Hashish v Minister for Education of Qld

[1996] QSC 38

IN THE SUPREME COURT

OF QUEENSLAND

No. 1027 of 1996
Brisbane

Before Mr Justice Ambrose

[Hashish v. Minister for Education of Qld]

IN THE MATTER of an Appeal from the Anti-Discrimination Tribunal at Brisbane pursuant to S.217 of the Anti‑Discrimination Act 1991

- and -

IN THE MATTER of an Appeal from the Interim Order granted in the Complaint of DEAN HASHISH ("the Complainant") against THE MINISTER FOR EDUCATION OF QUEENSLAND ("the Respondent") in Anti‑discrimination Tribunal No. Misc 11 of 1995

REASONS FOR JUDGMENT - B.W. AMBROSE J

Judgment delivered 20/03/1996

CATCHWORDS:     ANTI DISCRIMINATION ACT 1991 - EDUCATION (GENERAL PROVISIONS) ACT 1989 - Appeal from interim order of Anti-Discrimination Tribunal - statutory interpretation.

Counsel:  J.E. Gallagher Q.C. and E.J. Morzone for appellant
  P. Connor for respondent

Solicitors:  Crown Law for appellant
  Welfare Rights Centre for respondent

Hearing date:               27 February 1996

IN THE SUPREME COURT

OF QUEENSLAND

No. 1027 of 1996
Brisbane

Before Mr Justice Ambrose

[Hashish v. Minister for Education of Qld]

IN THE MATTER of an Appeal from the Anti-Discrimination Tribunal at Brisbane pursuant to S.217 of the Anti‑Discrimination Act 1991

- and -

IN THE MATTER of an Appeal from the Interim Order granted in the Complaint of DEAN HASHISH ("the Complainant") against THE MINISTER FOR EDUCATION OF QUEENSLAND ("the Respondent") in Anti‑discrimination Tribunal No. Misc 11 of 1995

REASONS FOR JUDGMENT - B.W. AMBROSE J

Judgment delivered  20/03/1996
This is an appeal on a question of law against an interim order made by the Anti‑Discrimination Tribunal pursuant to s.144 of the Anti-Discrimination Act 1991. The appeal is brought pursuant to s.217 of the Act.
           The applicant for the order made on 9 January 1996 was Dean Hashish an 18 year old man born on 5 March 1977. He is now 19 years of age.
           The appellant is the Minister for Education of Queensland the respondent to that application.
           The relevant facts may be stated shortly -
           The appellant is blind and deaf and has not reached a stage of development normal for his age.
Since 1983 he has been enrolled at the Narbethong School for Visually Handicapped at Buranda. Prior to his 18th birthday the applicant came within the description "disabled person" under s.3 of the Education (General Provisions) Act 1989.
Narbethong School for the Visually Handicapped is a "special school" as defined under s.3(1) of that Act.
           The Minister for Education determined that the applicant should no longer attend the special school upon his attaining the age of 18 years.
           It is the contention of the applicant that this determination was contrary to the Anti‑Discrimination Act 1991 because it was made having regard only the fact that the applicant had attained the age of 18 years and therefore came within the statutory prohibition of discrimination under s.7(1)(f) the Anti‑Discrimination Act 1991.  For the Minister of Education it is contended that his determination did not come within that statutory prohibition because it was necessary to make it to comply with the provisions of the Education (General Provisions) Act 1989 or alternatively that it was specifically authorised by that Act.
           The order made by the tribunal was of an interim nature prohibiting the Minister from preventing the applicant from attending the Narbethong School for the Visually Handicapped or from continuing to receive appropriate special education at that school pending resolution of the complaint.
           The short point taken on behalf of the Minister for Education is that the specific provisions of the Education (General Provisions) Act 1989 authorise, if indeed do not directly require, him to prohibit the attendance of the applicant at the special school upon his attainment of his 18th birthday.
           Because the matter involves simply a construction of the statute, I will refer briefly to what appear to be the relevant provisions.
           Under the Education (General Provisions) Act 1989, s.13 provides:

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

Under s.3 of the Education (General Provisions) Act 1989, "State School" is defined to mean, inter alia, "a special school".
           Under that section, "special school" is defined to mean "a school providing special education".
           Under that section, "special education" means "educational programs and services appropriate to the needs of a disabled person that are additional to or otherwise different from education programs generally available to persons of that age who are not disabled persons".
The critical provision of the Act for consideration is s.3(3) of the Education (General Provisions) Act 1989, which provides:

"(3). A person who has not attained the age of 18 years and who, in the opinion of the Minister, is unlikely to attain those levels of development of which the person is capable unless the person receives special education, is a disabled person for the purposes of this Act."

