Minns v New South Wales
[2002] FMCA 60
•28 June 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MINNS v STATE OF NSW | [2002] FMCA 60 |
| HUMAN RIGHTS – Discrimination – alleged discrimination on account of disability – decision to place student on part time attendance – decision to exclude applicant from school by suspension and expulsion – where student excluded for continuous unacceptable behaviour – meaning of ‘disability’ within s.4 of Disability Discrimination Act 1992 (Cth) – direct discrimination – comparator for the purposes of s.5 of Disability Discrimination Act 1992 (Cth) – whether less favourable treatment on grounds of disability – indirect discrimination – requirement to comply with schools’ discipline policies – whether applicant unable to comply with discipline policies – whether discipline policies were unreasonable. |
Human Rights and Equal Opportunity Commission Act 1986 (Cth) s.43PO(3)
Disability Discrimination Act 1992 (Cth) ss. 4, 5, 6, 22, 45
Waters v Public Transport Corporation (1991) 173 CLR 349
Australian Medical Council v Wilson (1996) 68 FCR 46
Marsden v HREOC & Coffs Harbour & District Ex-Servicemen & Women’s Memorial Club Ltd [2000] FCA 1619
Tate v Rafin [2000] FCA 1582
State of NSW (Department of Education) v Human Rights & Equal Opportunity Commission [2001] FCA 1199
Purvis v State of NSW (Department of Education & Training) [2002] FCAFC 106
Department of Foreign Affairs v Styles (1989) 88 ALR 621
Australian Iron and Steel v Banovic (1987) 168 CLR 165
Commonwealth Bank of Australia v Human Rights & Equal Opportunity Commission (1998) 150 ALR 1
Bogle v Metropolitan Health Service Board (2002) EOC 93-069
Bonella & Ors v Wollongong City Council (2002) EOC 93-183
State of Victoria v Schou (2001) EOC 93-170
Travers v State of New South Wales [2001] FMCA 18
| Applicant: | RYAN WAYNE MINNS |
| Respondent: | STATE OF NEW SOUTH WALES (DEPARTMENT OF EDUCATION AND TRAINING) |
| File No: | SZ 604 of 2001 |
| Delivered on: | 28 June 2002 |
| Delivered at: | Sydney |
| Hearing Dates: | 9, 10, 11, 12, 23 April, 28 May 2002 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Mr G Gemmell |
| Solicitors for the Applicant: | Mr J McClintock of Legal Aid (Newcastle) |
| Counsel for the Respondent: | Ms C Ronalds |
| Solicitors for the Respondent: | Ms M Barbaro of Crown Solicitor’s Office |
ORDERS
Application dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PORT MACQUARIE |
SZ 604 of 2001
| RYAN WAYNE MINNS |
Applicant
And
| STATE OF NEW SOUTH WALES (DEPARTMENT OF EDUCATION AND TRAINING) |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a claim bought pursuant to s.43PO(3) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“The HREOC Act”) alleging that the State of New South Wales through its Department of Education and Training breached ss. 5(1), 6 and 22(2) of the Disability Discrimination Act 1992 (Cth) (“the DDA”). The allegations relate to the treatment of the applicant at Taree High School (“THS”) and Chatham High School (“CHS”) from on or about 17 February 1999 until 27 July 2000 and in respect of the Department’s treatment of him as a student from 27 July 2000 to date.
The application which commenced these proceedings has now been superseded by an Amended Points of Claim dated 10 April 2002 to which the State has responded to by a Points of Defence dated 8 April 2002.
The applicant claims that he suffers from:
a)Asperger’s syndrome;
b)Attention Deficit Hyperactivity Disorder (“ADHD”);
c)Conduct Disorder; and
d)Manifestations of those disabilities;
which he says constitute disabilities within ss.4 (f), (g), (h), (i) and (k) of the DDA.
The allegations of direct discrimination under s.5(1) of the DDA relate to the amount of time for which the applicant was allowed to attend THS, suspensions from that school and the expulsion from that school on 12 April 2000. There are also allegations of failure to provide the applicant with school work during periods when he was at school on a limited basis only and when he was suspended. There are allegations in relation to his time at CHS concerning his suspensions from that school and the non-provision of work. There are allegations of requiring the applicant to take medication before attending at THS and an unwillingness to make changes to discipline policies by the Department. There are also allegations in respect of the distance education provided to the applicant being non-existent or inadequate, including a failure to provide the applicant with the assistance of a fully trained teacher.
The allegations of indirect discrimination under s.6(1) of the DDA relate to the requirement for the applicant to comply with the high school discipline policies of the two schools which, it is alleged, a substantially higher proportion of students were able to comply with.
The applicant alleges that the requirement to comply with the discipline policies was not reasonable having regard to the circumstances of the case (s.6(b) of the DDA) in that:
a)the applicant was entitled to an education;
b)the suspensions were excessive and ineffective;
c)the disabilities affected his ability to comply with the policies;
d)the state failed to implement a behaviour management plan or an incident response plan; and
e)the state was not sufficiently flexible to accommodate the applicant’s disabilities.
The respondent denies discrimination on the grounds of the applicant’s disabilities and says that the decisions were made on the basis that the applicant was unable to remain in the school communities due to his unacceptable behaviour. There is a denial that the applicant suffers from Asperger’s syndrome and that any actions were grounded on the applicant’s ADHD condition or his conduct disorder.
There is a dispute between the parties as to the appropriate comparator and the State argues, in respect of the indirect discrimination, that if there was a requirement or condition imposed it was reasonable having regard to the safety and security of all persons at the school and the provision of an appropriate education environment for all students. The respondents also refer to limited funding for students who behave in a disobedient or violent manner, which requires the resources available to be weighed and assessed.
The case for the applicant
Karen Sawyer
Ms Sawyer, who is the mother of the applicant swore three affidavits dated 20 November 2001, 18 December 2001 and 3 April 2002. She stated that Ryan was enrolled at THS commencing at the beginning of the school year in 1999 but that from 15 February in that year he only attended school on a part time basis and was sent home at 11.30a.m. on each day. She indicated that although she had agreed to Ryan attending school part time she did not believe she had been offered any choice between this and other alternatives and asked for him to be at school longer. She had a meeting with Mr Streatfeild, the principal of the school on 21 May, and he sent her a letter setting out the conditions on which Ryan would be allowed to return to school each day for the first four periods. The letter indicated that if Ryan met the conditions, which were to sit in the same position for all classes, to attempt his school work and not to interfere with other students or their possessions, then a more lengthy period of attendance would be considered. On 16 June 1999 Ryan was suspended for two days and a letter was sent to Ms Sawyer outlining the conditions for his return. On 20 July and 11 August there was further correspondence with the school concerning the timing of Ryan’s attendance. Part time attendance continued on and off, as did the suspensions, until Ryan was expelled from that school on 12 April 2000.
On 3 May 2000 Ms Sawyer and Ryan met with Mr Fitzpatrick, the principal of CHS who, she alleges, said words to Ryan to the following effect:
“Your history at school is very poor and I want you to understand that we won’t tolerate that sort of behaviour here. If you stick to the rules you will get along quite nicely and if you don’t you won’t last.”
Ryan was enrolled in CHS on 11 May 2000 but was suspended in June. On 28 July 2000 Ryan was suspended for twenty days from CHS and did not return. In August Ms Sawyer completed enrolment papers for distance education but said that Ryan did not receive any work to complete until after 23 October 2000.
Ms Sawyer also deposed to the fact that her son had been prescribed Dexamphetamine by Dr Rack during 1999 and 2000 which she used to give him before he went to school. She claims that a Mr Knauer, the Deputy Principal at THS, said words to the effect of:
“If Ryan does not take his medication I cannot guarantee he can continue to attend the school.”
She says that he repeated this conversation on many occasions and also that on several occasions Mr Streatfeild had asked her whether Ryan had taken his medication.
In her affidavit of 3 April 2002 Ms Sawyer deals with certain matters raised by the respondent’s affidavits which I will deal with when I set out the evidence given by the deponents.
In cross-examination Ms Sawyer agreed that her basic complaint against the Department was that it could have done more for Ryan in providing him with an education. She also agreed that in 1999 when he attended THS there were a range of special arrangements put in place for him. Some of these arrangements were for him alone and were not made for the benefit of any other students. She agreed this occurred at THS during the year 2000 and when he moved to CHS.
Ms Sawyer agreed that many departmental staff in the form of teachers and principals at both THS and CHS put in a lot of extra time and effort to assist Ryan whilst he was at those schools. She also agreed that Ryan had a certain level of responsibility for his actions whilst at the schools in both years 7 and 8. This included a responsibility to contribute to his learning process.
