE:   Your Honours will appreciate from our outline that we seek no further order.

GAUDRON J:   Yes, thank you, Mr Solicitor.

AT 11.31 AM THE MATTER WAS CONCLUDED