Under s.57 of the Education (General Provisions) Act 1989 it is provided, inter alia:

"(57) Every parent of a child being of the age of compulsory attendance shall cause that child -

(a)to be enrolled at a State school; or

...

and to attend on every school day the State ... School ..."

Under s.3(1) "age of compulsory attendance" is defined to mean "not less than 6 nor more than 15 years of age".
Under s.12(1) of the Education (General Provisions) Act 1989 it is provided:

"For every student attending a State educational institution established pursuant to section 13, ... there shall be provided a program of instruction in such subjects and of such duration as the Minister approves that -

(a)has regard to the age, ability, aptitude and development of the student concerned;

(b)is an integral element within the total range of educational services offered with the approval of the Minister first had and obtained;

(c)takes account and promotes continuity of the student's learning experiences;

(d)recognises and takes account of the nature of knowledge;

(e)has regard to whether enrolment is compulsory or non-compulsory."

In her reasons for making the interim order sought by the applicant, the Tribunal member observed:

"Mr Gallagher for the respondent says that the Education (General Provisions) Act limits the provision of special education to persons under the age of 18 and that Dean is therefore not entitled to remain at Narbethong which is a special school ...

Insofar as Dean is to be considered as an ordinary student, the Minister has made his decision under s.12(1) to provide no further program of instruction. This is a decision which the Minister is authorised to make and constitutes on that argument an exemption under s.106 of the Anti-Discrimination Act ... 

I am not convinced that it follows that because Dean is no longer a disabled person within the meaning of s.3(3) of the Education (General Provisions) Act that special education cannot be provided to him and that he cannot attend a special school.

The Act while describing 'special education' as 'educational programs and services appropriate to the needs of a disabled person' does not appear to restrict its provision to such persons nor does there appear to be any prohibition on the attendance of other than disabled persons in special schools.  I do not therefore consider this is a question of law which has clearly to be decided against the applicant."