Ms Sawyer was questioned as to the amount of medical and psychological attention that has been devoted to Ryan. She agreed he has been seen by a number of doctors and psychologists. He had had counselling. He was placed on medication by Dr Rack. He is no longer on medication. He ceased medication after he left CHS. This was not a recommendation of Dr Rack’s but of Ms Sawyer’s. She said that Ryan was no longer seeing Dr Rack or any other specialist. She agreed that whilst Ryan was at primary school, the schools would, from time to time, give him his medication. She agreed that it was Dr Rack’s advice that taking medication would assist Ryan to progress through school.
In relation to part time enrolment, Ms Sawyer accepted that she had originally agreed to this, believing that it was in the best interests of Ryan and that it would hopefully lead to a return to full time schooling. However she was not prepared to accept that she supported part time enrolment throughout Ryan’s schooling at THS or CHS. She also continued to assert that Ryan did not receive homework during the periods in which he was partially enrolled or at best very little homework. She said in response to a question
“I used to look in his bag for homework. I very, very rarely found any. If there was any, I would encourage him to do it. If there was any, it was usually a little bit of homework that was handed out by his teacher from the first period. … I would ask him to do his homework and I would tell him that I would be there to assist him if he needed me.” [T29]
Ms Sawyer is a working mother. Thus when Ryan came home from school as a result of his part time enrolment or was suspended from school he would very often be at home alone. There was a suggestion made that Ms Sawyer’s concerns about Ryan’s partial enrolments, suspension and disciplinary problems were conditioned by their effect upon her work situation. She did not like to be phoned during the course of the day by teachers nor to have to leave work to pick up Ryan. In relation to the treatment of Ryan she agreed that there were times particularly at CHS where he would be sent home without being formally suspended although she could not recall this happening more than once. She agreed that Ryan had difficulty in dealing with requests that he make restitution or apologise to a teacher or a student with whom there may have been some altercation.
Ms Sawyer was questioned about distance education. Her responses seemed to indicate that she had taken some interest in the possibility of distance education before it was mentioned to her by CHS. However, there may have been some confusion between that and home schooling. Ms Sawyer believed she was not capable of carrying out home schooling arrangements. She could not take responsibility for Ryan’s education and she worked. She agreed that Ryan had done very little work under the distance education program when Mr Kontaxis, the teachers’ aide was not around to assist. She agreed that Ryan had been provided with a computer and a calculator at the Department’s expense and that the Department had undertaken to make payment of some phone bills towards the Internet costs.
Ryan Minns
Ryan swore four affidavits dated 28 September 2001, 20 November 2001, 18 December 2001 and 3 April 2002.
In these affidavits Ryan deposed to being diagnosed with ADHD and exhibited a letter from Dr John Miller FRANZCP, a consultant psychiatrist, which stated:
“Ryan is a fourteen year old boy, referred to me by his GP. In the past he has been diagnosed as suffering from ADD and tried on Dexamphetamine medication. He has other developmental delays, however, which fall in the mild Asperger’s syndrome spectrum but behaviours which would also qualify him for diagnosis of conduct disturbance. Obviously he requires extra support and help at school and hopefully this can be arranged for him next year.”
Ryan deposes to attending THS and to being suspended and eventually expelled in April 2000. He refers to being sent home on a daily basis after only attending two hours at the school each day and then refers to his enrolment at CHS.
Ryan refers to his enrolment in distance education and says that learning material was not located until about October 2000. He says that in October 2000 he had a mentor Jim Kontaxis who was not a trained teacher but who assisted in his education for four hours on three days a week. He said that although he gave Mr Kontaxis completed tasks he received telephone calls from persons identifying themselves as being from distance education and enquiring where his work was. In 2001 he was again enrolled for distance education in year 9. He was given a Macintosh computer by the Department but this was later exchanged for a PC which he stated had not been configured to enable him to make proper use of it to help his learning. He said that he has not received any support on a face to face basis from a qualified teacher in 2001, only seeing Mr Kontaxis between February and April and between August and December.
In his affidavit of 20 November Ryan deposes that in 1999 he was performing well at mathematics and that he thought that his mathematics teacher Mr Stokes was fair with him. Because he was being sent home from school at 11.30a.m. he was unable to undertake mathematics lessons because they were scheduled after 11.30a.m. As a result he fell behind in mathematics, computer studies and other subjects. He also complained that he was unable to participate in physical education classes after being suspended from the school. Ryan exhibited to his affidavit a series of reports which indicate quite good results in some subjects although it also notes a failure to complete assessment tasks or attend classes.
In his affidavit of 18 December Ryan deposes to being required to take medication by teaching staff and in particular being asked by Mr Streatfeild whether he had taken his medication at recess and if he had not, being required to go to Mr Streatfeild’s office in order to take it. The affidavit also exhibits a letter from Dr Phillip Rack addressed to Mr Streatfeild which says inter alia:
“I have already discussed with Ryan and Mrs Minns that he has features of pervasive developmental disorder, Asperger’s with delay in his social ability and communication, understanding of reciprocity for the situation, acceptance of rules. It has been explained in correspondence over the years that he does not just have features of attention deficit disorder per se.”
In his final affidavit Ryan deals with affidavits filed by the respondent. This affidavit indicates Ryan’s concern at having teachers aides or support teachers with him, his embarrassment at having to leave school early every day and his concern at missing classes in certain subjects so that when he returned to the school he did not know where the students were up to.
I asked Ryan a series of questions about his distance education and about the computer. It appears that the problem with the computer was not configuration but in Ryan’s understanding how the programs which were on the computer worked. After I had asked him a series of questions he was referred by Ms Ronalds, for the respondent, to certain documents which he agreed he had received from the distance education centre which were designed to teach him how to use the computer and the programs that were placed upon it. A complaint was made by both Ryan and his mother about access to the Internet. This is needed in order to e-mail some responses to the classes. Ryan indicated that at one stage an arrangement was made whereby a teacher would be online and there would be a form of direct communication between him and the teacher through the Internet. I am not clear whether or not this is continuing but I did come away with the impression that in general the alleged problems with the computer had been solved although it might possibly have not been put exclusively to the use for which it was intended.
William Sullivan
Mr Sullivan is a juvenile justice officer who conducted an assessment of Ryan in September 2000. He then prepared a background report dated 5 October 2000, a copy of which was exhibited to his affidavit. Mr Sullivan met with a Mr Doutty and a Mr Yager who are senior departmental officials in the local area. He says in his report:
“Evidently the Department of Education and Training has negotiated with My Place for Ryan to attend two hours per day and receive support from a teacher with skills in educating young people with major behavioural or emotional needs. This program is due to commence this term however Ms Sawyer and Ryan say they have not been approached by anyone from school education and know nothing about it.”
I did hear some evidence about Ryan conducting his distance education from a place other than home. There was some suggestion that this be conducted at My Place, but that did not occur, according to Ms Sawyer. The only places where Ryan conducted distance education were at home or at the local PCYC which was instigated by Ms Kontaxis. In response to questions from me Mr Sullivan confirmed that so far as he was aware there was a period of approximately eight months during which time neither Ms Sawyer nor Ryan were given any advice as to what was being considered by the Department in respect of his future educational needs.
At [T211] the following exchange between myself and Mr Sullivan occurred:
Q:“So did your enquiries indicate that as far as Ms Sawyer might have been concerned, she was correct in saying to you that she hadn’t heard of anything for a period of eight months?
A:Yes.”
Later in the course of the evidence being given by the respondent I learnt that this period of eight months was not accurate. In fact the period during which no schooling or distance education was being provided was from the time of Ryan’s final suspension from Chatham to approximately October 2000. I also learned that this time delay had much to do with Ms Sawyer’s wish for Ryan to undertake the distance education away from home and for him to be assisted by a male teachers’ aide. These requirements were met by the Department but it took some time to fulfil them.
Ms Heather Irvine-Rundell
Ms Irvine-Rundell is a clinical psychologist who examined Ryan on 11 March 2002 and prepared a report which is exhibited to her affidavit. Ms Irvine-Rundell works with Waring Redpath who are child and adolescent clinical psychologists and whose principal Mr Waring gave evidence after her. The report which the witness prepared was intended to indicate Ryan’s level of:
“educational progress and to provide an assessment of what would be required to bring him up to acceptable standards for his age and progress through the school system, ie. up to a year 10 standard.”
In order to undertake these tasks Ms Irvine-Rundell carried out a series of tests; but she also read a significant bundle of documents relating to Ryan and his educational progress since kindergarten. She also interviewed Ryan and spoke with Ms Sawyer.
The witness utilised the WISC-111 assessment instrument and the results indicated abilities ranging from average to above average. She states:
“On the basis of Ryan’s intelligence it would be anticipated that he would perform within the average to high average range on most academic tasks…however it must also be kept in mind that factors other than the child’s intelligence impact on the child’s actual school achievements. These factors are of utmost importance in considering whether a child is achieving to their potential and include (but are not limited to) school attendance, behaviour at school, motivation to succeed, attention and concentration, the type and quality of the teaching and the presence of specific learning disorders.”
