DISCRIMINATION LAW – “requirement or condition” that hearing impaired child be taught in English rather than Auslan, a native Australian sign language – whether ability to “cope” without Auslan assistance meant that child was “able to comply” with “requirement or condition”, pursuant to s 6(c) of the Disability Discrimination Act1992 (Cth) – whether child would suffer “serious disadvantage” without Auslan assistance – whether suffering “serious disadvantage” meant child could not comply with “requirement or condition”
Held: (a) the primary judge erred in finding that an ability to “cope” without Auslan assistance meant that child was “able to comply” with “requirement or condition”; and (b) the evidence showed that child would suffer serious disadvantage without Auslan assistance, and therefore child “not able to comply” with “requirement or condition”, pursuant to s 6(c) of the Disability Discrimination Act1992 (Cth)
TIAHNA HURST (by her next friend GAIL SMITH) v STATE OF QUEENSLAND (acting through EDUCATION QUEENSLAND)
QUD 187 OF 2005
RYAN, FINN & WEINBERG JJ 28 JULY 2006 MELBOURNE (heard in BRISBANE)
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
QUD 187 OF 2005
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT
BETWEEN:
TIAHNA HURST (by her next friend GAIL SMITH) APPELLANT
AND:
STATE OF QUEENSLAND (acting through EDUCATION QUEENSLAND) RESPONDENT
JUDGES:
RYAN, FINN & WEINBERG JJ
DATE OF ORDER:
28 JULY 2006
WHERE MADE:
MELBOURNE (heard in BRISBANE)
THE COURT ORDERS THAT:
1. The appeal be allowed.
2. The orders made by the primary judge be set aside.
3.In lieu thereof there be a declaration that the respondent has contravened s 6 of the Disability Discrimination Act 1992 (Cth).
4.The parties file and serve submissions in relation to any claim for injunctive relief on or before 18 August 2006.
5. The respondent pay the appellant’s costs of this appeal, and below.
Note: Settlement and entry of orders is dealt with in Order 36 of…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Hurst v Queensland [2006] FCAFC 100
Case
[2006] FCAFC 100
Decision Date
CaseChat Overview and Summary
Hurst v Queensland involved the appellant, Tiahna Hurst, who was born deaf and raised in a bilingual environment, using both Auslan and English. She attended various educational institutions from 1999, but her education was primarily at a private institution until 2003, when she attended a state pre-school. The respondent, Queensland, had a policy of Total Communication, which included Auslan and signed English, but Tiahna did not receive Auslan assistance in her education. The issue before the court was whether Tiahna's inability to receive Auslan assistance constituted a contravention of the Disability Discrimination Act 1992 (Cth).
The legal issues centred on the interpretation of the term "able to comply" within the context of the Disability Discrimination Act, and whether Tiahna's inability to comply with the requirement of being taught in English without Auslan assistance constituted a contravention of the Act. The primary judge, Lander J, had found that Tiahna could comply with the requirement to be taught in English, but the appellant argued that the judge had focused on the wrong issues and had not adequately considered the impact of not providing Auslan assistance on Tiahna's educational outcomes.
The court found that the primary judge had erred in his approach to the case by focusing on Tiahna's ability to cope in a regular classroom environment without Auslan assistance, rather than considering the impact of not providing Auslan assistance on her educational outcomes. The court found that there was substantial evidence that Tiahna had suffered serious disadvantage by being denied Auslan assistance throughout the relevant period. The court concluded that the respondent had contravened the Disability Discrimination Act by not providing Auslan assistance to Tiahna.
The court allowed the appeal, set aside the orders made by the primary judge, and declared that the respondent had contravened s 6 of the Disability Discrimination Act 1992 (Cth). The court also ordered that the parties file and serve submissions in relation to any claim for injunctive relief on or before 18 August 2006, and that the respondent pay the appellant's costs of the appeal and below.
Orders
Orders of the court
1. The appeal be allowed.
2. The orders made by the primary judge be set aside.
3. In lieu thereof there be a declaration that the respondent has contravened s 6 of the Disability Discrimination Act 1992 (Cth).