For the applicant, it is contended that he has been discriminated against on the grounds of his age (s.7(1)(f) and perhaps (h) of the Anti-Discrimination Act) and contrary to the express prohibition contained in s.39 of that Act, by denying him the benefit arising from his enrolment at Narbethong School.  For the appellant it is contended that the Education Act limits the provision of special education to persons under the age of 18 years and the applicant therefore is not entitled to remain at the special school.
           It is contended on behalf of the appellant that the express terms of the Education (General Provisions) Act 1989 make it quite unnecessary for the tribunal to embark upon the hearing of evidence involving inter alia the educational needs of the applicant, and a consideration of special schools and the consequent availability of such facilities for persons who, although by definition not coming within the category of "disabled person" dealt with in the Education Act nevertheless could benefit from attendance beyond the age of 18 years.
It is unclear to me just why the exercise of ministerial discretion under s.12(1) of the Education Act to provide no further education to the applicant as "an ordinary student" may come within the exception to discriminatory acts within s.106(1) of the Anti‑Discrimination Act 1991 and yet the exercise of a similar discretion with respect to the provision of further education to "a disabled person" does not come within that exception.
One may have thought that s.12(1) of the Education Act specifically authorises the Minister to have regards to the age, ability, aptitude and development of students in fixing upon "the duration" of the program of instruction provided under s.13 of the Act.
Undoubtedly the Minister has a discretion to determine the duration of a program of instruction for students - whether those students be ordinary or disabled persons. Under s.57, parents of children between the ages of 6 and 16 must have their children enrolled at either a State or non-State school.
           In my view, to construct the legislation so as to prohibit the Minister for Education from limiting the provision of programs of instruction within State educational institutions by reference to the age of persons who may receive that instruction by reference to the very general tenor of s.7(1)(f) and/or (h) of the Anti-Discrimination Act 1991 would be to impose a very heavy burden on the State education system with respect to the provision of educational facilities and to the funding of them.
In my view, s.12(1) of the Education Act specifically authorises the Minister to limit the duration of a program of instruction provided at a State educational institutional and to have regard for that purpose to the age, ability, aptitude and development of students concerned.
In my view, s.12(1) of the Education Act does come specifically within s.106(1)(a) of the Anti-Discrimination Act 1991.
           Upon its clear wording the Education (General Provisions) Act 1989 limits the category of "disabled person" for whom special education may be provided by the Minister for Education to persons who have not attained the age of 18 years.  The Minister has no discretion to provide instruction at a "special school" for a person over the age of 18 years.  In my view the observations as to the effect of s.39(3)(ii) of the Equal Opportunity Act 1984 (Vict) in Waters v. Public Transport Commission (1991) 173 CLR 349 must be viewed in this light.
The authority given to the Minister to enrol as a student persons outside the age of compulsory attendance does of course authorise him to provide education at a State educational institution for persons whether disabled or not who have attained the age of 18 years. That general power, however, in my view is constrained with respect to the provision of "special education" by the express provisions of s.3(3) of the Act. Once a person attains the age of 18 years he ceases to be a "disabled person" for the purpose of the Education (General Provisions) Act 1989 and the Minister is specifically required by virtue of the definition of "disabled person" under s.3 of the Act to refrain from providing special education at a special school to a person beyond the age of 18 years.
           There may well be a need for the provision of programs of instruction for persons with the infirmities and developmental problems of the applicant beyond the age of 18 years.  The evidence suggests a lack of such a provision at the present time by any state instrumentality.  In my view, however, it would be mischievous to construe the Education (General Provisions) Act 1989 and the Anti-Discrimination Act 1991 in such a way as to prohibit the limitation of the duration of instruction for persons suffering a disability beyond the age of 18 years in a State educational institution when the provision of special education is considered in the context of the Education (General Provisions) Act 1989 which contemplates the provision and regulation of pre-school, primary school,  and secondary school education and which contemplates compulsory attendance of children between the ages of 6 and 15 years of age and the provision of special education for persons who have not attained the age of 18 years.
Section 12(1) contemplates and authorises the Minister to determine from time to time the duration of education having regard to the age, ability, aptitude and development of students involved and no doubt the provision of programs of instruction and education at State educational institutions to persons of different ages requires a discrimination from time to time based upon age and impairment (as defined in s.1 of the Anti-Discrimination Act 1991) if a socially acceptable apportionment of educational resources is to be made between different groups in the community.
           In my view the applicant is not and was not at times material to his application a "disabled person" for the purposes of the Education (General Provisions) Act 1989. It follows that the Minister for Education was not empowered under that Act to provide special education for him at Narbethong School for Visually Handicapped.  A contrary conclusion would lead to the extraordinary consequence that persons with the applicant's disability, whatever be their ages, would compete with children with similar disabilities for access to special schools, which doubtless the Minister provides for instruction of "disabled persons" as defined for the purposes of the Act.
The Minister for Education is empowered to provide for the applicant a program of instruction at some other State educational institution subject to such constraints based on age, ability, aptitude and development as may be specifically authorised by s.12(1)(a) of the Education (General Provisions) Act 1989.
           I hold therefore that the legislative intent of the Education (General Provisions) Act 1989 is that special education be provided in a State educational institution to persons whose age does not exceed 18 years.
           The applicant at all material times was not a "disabled person" for the purposes of the Education (General Provisions) Act 1989.  The special education at Narbethong Special School is statutorily restricted to "disabled" students within the meaning of the Education (General Provisions) Act 1989.  Because the applicant is above the age of 18 years he has no lawful authority or excuse to be on the premises of  Narbethong School for the Visually Handicapped.  I quash the interim order under appeal made by the Anti‑Discrimination Tribunal in No. Misc 11 of 1995 on 9 January 1996.