She goes on to state:
“On the basis of this assessment there has thus been no indication that Ryan does not have the potential to complete at the very minimum his School Certificate (Year 10).”
Ms Irvine-Rundell then set out a number of recommendations. Her preferred solution was small group learning at an institution or with teachers appropriately trained:
“(This) would then allow for both his educational needs and also the opportunity to interact with peers in a controlled structured and relatively calm environment (as compared to a class of 30 children)."
In the absence of this type of facility Ms Irvine-Rundell recommended the one on one method of teaching that Ryan had experienced to a certain extent with Mr Kontaxis. She noted that Mr Kontaxis was not a qualified teacher and indicated that she believed that at this stage in Ryan’s education a qualified teacher should be utilised for a period of approximately twenty hours per week. She made a number of other recommendations concerning the approach to be taken to Ryan in the future.
In cross-examination Ms Ronalds asked a number of questions designed to test the witness’ diagnosis (or more accurately her acceptance of the diagnosis of others) of Asperger’s syndrome. To my mind the responses elicited were not of assistance to the respondent. The witness accepted that if Ryan did have Asperger’s (and she believed he did) it was a mild form.
I was impressed with Ms Irvine-Rundell’s evidence. Her responses were forthright and considered. She made appropriate concessions. She was tested as to whether the recommendations in her report were based upon her findings. She agreed that her testing did not identify special needs but she considered Ryan had special needs from her reading of the background reports. She agreed that she did not identify any learning difficulties although the testing would not necessarily have revealed these.
Counsel suggested that the use of percentiles in the report might tend to confuse a reader. For example, the score of 25 for coding was in fact an average score although it looks decidedly on the weak side. This was accepted by the witness but the criticism did not seem to me to go to the heart of the report. That was that Ryan is a student of high average intelligence who could be expected from his total profile to perform averagely if he was able to achieve his potential and was not hindered by exterior factors affected by his behavioural difficulties. The witness said that she took a number of matters into account in making her recommendations. These included the testing but also the background materials. She accepted that her recommendations for small group learning were speculative but did not accept that it was outside her expertise. Her recommendations were based on her understanding of Ryan’s profile and the information provided to her. I do not accept that Ms Irvine-Rundell is unqualified to make the recommendations. Whilst I understand Ms Ronald’s submission that the recommendations do not follow directly from the testing I do think that this type of recommendation can follow from a combination of testing, background reading and interviews which Ms Irvine-Rundell conducted.
John Waring
John Waring is a principal in Waring Redpath. He is a clinical psychologist and produced a report upon Ryan following an assessment which took place on 11 March 2002. He interviewed Ryan with his mother for a clinical life history interview over a two-hour period. Ms Sawyer was also interviewed using the Australian Scale for Asperger’s syndrome as the basis for a semi-structured interview, specifically with regard to Asperger’s syndrome. Mr Waring also read approximately eighteen hundred documents produced in relation to this case and in particular school records, educational policies and medical reports. He did not read the affidavits of Ryan’s teachers, which were produced for these proceedings.
Before Mr Waring commenced his evidence I received a number of objections to the report and certain parts of it were struck out on the basis that it sought to answer questions of law which were not within the witness’ domain. Certain responses were struck out on the basis that they related to education matters which the witness was not qualified to opine upon.
Mr Waring’s reports sets out the history of Ryan’s development and notes that at the age of four he was diagnosed as suffering from ADHD and was prescribed Ritalin. He then details problems which Ryan had over the years with taking medication although he seems to have been trialed on a number of drugs and was utilising them to some benefit particularly in his earlier school years. He provided a summary of the medical history in which he says:
“Ryan has been diagnosed with a range of externalising behavioural disorders from the age of four… It is also apparent the medication compliance has been a major issue and that the paediatrician has been, perhaps, frustrated in his management of Ryan by Ryan’s inability or reluctance to remain compliant to the various medications that he has been prescribed with over the years. Ryan has had a variety of diagnoses from Attention Deficit Hyperactivity Disorder, Anxious attachment to his mother, Oppositional Defiant Disorder, Emerging Conduct Disorder and most recently Asperger’s syndrome or Asperger’s disorder. Many children are diagnosed with Attention Deficit Hyperactivity Disorder as a precursor to the eventual diagnosis of their main disability, which is found to be Asperger’s disorder. Many of the features of Asperger’s Syndrome can manifest as over activity and impulsivity and whilst it is also possible to have co-morbid diagnoses of Asperger’s syndrome and ADHD it is perhaps more appropriate to see the overriding disorder as Asperger’s disorder as the symptoms of this disorder are more core to the child’s interaction with their word.”
Mr Waring then proceeds to discuss Ryan’s educational history and at this stage notes earlier reports from a Ms Nix, a school counsellor, that Ryan regarded suspension as a reward and that its use is counter productive. She recommended “in school detention suspensions”, which was something that Ryan feared. Mr Waring reports that Ryan confirmed these views to him in the interview.
Mr Waring detailed Ryan’s suspension and eventual expulsion from THS and his embarrassment with the teacher’s aide who had been deputed to assist him there. Mr Waring discusses the first interview which Ryan had with the principal of CHS and noted:
“At his first meeting with teachers his long history of problems was detailed to him and it was clearly stated to him that they would not tolerate these behavioural problems. He described this meeting as being about you will comply and he clearly feels that he did not get a clean slate at this new school.”
Mr Waring opines:
“It appears from Ryan’s description of this meeting that the “rules” were laid down to him in a confrontational way with no real understanding that for a child with Asperger’s syndrome that a rigid display of authority can simply provoke stubbornness from the child.”
Mr Waring notes a lengthy period of part time attendance and suspensions and then discusses Ryan’s enrolment in distance education and his contact with Mr Kontaxis. He notes:
“Ms Minns told me that she refused to allow Ryan to return to school because he had been out of school for two years. In that he had only been there from 9.00a.m. until 11.00a.m. She would like him to re-enter the school system, but feels that he is not ready and that he has been excluded for too long. She also reported that the principal of Chatham High School had told her that the teachers would go on strike if Ryan returned to the school.”
Mr Waring then opines on various matters raised in the letter of instructions. In regard to point 1 he says:
“Ryan suffers from Asperger’s disorder, Attention Deficit Hyperactivity Disorder, Oppositional Defiant Disorder and an Emerging Conduct Disorder. Each of these disorders from the information given to me by Ryan, his mother and the records supplied from Mr McKlintock support the presence of these disorders since 1 January, 1999 and before.”
At point 2 Mr Waring details the symptoms of Asperger’s disorder which, he says, Ryan displays:
“In fairly subtle ways, but ways that have caused him a great deal of disruption and difficulty into fitting into mainstream education. He has some difficulties in conversations, in following conversations and being appropriate in understanding subtle social skills. He used to avoid social interaction… he now desires more social contact, but ironically as he is out of school he has less social contact… he has no real insight into his ADHD or Asperger’s disorder… the symptoms of Ryan’s disorder, namely Asperger’s syndrome means that he does learn in a different way to persons without his disorder. It is often said of children with Asperger’s disorder that they learn the social rules and conventions and the rules of social conduct by rote rather than by intuition.”
Finally, in regard to this point, Mr Waring says:
“For Ryan it appears he not only had subtle difficulties interpreting teacher’s comments and problems in peer relationships but that the nature of the transition from primary school where there is only one teacher for him to get used to, to high school where he has multiple teachers to get used to caused difficulties in getting used to a routine. His inattention and impulsivity also caused him to be unable to follow through on work set for him and to impulsively call out answers or act without thinking through the full consequences of his behaviour.”
At point 3 Mr Waring opines on the plan adopted for dealing with Ryan by THS in year 7 and its appropriateness to his condition. He again notes the difficulty that children with Asperger’s disorder have at times of transition and indicates that the document which he saw being a memo dated 2 February 1999 addressed to the teachers of his year 7 from Pam Myers was inadequate preparation for Ryan’s teachers both about Ryan himself and about the condition of Asperger’s disorder. He points out that the minutes of the meeting do not refer to Asperger’s syndrome but to behaviour problems which he believes indicates that inappropriate consideration was given to Ryan’s condition. He notes the existence of a document headed “IEP, Major Goals for Term 2, 1999 which he describes as an individual education plan for Ryan. He believes this document is more appropriate. He then refers to other documents headed “Student Profile” and finally opines:
“If the documents described by me as a plan, ie. The Individual Education Plan – Major Goals for Term 2 1999 and the memo from Pam Myers and the Student Profile Documents is the sum total of the plan for managing Ryan in Year 7 then I would say that it is not adequate preparation for managing a child such as Ryan with his level of disabilities. It is inadequate to manage the transition from primary school to high school…
In order to have appropriately supported a child with Asperger’s syndrome and other disabilities during the transition from primary school to high school it is reasonable to have expected the school to have developed the following: a behaviour management plan, this plan would follow on from information obtained from the school counsellor from medical professionals and from their own functional behavioural assessment… An incident response plan should also be prepared… I do not find evidence of these types of plans within the documents supplied to me.”