4. The parties file and serve submissions in relation to any claim for injunctive relief on or before 18 August 2006.
5. The respondent pay the appellant’s costs of this appeal, and below.
Background
Background to the litigation
His Honour made very detailed reference to the expert evidence given in this proceeding, and made clear findings on that evidence. He noted that the way in which Tiahna’s case had been presented meant that any discrimination from which she might be found to have suffered must have occurred before 30 May 2002, that being the date upon which a written complaint on behalf of Tiahna was first lodged with the Human Rights and Equal Opportunity Commission (“HREOC”). He referred to s 46PO(3) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”), noting that it provided that an applicant to this Court alleging unlawful discrimination could not rely upon any facts which had not been presented to HREOC. The unlawful discrimination into which the Court could inquire had to be the same as had been the subject of the complaint to HREOC. That meant that Tiahna could not rely upon any facts in support of her claim to discrimination that had occurred after 30 May 2002. This became an important issue in the appeal to this Court, and will be dealt with in detail later in these reasons for judgment.FACTUAL BACKGROUND Tiahna was born on 24 February 1998. She first attended an educational institution administered by the respondent in February 1999. She attended a Special Education Development Unit between 1999 and 2001, and then another education unit in Noosaville between June 2001 and February 2002. For some time thereafter she pursued her education at a private institution, but in 2003 she attended a State pre-school. In the period relevant to the complaint, she obviously had not commenced formal grade school education. Tiahna cannot hear any spoken word, and her speech is affected. Nonetheless, she is able to talk, and is capable of being understood by someone who is close to her, and understands the topics which she is addressing. Her mother is not hearing impaired. However, her maternal grandparents are both profoundly deaf. Her grandparents communicate in Auslan. Tiahna’s mother is bilingual, her first language being Auslan, and her second language being English. Her father’s second language is Auslan. To ensure that Tiahna did not fall behind in her classes her parents arranged for her to attend private speech therapy classes for which they themselves paid. Education Queensland acknowledged that it was obliged to make special provision for the education of people with hearing impairments. It formulated a policy to that effect which was entitled “Total Communication Policy”. That policy was defined in the following terms: “1.1Total Communication refers to a philosophy which states that deaf/hearing impaired students have available to them a variety of methods of communication. It recognises a variety of methods which may be used to facilitate communication, e.g. signs, fingerspelling, lipreading, speech and the use of residual hearing. The emphasis is on the development of communication skills, in particular, the development of language as a basis for all learning.1.2In practice, the term Total Communication has been used to refer to the combining of listening, speech, lipreading, signing and fingerspelling to represent English. This combination should more accurately be known as Simultaneous Communication. Thus staff speak and sign simultaneously in Signed English in order to facilitate the student’s English language development through the visual and auditory channels.”
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Finally, Mr Bain submitted that the fact that Tiahna’s mother harboured the wholly laudable aim of achieving the best possible educational outcome for her daughter, and was deeply disappointed because Auslan assistance was not available, did not mean that the respondent had contravened the Discrimination Act. Tiahna’s case was based upon aspiration. It did not reflect any inability on her part to comply. CONCLUSIONS It is important to note that, as a prelude to Lander J’s finding that Tiahna could comply with the relevant requirement or condition, he referred to the evidence of Mr Morris and Professor Janet Branson to the effect that Tiahna could “cope” in a regular classroom environment without the benefit of Auslan assistance. It was in that context that he observed that she had not fallen behind her hearing peers. It was on the basis of these findings that her case failed. The central issue in this appeal is whether his Honour approached Tiahna’s case on the right basis. That depends upon whether he construed the expression “able to comply” in s 6(c) correctly. Regrettably, in our view, his Honour allowed himself to be distracted by the somewhat unsatisfactory manner in which Tiahna’s case was presented below. Ultimately, this led him to focus upon the wrong issues. In considering questions of parity between Tiahna and her hearing peers, and whether she had the ability to “cope”, his Honour failed to address the real issue in Tiahna’s case. That was whether, by reason of the requirement or condition that she be taught in English without Auslan assistance, she suffered serious disadvantage. As previously indicated, Lander J concluded that there was no evidence, or none that he was prepared to accept, “to support a finding that Tiahna cannot be educated in English, including signed English”. Without in any way impugning that conclusion, it does not follow that Tiahna thereby failed to establish that she was “not able to comply with” the requirement or condition, as formulated. There was a substantial body of evidence before his Honour, all of which he accepted, that suggested that irrespective of how well Tiahna had “coped” without Auslan assistance, she had nonetheless suffered serious disadvantage by being denied that assistance throughout the relevant period. For example, Professor Branson, Professor of Education and Director of the National Institute for Deaf Studies and Sign Language Research at La Trobe University, said:“Research into the academic performance of profoundly deaf children show that those students who have access to natural sign language as a fully fledged first language have consistently higher literary skills than those who have had no access to sign language or have only access to signed English.…Tiahna’s entrance into the educational system will constitute a significant change in her linguistic environment. No longer will she access a bilingual environment, as she currently does. Given this fact, we can no longer be certain of an age appropriate continuation in pace of her linguistic and cognitive development. In my view, a change to an English based linguistic environment is likely to have deleterious effects on that development.”