Mr Waring is more supportive of the plan that was provided when Ryan moved to CHS:
“However, it appears that when Ryan went to Chatham High School the support teacher behaviour plans became more detailed and were indeed more appropriate… It appears from the documents available to me that this intervention program was complied with and was appropriately attempted to be implemented, however, by this time Ryan’s non-compliance and difficult, abusive and at times violent behaviour made it impossible to appropriately teach him things such as anger management strategies that the Itinerant Behaviour Support Teacher was attempting to implement. These plans would have been more appropriately employed at the time Ryan entered year 7.”
In response to point 6 Mr Waring opines that the existing policies and procedures for student welfare and discipline make adequate provisions for his ADHD and Conduct Disorder problems and ensure both the safety of the students and the staff. He does not believe that the policies were sufficiently responsive to Asperger’s disorder. He does not think it was genuinely understood by the teachers and says:
“Schools sometimes expect children with Asperger’s disorder to understand the rules and to comply with them because of their good verbal skills, however this is often not the case. Due to the pervasive nature of Asperger’s disorder, management of behaviour within the school system is always going to be quite difficult.”
Further in his report Mr Waring notes that from Ryan’s side there was a sense of isolation and distress because of the continuing suspensions and expulsions and on the schools’ side a difficulty in managing his behaviour. He comments:
“Their discipline code appears to have been fairly rigidly enforced and one could gain the impression that excluding Ryan on multiple suspensions and long term suspensions was a cover for not being able to adequately meet his educational needs and that the excuse of protecting staff and students from violence was used as a cover to exclude him from education.”
Mr Waring also discusses Ryan’s failure to take medication noting Ms Sawyer’s view that it had limited beneficial effects and also Dr Attwood’s view that a child with Asperger’s syndrome could be treated without medication. He does not, however, indicate support for a policy of ignoring doctor’s recommendations for medication.
Mr Waring was cross-examined in the usual form concerning his knowledge of the applicant. He confirmed that the report was prepared for medico-legal purposes. This fact alone does not invalidate his evidence. The report must be looked at upon its merits. The detail of the research done, (in this case considerable, some 1800 documents), the length of the interview (here some two hours), and the expertise of the writer (here some eleven years as a clinical psychologist with some six years specialising in child matters), must all be considered. The witness did not read the affidavits of the teachers filed in the matter and so made his interpretation of the other documents without the benefit (or detriment) of that evidence.
The most important finding of the report is the diagnosis of Asperger’s syndrome. This was the subject of a late report from Dr Milch. The witness explained that the child’s interaction with his world is not affected by the presence of Asperger’s Syndrome. He did not accept that most of Ryan’s educational problems came from ADHD and Conduct Disorder. He felt Ryan presented a complex clinical picture which allowed various professionals to have different views of the causes of his misbehaviour. Mr Waring felt that as of 11 March 2002 Ryan displayed evidence of conduct disorder but felt that this arose out of the Asperger’s syndrome and had a large part to do with his conflict with the school principals and teachers.
Mr Waring was questioned about the status of the history received. This was intended to suggest that Ryan’s responses might have been influenced by his mother and their joint antipathy to the Department of Education. Mr Waring’s answers led me to believe that he did not feel that this had affected his interview and that the responses he received were genuine. He resisted the suggestion that the actions of Ryan which made his teachers and fellow students antipathetic to him were independent of the Asperger’s syndrome. He refuted the suggestion that wit was not found in sufferers of this disorder. He accepted that some of Ryan’s reported conduct was more indicative of conduct disorder. He agreed that the report did not deal at length with those matters and concentrated on Asperger’s syndrome. I do not feel that Ms Ronalds was able to shake Mr Waring from his diagnosis and I was impressed with the way he conducted himself in the witness box. I do not think that the report was weakened by the later criticisms of Dr Milch which I felt were appropriately dealt with by Mr Waring who made concessions in deference of some of Dr Milch’s views but remained firm about his own, particularly his diagnosis.
The case for the respondent
Debra Moody
Ms Moody gave evidence that she was the Japanese teacher to Year 7 at THS in 1999. She had approximately twenty-eight students in her class including Ryan. She deposed to attending a meeting with Ryan’s other teachers to discuss behaviour management strategies. She said:
“The speaker told us a little about Ryan’s illness but I cannot recall exactly what he said in this regard.”
In her affidavit she stated that after about a month Ryan began to be disruptive in class. He would interrupt her with unrelated questions, he refused to do work, he tore up his work sheets and would insult and threaten other students. Ms Moody said that Ryan rarely did the work set for the rest of the class and although she prepared alternate tasks for him which he initially appeared to enjoy doing he soon ceased to do them. Ryan’s behaviour made it more difficult for her to teach the rest of the class and she spent an inordinate amount of time upon him. She felt that she was more lenient with Ryan than with other students and tried to encourage him.
The cross-examination of this witness brought out the fact that Ryan was only in her class for limited periods because after a short period of time he was on a limited enrolment and only attended three classes a day. This meant, in the case of Japanese, that he only attended one half of the classes every week. There were then extensive periods of suspension.
Mr Gemmell in his cross-examination asked a series of questions of this witness and of others in which he sought their confirmation that Ryan evidenced behavioural characteristics associated with Asperger’s syndrome. This witness confirmed those characteristics.
Robyn Kay Lauder
Ms Lauder taught Ryan science at THS for a short period at the commencement of 1999 and then later in terms 3 and 4. She also attended a staff development meeting with the school counsellor Colin Brown concerning Ryan and was aware that he had behavioural problems. After about eight lessons in which she stated that Ryan was a disruptive student he was asked to leave the class as he was constantly failing to follow instructions and was rude to her. In mid-February Ryan left her class and did not return.
Ms Lauder said that she knew Ryan had ADHD and Asperger’s syndrome. She confirmed that she had sent a letter home because Ryan had not completed three homework tasks.
It appeared to me that Ms Lauder was a teacher who received considerable respect and obedience from her classes. She did not tolerate bad behaviour. She stated that she believed how Ryan acted was his own choice. Her evidence seemed to indicate a conservative view of behavioural problems that was unsympathetic to that held by a person such as Mr Waring.
Gary John Curtis
Mr Curtis was the head teacher of creative arts at THS in 1999 and saw Ryan on a number of occasions when he had been sent to Mr Curtis for failure to follow a teacher’s instructions or caused disruptive behaviour in the classroom. In year 8 Ryan was in his art class. Like the other teachers Mr Curtis modified standard work for Ryan and tried to encourage him. He, like other teachers, deposed to Ryan’s disruptive behaviour and his failure to do homework or classwork. Mr Curtis has been head teacher of creative arts since 1984. He stated that:
“Ryan was a very difficult student to work with and probably the most difficult student in terms of management of his behaviour and completion of his work that I have ever encountered.”
Mr Curtis said that he did not give Ryan work to do from the classes which he did not attend because of his partial enrolment. He did give him homework from the classes which he did attend and he prepared work for Ryan to do when he was suspended but he never received any of that back. Like many other witnesses Mr Curtis was cross-examined about whether or not the behavioural problems that Ryan exhibited were common. Again, like many witnesses whilst agreeing that some of the complaints about Ryan were common to other students he felt that Ryan's misbehaviour was beyond the norm for the class in which he was in.
Peter McDonald
Mr McDonald was the industrial arts teacher at THS in 1999. He recalled a meeting concerning Ryan but in his case this appeared to be a one on one meeting between himself and the school counsellor Mr Brown. He recalled that Mr Brown mentioned that Ryan had Asperger’s syndrome but he didn’t know what it was at the time, he looked it up. He didn’t recall being told how to deal with it.
Mr McDonald found Ryan’s behaviour in class difficult to deal with and said that he would never do any of the work that he set for the students. He only saw Ryan for a short time, approximately four periods a week for seven weeks during some of which time Ryan was either on partial enrolment or on suspension. He thought that Ryan was quite smart in the area of computers. When Ryan was in his class he had a teacher’s aide but he felt that Ryan was being unco-operative with both himself and the aide. Mr McDonald spent a long time with Ryan and felt that Ryan was taking up the time which could otherwise have been occupied by teaching the rest of the class. He felt that Ryan behaved in an aggressive manner towards other students and would sometimes jab them with sharp pieces of equipment.
Roger Kenneth Knauer
Mr Knauer was Deputy Principal of THS in 1999 and 2000 when Ryan attended at that school. One of his roles was welfare and discipline but he only became involved in discipline once it went beyond the faculty level. He used this distance between himself and the teachers more directly responsible for discipline to try and build up an independent relationship with Ryan. He deposed to having reviewed Ryan’s primary school records with Mr Brown, the school counsellor and he went to Ryan’s old primary school to speak to staff and students for an orientation visit. He arranged for Mr Brown to address the staff about Ryan’s disabilities and strategies to assist his integration into the school. He provided space within his office or Mr Brown’s office for Ryan to have time out if he felt he was not coping with the classroom situation. He describes this as a strategy to help Ryan self manage.
Mr Knauer referred to the problems in the science class which had been reported to him by Ms Lauder and said that after that occurred he spoke to Ms Sawyer and discussed the possibility of Ryan attending part time. In answer to some questions from me he indicated that this proposal was made after considering Ryan’s general behaviour as reported to him by Ryan’s teachers and observations of his behaviour. They had come to the view that Ryan behaved better during the mornings than in the afternoons. He intended the proposal to be temporary and hoped that Ryan would, through his conduct during the time he was at school, prove that he could cope with full day tuition. He indicated that the school had placed other students on part time attendance if they behaved in a way as to suggest they could not cope with full time attendance.
Mr Knauer spoke to Dr Rack, Ryan’s treating Doctor, about Ryan and received a report from him. He deposes in the affidavit to several other incidents involving Ryan and to his wish to involve Ryan in sport so that he could interact with the other students.
Mr Knauer referred to several strategies that were designed to try and assist Ryan to excel. These were:
a)“To provide Ryan with the support of a teacher’s aide and itinerant support teacher’s behaviour;
b)To provide Ryan with the support of members of the welfare committee;
c)Personally I spent a lot of time with Ryan – I would give Ryan work to do when he came to my office;
d)By giving Ryan a time out process;
e)By allowing him to attend part time.”
Mr Knauer deposed to several conversations on the telephone with Ms Sawyer about Ryan.
Mr Gemmell asked the witness to consider a number of letters from THS to Ms Sawyer advising her of disciplinary action taken against Ryan. The witness agreed that none of these letters indicated that part time attendance was being used for Ryan’s benefit. He stated that the letters were only summary documents. He advised that he had had discussions with Ms Sawyer. The most important discussion was in February before the first decision to move Ryan to part time enrolment occurred. Mr Knauer intended this to be a short term strategy for Ryan’s benefit, particularly as the staff had indicated to him that Ryan’s behaviour deteriorated in the afternoon. However, there were several periods of reduced attendance between February and July.
The witness was shown document 86 (from exhibit D1) which has a response by Ms Sawyer to an invoice for school fees dated 13 August. This document indicates that by that time Ms Sawyer was not happy with the part time enrolment regime. Mr Knauer strongly resisted any suggestion that this regime was put in place for the benefit of the teachers rather than for Ryan. He accepted that this procedure might disorientate a pupil who would not always be familiar with the lessons having not been to the previous one. Mr Knauer said that the teachers were instructed to start the child off by bringing him up to date on previous lessons.
I asked Mr Knauer about the provision of the teacher’s aide and the way in which the teacher’s aide interacted with the pupil. It would appear from his response that although a number of people were deputed to be teacher’s aides most of the work was done by a Mr Scott Machin. Mr Knauer did explain that even when a teacher’s aide was present in class the discipline of the pupil was the responsibility of the teacher.
Helen Lesley Hannah
Ms Hannah is a psychologist who between 1996 and 2000 worked for four days a week as a school counsellor in the Taree district. She first met Ryan when she was working as a school counsellor at Manning Gardens Public School and she was instrumental in having Ryan assessed at the Royal Far West Home Childrens Health Scheme in that year. In 1993 she was asked by Ms Sawyer to conduct a psychological assessment of Ryan for his paediatrician. Between 1996 and 1997 she was the school counsellor at Chatham Public School whilst Ryan was there and she worked with him. In 1997 she conducted an anger management training course with Ryan and concluded that he would not accept responsibility for his anger.
In 2000 she was one of the district school counsellors at CHS when Ryan commenced. Upon his commencement she attended a meeting with the school principal, Ms Sawyer, Ryan and another person. The purpose of the meeting was to discuss Ryan’s admission. Some strategies for dealing with Ryan’s problems were discussed including providing a special place for him to go to if he needed time out and the place at which he sat in class. Ms Hannah agreed to draft a note to be circulated to classroom teachers concerning Ryan. During Ryan’s attendance at the school she saw him on occasions and spoke to him but did not give him any individual counselling.
The cross-examination of this witness addressed the strategies to be implemented to assist teachers and Ryan upon his enrolment. The witness had prepared a note (document 186 from exhibit D2). This information was provided to his teachers. The document does not appear to measure up to the type of document which Ms Hannah agreed would be of benefit to the teachers, particularly those who were inexperienced and given the complexity of Ryan’s conditions.
The witness said that she was brought in to support the school to ensure that Ryan’s educational needs could be met but she did not do more than attend the meeting referred to in her evidence and produce the document. She did not see the teachers and talk to them individually about Ryan’s condition. When Dr Milch gave evidence later I showed him document 186 and the following exchange took place at [T211]:
Q:“I’m going to show you document 186. Just read it.”
A:Yes.
Q:Don’t say anything. That document was prepared by a registered psychologist and given to Ryan’s teachers at Chatham High School. As you know, he went to Chatham High School after being expelled from Taree?
A:Yes.
Q:We do not know whether the teachers were told anything else about Ryan and in all probability, they may well have.
A:Yes.
Q:Leaving that aside, is that document an appropriately detailed document to expect from a qualified person giving advice to teachers about someone with Ryan’s condition. Think about it.
A:No.”
Suzanne Rothwell
Ms Rothwell taught English to the year 7A stream class at THS in 1999. She recalls that before Ryan commenced there was a meeting with other teachers at which he was discussed. She recalls being told that Ryan could be difficult and that he behaved differently to other students. She said that the speaker suggested various strategies that could be used to try and manage Ryan’s behaviour. She also recalled attending other meetings to discuss Ryan during the year.
In her affidavit Ms Rothwell describes how she treated Ryan in class and the problems which she experienced with him. She felt that he intimidated other students and was disruptive. Ms Rothwell tried to manage Ryan’s behaviour be talking to him about his conduct. She would only report matters to the head teacher or principal or deputy principal if his conduct was sufficiently disruptive to the learning of the other students or if he had hurt another student.
Like many of the witnesses Ms Rothwell indicated that she spent more time on Ryan than any other student in the class. Like them she made an effort to develop a relationship with Ryan but was concerned that his disruptive behaviour hindered her ability to teach class and the other student’s ability to learn.
This witness also confirmed what a number of teachers had said, that Ryan was given work to do at home when on long suspensions. He did not return it. He was also expected to keep up with his reading when not in class because he was in part time enrolment. She found that he was not doing this.
Ms Rothwell made an effort to adjust her teaching program to assist Ryan by offering him varying subjects within each lesson. This was intended to find something he would be interested in so that he could be kept “on task”. He also had a teacher’s aide almost all the time. She spoke about meetings at which Ryan’s behaviour was discussed as well as strategies for dealing with bad behaviour. She gave evidence that Ryan was the only disruptive student in her 1999 Year 7 class. She said that he was not expected to complete the same assessment tasks as the other students.
Stephen Holdsworth
Mr Holdsworth was the industrial arts teacher at THS and for part of the first term in 1999 Ryan was in his industrial art class. He deposed to the fact that Ryan was a little bit disruptive in class. He would wander around the classroom and distract other students. He would generally not do his work. He gave evidence concerning certain incidents in the playground when he was on playground duty and Ryan climbed on to the roof when he had been told not to. There was also an incident when he found him trying to climb up on the roof in April 2000 and after he had intervened and found that Ryan would not listen to him and walked back to his room. He stated:
“As I got to the door in my room Ryan came running down towards me and kicked the door. I went to close the door to protect myself and as I did so he kicked and pulled at it. He then turned and walked away.”
Antony Mark Milch
Dr Milch is a fellow of the Royal Australian and New Zealand College of Psychiatrists. He prepared a report dated 8 March 2002 for the Crown Solicitor’s Office and a further report dated 9 April 2002. The first report was exhibited to his affidavit. The second report was tendered in evidence.
Dr Milch did not see Ryan Minns. His report is based upon the study of the very voluminous documents prepared for this case. In
cross-examination he agreed that he was a visiting medical officer of the Mid North Coast Area Health Service which included the Taree area. He therefore had an opportunity to see Ryan.
In evidence Dr Milch indicated that he believed that Ryan had a “choice” in the way he behaved. He felt that there would be specific triggers which would bring about more emphatic reactions in Ryan than in other students but that he still had some control over his actions if he could manage the situations. It was important that he learnt to manage situations and to accept responsibility for his actions. Dr Milch felt that not being accountable might validate similar behaviour in the future and would be counter productive for Ryan.
Although the gravamen of Dr Milch’s report of 8 March 2000 was that Ryan did not really exhibit the symptoms of Asperger’s syndrome, Dr Milch accepted that by the time he came to write the report of 9 April 2002 and having seen Dr Waring’s report that Ryan did have mild symptoms of Asperger’s Syndrome. Dr Milch would prefer to refer to Ryan’s condition as indicating mild features of pervasive developmental disorder.
In response to questions from me Dr Milch discussed the place of medication in the treatment of conditions similar to Ryan’s. He explained that taking medication could be of considerable assistance because the medications were aimed at specific behavioural characteristics in order to lower the propensity of the patient to indulge in them. He explained that the medication worked together with other forms of therapy. In the case of young students with these disorders it was important that they saw themselves succeeding. If taking the medication reduced their outbursts and allowed them to concentrate on school work then the teachers would be able to compliment them on producing good work. This in turn would raise their self-esteem and make it easier for them to avoid disruptive behaviour. He believed that the medication could be controlled so that it was not over prescribed and the child could remain alert whilst taking it. He believed that the taking of medication would be beneficial both to the child and to the school community.
Dr Milch was questioned about the appropriate preparation to be given to persons who were likely to be teaching Ryan and, as previously noted, he commented adversely on Ms Hannah’s document.
Colin Brown
Mr Brown is a psychologist and since 1988 has been working as a district school counsellor in the Taree area. He had some peripheral involvement with Ryan in 1990 but first really came into contact with him in 1998 at Chatham Public School. He attended a few meetings with Ryan and his mother and other departmental staff to discuss Ryan’s behaviour at that school. He arranged for an itinerant support teacher (behaviour) to work with Ryan at Chatham Public School in February 1998. In his affidavit he states:
“On or about 19 March 1998 I applied for Ryan to be allocated to the support teacher (Ed) caseload. This is an increased level of support for Ryan based on a medical diagnosis of emotional disturbance by a psychiatrist or a paediatrician. The support teacher (Ed) Outreach assists a small number of students integrated into mainstream schools by giving advice to class teachers on management strategies. I prepared a counsellor's report on Ryan in support of this application. This application was rejected because there were no vacancies in the class.”
Mr Brown assisted in the transition by Ryan from primary school to
THS. He communicated with Mr Streatfeild, the principal of that school, addressed the staff there about Ryan’s needs and was instrumental in placing Ryan in the A stream Year 7 class. Ryan had been tested at his primary school and had come an overall 32 out of 118 and was well placed to be in the A stream. Mr Brown also felt it would be of assistance for him to be in a class of motivated students.
Mr Brown worked with Scott Machin an itinerant support teacher (behaviour) who began to work with Ryan at THS.
After the incident in the science class described by Ms Lauder and another incident with a fellow student a meeting was held to discuss strategies for assisting Ryan. Out of those meetings came the proposal that Ryan be given limited enrolment for a one-month trial period.
In paragraph 41 of his affidavit Mr Brown says:
“Part time attendance is a strategy that Taree High School has used quite effectively with a small group of students with a history of extremely difficult behaviour prior to their enrolment in Taree High School. The transition to secondary school can be quite difficult for some students with behavioural problems due to the increased number of teachers and the constant changes of teachers and classes. Accordingly, some students with such difficulties commence Taree High School on a part time basis so that it is easier for them to cope with the transition to High School. In the case of some of the students who have been commenced on part time enrolment they have progressed to full time attendance. It was my hope that if Ryan was able to achieve success for limited enrolment it would enable him to achieve and sustain a successful full enrolment as had been achieved with other students.”
Mr Brown also discussed Ryan’s medication arrangements. He referred to a meeting on 29 April with Ms Sawyer and Mr Knauer where Ms Sawyer said words to the effect:
“Ryan is better at home when he takes his medication.”
Ms Sawyer thereafter agreed to supply medication to the school to be administered to Ryan by either the principal or the deputy principal if he came to the school without taking the medication at home.
Mr Brown’s affidavit continued with the history of Ryan’s attendance at THS detailing the periods of suspensions and part time enrolments. Mr Brown spent time with Ryan in class and personally witnessed some of the disruptive behaviour which is complained of. He says that:
“Throughout 1999 I attended several meetings with Ryan, Ryan’s mother and other departmental staff which arose from Ryan being rude or disruptive in class, refusing to work or refusing to comply with requests by staff.”
Mr Gemmell questioned the witness as to the preparation of teachers who were to teach Ryan. The witness referred to document 82 (from exhibit D1) prepared by Scott Machin. This is a single sheet with headings of classroom behaviour, student management, likes and dislikes. The witness agreed that it did not comply fully with the list of requirements suggested by Mr Waring but felt it went a long way towards this. It offered teachers an opportunity to obtain further information if required by contacting Mr Brown.
The witness denied that part time attendance was either instituted to assist teachers or as a punishment for Ryan. He hoped that it would be short term but at the start of the period of February 1999 he was not sure how long it would last. He agreed that the strategy did not succeed in integrating Ryan into the school community on a full time basis which was its aim.
In response to questions from me Mr Brown expanded on the preparations made for Ryan to attend THS. He indicated that a number of his cohort were transferring from the primary school to THS and he had made sure that some of the students with whom Ryan appeared to associate most productively were placed in his class at THS.
Scott Machin
Scott Machin worked as a support teacher Outreach (emotionally disturbed) for the New South Wales Department of Education between 1997 and 1999. He was one of two education support teachers for the Taree district and began working with Ryan in mid 1998 at Old Bar Primary School and continued to work with him when he began attending THS. He had gone with Ryan to the orientation day at THS at the end of 1998. He worked with Ryan at the high school until the end of term 2 in 1999 and made suggestions to the principal and to Mr Brown about methods of assisting Ryan. These suggestions later found their way into document 355 although he pointed out that this document did not stand on its own, it was part of other strategies that were discussed with teachers. He held a meeting with Ryan’s classroom teachers in mid February 1999 where he went through many of the matters outlined in the information sheet.
Mr Machin was supportive of the decision to put Ryan on part time attendance because he thought it would assist Ryan in managing his behaviour. He received reports from most of Ryan’s teachers which indicated that Ryan was better in the mornings than in the afternoons.
Mr Machin recalls having discussions with Ms Sawyer about Ryan and accepts that she was anxious that he attended school on a more full time basis. He also wanted Ryan to attend on a full time basis but pointed out to Ms Sawyer that that meant Ryan would have improved his behaviour to the extent that he could constructively remain in class full time.
At paragraph 52 of his affidavit Mr Machin says:
“Ryan would go through periods of compliant behaviour where he would demonstrate he was able to comply with the school rules when on full day attendance. However, he could never sustain these periods of compliant behaviour.”
At paragraph 64 he says:
“I also supported Ryan by trying to act as an advocate for him by, for example, speaking to his teachers or to the principal to negotiate on his behalf. Also when incidents of violence by Ryan towards other students arose I would speak to the other student to try and explain Ryan’s behaviour and to highlight to them Ryan’s positive attributes. I would try to explain to them that Ryan is a good person but that he sometimes did bad things.”
Mr Machin observed that Ryan was given more attention than other children in his classes and Mr Machin himself says that he spent 75% of his time on Ryan and only 25% on the other children in his care at the school.
Phillip Streatfeild
Mr Streatfeild was principal of THS during the period in which Ryan was a student. In 1999 when Ryan joined the school there were 1037 students, between 70-72 teaching staff and about 12 ancillary staff. He had been told in December 1998 by Mr Colin Brown that Ryan would be enrolling in the school and that he had been attending his primary school on a part time basis because of behavioural difficulties. Mr Streatfeild was told that Ryan had Aspergers Syndrome and ADHD. Mr Streatfeild agreed with Mr Brown that Ryan could be enrolled on a full time basis and that the school would examine the type of support that it could offer to him.
The school received an allocation of $6,469.00 for the employment of a casual teacher or teachers aide (special) to work with Ryan and Scott Machin was allocated to work with him. Prior to Ryan commencing at the school Mr Streatfeild arranged for his classroom teachers to attend a meeting at which Mr Brown addressed them about Ryan’s disabilities and about behavioural management strategies.
Mr Streatfeild dealt with the history of Ryan’s attendance at THS. He deposed to an incident in Ryan’s science class and the decision to provide a teachers aide although Ryan had requested that he not have one. He dealt with the decision to put Ryan on to part time attendance. He said at paragraph 22 of his affidavit:
“The part time attendance was used as a strategy to assist Ryan. It was the experience of Ryan’s classroom teachers that it was difficult for him to concentrate and remain on task during his afternoon lessons, therefore I felt that Ryan would be more likely to be productive at school and to derive some positive benefit from school if he did not have to attend for the whole day. It was my hope that Ryan would work well if he was only required to attend for a more limited time and that as he demonstrated his ability to cope with an increased attendance I would gradually increase his time at school.”
At paragraph 24 of his affidavit Mr Streatfeild stated:
“Ryan is not the only student who attended the school part time. There are several other students who because of behavioural and other issues have been placed on partial attendance. I place students on partial attendance if their behaviour is such that it indicates that they are unable to cope with full time attendance. It is a strategy that is intended to be of benefit to the student and is not intended as a punishment.”
Mr Streatfeild referred to a meeting on 26 March 1999 with Ms Sawyer and a number of members of staff to discuss Ryan’s part time attendance. He declined to decrease this because Ryan was still refusing to do class work and to comply with reasonable requests of teachers. He refers to an incident on 17 May 1999 when Ryan scraped a student’s back with a protractor and was suspended. That was followed by a meeting on 21 May 1999 with Ms Sawyer and Mr Brown to discuss what was expected of Ryan upon his return to school. On 25 May 1999 Mr Streatfeild received a letter from Mr Rex Doutty of the Department informing him that the school could receive funding to employ a teacher for three days to support Ryan upon his return. Ms Sawyer requested that this teacher be male but unfortunately no male teacher could be found.
More assistance was provided in late July 1999 by an acting itinerant support teacher (behaviour) but the next day Ryan interrupted his English class by holding up a large sign upon which the words “This subject sux” was written and he refused to put it away when asked. There were incidents on 11, 12, 23, and 25 August 1999 resulting in a suspension. A further meeting was held on 6 September 1999 which again included Ms Sawyer and other persons supporting Ryan to deal with what was expected of Ryan when he returned from this suspension. Mr Streatfeild confirmed that he did ask Ms Sawyer about whether or not Ryan had taken his medication. It was his belief that Ryan behaved better when he was on his medication. He would do his best to ensure that Ryan took his medication every day but he did not suspend or expel him for his failure to take medication, he would speak to Ryan about it but would not discipline him in any other way.
At the beginning of Term 4 1999 Ryan returned to school on a full time basis with a teacher’s aide to assist him in his practical classes such as Art and Science. There were two incidents on 12 October 1999 and others on 15, 20 and 21 October 1999. He was removed from class for punching a student on 25 October 1999 and on 29 October 1999 was suspended for refusing to follow the directions of staff. He resumed full time schooling on 5 November 1999 but was again in trouble on 17, 19 and 22 November 1999. He was suspended, resuming on 24 November 1999. On 15 December 1999 he was placed on a four-day suspension. Notwithstanding his disruptive behaviour Ryan was allowed to return to school full time for year 2000 in year 8. A further grant for special education support was given to the school. On 7 February 2000 a letter was written to Ms Sawyer informing her that Ryan was refusing to complete his work in English class and throwing things at other students. Because his conduct was preventing the teacher from teaching and the other students from learning Ms Sawyer was advised that if Ryan’s behaviour did not improve his full time attendance would have to be assessed or the school might move to expulsion.
Ryan was suspended on 24 February 2000 for 10 days returning on 13 March 2000. On 15 March 2000 there was an incident in which he refused to attend a class and he was suspended with advice that he should not return to school unless he was prepared to attend all of his lessons and do as he was asked. On 21 March 2000 there was a meeting with Ryan, his mother and his father with Mr Brown to discuss Ryan’s behaviour prior to his return to school on 22 March 2000. On that day he refused to do any work in Maths, refused to work with the teacher’s aide, chewed up and spat out his level sheet, made his Maths worksheet into a paper aeroplane and threw it around the room. In early April Ryan resumed at the school on a part time basis and there was a further incident at the school on 4 April 2000, as a result of which Mr Streatfeild advised Ms Sawyer that he was considering a long suspension or alternatively expulsion. On 11 April 2000 he wrote to Ms Sawyer advising her of his decision to expel Ryan. At paragraph 103 of his affidavit the deponent says:
“Throughout 1999 and 2000, Ryan had been consistently destructive in his classes, he had assaulted other students on a few occasions, he had been verbally abusive towards teachers in front of other students on many occasions and on many occasions he simply would refuse to follow the reasonable directions of any staff member. I did not feel that I or any other staff member could control Ryan and as such I could not ensure the safety of my staff or other students.”
At paragraph 106 he says:
“I would have expelled any other student who had behaved in the way that Ryan had throughout 1999 and 2000 and in the case of any other student I may have moved to expulsion earlier than I did with Ryan.”
Mr Streatfeild continues in his affidavit with the efforts which he made to ensure that Ryan continued in education with CHS. He spoke with the principal of that school who agreed to accept Ryan. At paragraphs 123 and 124 of his affidavit Mr Streatfeild outlined the different strategies that had been employed to assist Ryan and the assistance which was received by the school in the form of funding from the Education Department. At paragraph 127 he says:
“On most occasions Ms Sawyer would agree with what the school was proposing. Ms Sawyer did not often have any suggestions to offer about managing Ryan’s behaviour and she said at several of the meetings words to the effect of: Yes I know, I’m having problems with him at home.”
Mr Streatfeild was of the opinion that the part time attendances did succeed in integrating Ryan back into the community. He said that by term 4 in 1999 Ryan was back at the school full time. He started year 8 in 2000 as a full time student. Mr Streatfeild did accept that Ryan did subsequently go back to part time attendance. He was adamant that part time enrolment was arranged to assist Ryan and not to punish him. The effect of his evidence was that the documents which referred to part time enrolment may not have used such words, but, nonetheless, the intention was, to his mind, clear.
Mr Streatfeild was asked about Ms Sawyer’s reaction to part time attendance. He said that he thought she was supportive of the schools’ decisions although he understood that she would have preferred him to be there full time (as he himself would have).
Mr Streatfeild agreed that Ryan was generally only given work to do at home on long suspensions. He accepted that given the number of short suspensions it might have been appropriate to give him work then. But he reminded counsel that Ryan’s record indicated that he rarely completed homework or tasks of this nature. In response to some questions from me Mr Streatfeild indicated that in-school suspension at THS had to be largely unsupervised. He said for this you would need a generally well-behaved student who was well motivated to get on with their work. In-school suspension was usually only used for isolated incidents of bad behaviour. He thought it was quite inappropriate for Ryan.
Cathy Arena
Ms Arena gave evidence that in mid-2000 as a support teacher for CHS she worked with Ryan and about nine other students from various primary schools and high schools. She recalled being given information by Ms Bourne as to Aspergers Syndrome and the type of behaviour to expect from Ryan. She recalled that Ms Bourne used overheads and that the meeting was very informative. At the meeting she agreed to spend a whole day with Ryan when he was going to attend a Maths field day at Taree racecourse. She read his file and prepared an intervention program which set out her goals for working with Ryan and strategies for achieving those goals. She spoke to Scott Machon who had worked with Ryan at THS and first met Ryan on 15 May 2000.
When she met Ryan he told her that he did not want her to be in the class with him and they agreed that she would work one-on-one with him instead of in class. She then referred to an incident on 22 May 2000 where she attended a meeting with the principal and Ryan to discuss an incident in his Maths class. She took the view that Ryan had misunderstood what his Maths teacher had told him about going to see the principal. She believed that Ryan was under the impression that by merely going to see the principal he would get his ball back. She could see that this misunderstanding was causing problems in the interview and interrupted the principal and advised him.
She deposed to further assistance provided to Ryan and further incidents that came to her attention. On 29 May 2000 she began an anger management course with him. She deposed to an incident which occurred in her presence on 5 June 2000 as a result of which Ryan was suspended. She had a meeting with Ms Sawyer on 7 June 2000 and on 19 June 2000 went on leave for five weeks. When she returned Ryan was no longer in the school.
She, like many of the teachers, disputes the complaints made by Ms Sawyer about the teaching staff at CHS. She felt that seating Ryan near to the door of the class was a positive management strategy for him. She believed that the staff at CHS were very tolerant of Ryan and of his behaviour and very supportive. She confirmed that the anger management program was not completed because of Ryan’s non-compliance.
Peter James Fitzpatrick
Mr Fitzpatrick is the principal of CHS. In evidence in chief he said that there was a special unit at the school of 64 students catering for students with mild to severe physical or learning disabilities. A learning disability is the main criteria for admission. He was asked if he thought that Ryan would be an appropriate student for this unit where the teacher-student ratio was very low. He said that Ryan’s name was not put forward as his intellectual capacity was not the problem that the school was concerned with. Ryan was a bright student and although one of the reasons he had been placed in A-streams was because it was thought he would integrate better there, his primary school tests had established that he deserved to be in those classes.
Mr Fitzpatrick stated that no child in the Taree district had one-to-one teaching from a qualified teacher. The best that could be done for a child was the provision of a teacher’s aide. In the support unit, the best that could be done was one teacher for six students. There was no child that he knew of that had 20 hours a week one-to-one with a teacher as had been recommended by Ms Irvine-Rundle.
Mr Fitzpatrick noted that with a student like Ryan, the school (and therefore Ryan) would be better off getting integrating funding than sending the child to the support unit. In any event the emphasis today is on trying to integrate all students into the mainstream rather than isolate them in special schools.
Mr Fitzpatrick’s evidence dealt with the approach that he had received from Mr Streatfeild to take Ryan and his agreement to do so. He recalled a telephone discussion with Mr Brown on 11 April 2000 and he reviewed Ryan’s school file. He spoke to Ryan’s potential classroom teachers and said that he chose them specifically because they were experienced and caring and tolerant teachers. Having done this he arranged to meet with Ms Sawyer and Ryan himself. His recollection of the words used on the meeting of 3 May 2000 were as follows:
“You obviously have a chequered background but I am treating this as a fresh start for you. The school will have a meeting with the teachers to let them know about your disability. We have to try and put things in place to make your enrolment succeed. Whilst we are all here to support you to succeed there are three things I won’t tolerate from students – if you take foreign substances which I consider dangerous or illegal, if you fight – I don’t care whether you win, lose or draw and if you abuse teachers. All new enrolments from years 7 to 12 are made aware of this. That being said there is an incredible amount of support available to all students – if you have problem you can see either the deputy principal, the head teacher, your classroom teacher or if you get stuck you can see me. We want this to work.”
He then asked Ryan:
“You understand why you were expelled and we have to make sure you do not repeat the same mistakes. Do you understand that if you are violent it won’t be accepted?”
Ryan responded“Yes I understand.”
Although Mr Fitzpatrick gave Ryan a list of people he could obtain assistance from, in fact Mr Fitzpatrick himself took a great deal of responsibility for Ryan. He arranged a time-out area outside his office. More often than not, he dealt directly with Ryan after complaints had been made about Ryan’s behaviour. Whenever possible he would deal with those complaints without invoking disciplinary procedures. He would talk to Ryan. Mr Fitzpatrick has been criticised for the manner in which he spoke to Ryan on that first day. I was particularly anxious to see whether the witness exhibited the overbearing tendencies attributed to him by Ms Sawyer and Ryan. Of course, these feelings are subjective. Given the nature of Ryan’s problems he was much more likely to respond negatively to Mr Fitzgerald than another person. Mr Fitzgerald admitted that there was one occasion where it was quite clear that Ryan had misunderstood him but he said that he went back over the matter and explained it to him in greater detail believing in the end that Ryan did comprehend. He said that he told Ryan that he wanted a fresh start but that did not mean that the past would be forgotten. It meant that Ryan could start afresh. The implication was that he was an unknown factor to the teachers although they knew that he had disabilities. He could start again without people picking on him because of his past. Mr Fitzpatrick thought that Ryan understood those implications and knew that if certain behaviour occurred he would be asked to leave the classroom and would be disciplined.
There is also the important failure of the applicant to provide evidence in relation to a comparator in regard to this allegation. More importantly, there is no evidence that I can find which ties this alleged failing by the school to Ryan’s disability or even to the manifestations of his disability, i.e. his conduct. There is no suggestion of a positive decision not to give Ryan the school work and I am unable to draw an inference of any failure that did exist otherwise than as a result of an administrative error. Nothing that I heard from any of the witnesses or read in the affidavits of those witnesses who were not called indicates a connection between the disabilities or their manifestations and the failure to provide work.
Allegation (j) is as follows:
“(j) requiring the applicant to take medication before attending school at Taree High School and in the course of attending Taree High School.”
The respondent submits that this allegation can only be understood as a poorly pleaded allegation that it was a condition of attending school that Ryan take medication. I accept this submission as it puts the complaint properly within the context of the alleged unlawful activity. There are two problems with an allegation that this requirement constituted less favourable treatment. The first is that the medical evidence appears to be clearly that the taking of medication assisted Ryan. Dr Rack most certainly thought that it would. He was Ryan’s treating doctor. The whole of the applicant’s case is pervaded by the notion that the respondents did not give Ryan the education to which he was entitled. Requiring Ryan to take medication so that he could obtain the optimum benefit from the education that was being offered to him cannot be held up as a failure to provide him with educational services. The school was acting on the written advice of Dr Rack and on what it understood to be the approval of Ms Sawyer. If Ms Sawyer and Ryan decided that the medication was not suitable for Ryan or was causing him difficulties then the appropriate place to take their concerns was the doctor. They did not do that and it is difficult to see how they can maintain a complaint that the school required Ryan to take medicine that it had been advised was for his benefit by a specialist medical practitioner in circumstances where the patient and his mother declined to seek out the practitioner in order to change the treatment.
The applicant has also failed to provide any indication of who the appropriate comparator might be or any evidence of the treatment of such a comparator.
Allegation (k) is as follows:
“(k) the respondent’s high schools were not willing to make any, or sufficient, change to their discipline policies to accommodate the applicant’s disabilities and treated the applicant on the same basis as all other students.”
In order to establish that this allegation constituted less favourable treatment the applicant would need to show that an actual or hypothetical comparator would have elicited the change to discipline policies which are nowhere particularised. I do not recall any evidence of this nature being led or sought. However, what I do recall most strongly is that all the teachers from both of the schools made it clear in their evidence that exceptional attempts were made to accommodate Ryan’s behaviour. There is more than enough evidence of the provision of teacher’s aides, the planning of classroom work, the provision of time out facilities, the one on one discussions with Ryan to refute this allegation. The evidence does not sustain it.
In paragraph 3(l) of the Amended Points of Claim the applicant sets out a series of allegations intended to establish that the distance education provided to the applicant was inadequate or non-existent. At para 54 of his submissions counsel for the applicant says:
“He does not press the allegations in paragraph 3(l) on the basis of direct discrimination, but does press them as a detriment suffered pursuant to s.22(2)(c) of the Act pursuant to the respondent’s direct discrimination against Ryan in not allowing him to return to Chatham High School and decide to enrol him in distance education.”
As explained previously the scheme of the Act requires the applicant to assert that all the discrimination falls within s.22 because s.5 only identifies what discrimination is. The complaints which have been considered above are being considered within the context of s.22 but as a first step they are being examined against the criteria in s.5 to see whether the actions constitute discrimination. If the applicant wishes to use the allegations contained in 3(i) as examples of detriment in the allegation concerning the decision not to allow Ryan to return to Chatham High School then they become irrelevant if a finding is made that that failure in itself was non discriminatory. I have already found to that effect in regard to the allegation in 3(j) and there is therefore no need to consider these complaints.
Paragraphs 4-8 of the Amended Points of Claim do not make independent allegations which need to be considered in the context of s.5 before being considered in the context of s.22. They appear to be particulars of how the constituents of discrimination in s.5 have been met.
The findings which are made above are to the effect that none of the allegations of direct discrimination pass the test set in s.5 of the Act. In most circumstances my findings relate to “less favourable treatment” but in some I have considered whether or not the treatment was “because of the aggrieved person’s disability”. I have only made findings on the latter ground where it seems to me to be clear that the nexus has not been shown and cannot be inferred from the evidence.
Indirect discrimination
At [172] I have set out a version of s.22(2) DDA which combines the requirements of s.6. I propose to examine the submissions made in regard to indirect discrimination on the basis of this reading.
The first matter that is raised by the respondent in answer to the whole claim for indirect discrimination under s.22(2) is that:
“In summary the respondent contends that the definitions are mutually exclusive and cannot be applied to the same set of facts see, for example, Siddiqui’s case per Heery J at 52 to 55, Sackville J at 77. An applicant must elect whether to pursue their claim or a particular factual matrix as a direct or an indirect discrimination claim.”
Justice Heery certainly takes the view that the direct and indirect discrimination sections of the Racial Discrimination Act with which the court was then dealing are mutually exclusive (at F, 55,). That statement means that the same set of facts cannot constitute both direct and indirect discrimination. It does not mean that a complainant must make an election. The complainant can surely put up a set of facts and say that he or she believes that those facts constitute direct discrimination but in the event that they do not they constitute indirect discrimination. There is nothing in the remarks of Sackville J in Siddiqui’s case which would dispute this and the reasoning of Emmett J in Hoggan (No. 1) and that of Wilcox J in Tate v Raffin [2000] FCA 1582 at [69] would appear to suggest that the same facts can be put to both tests. I propose to consider the claims of indirect discrimination made on behalf of the applicant in these proceedings.
The indirect discrimination alleged on behalf of Ryan is that he was required to comply with the school discipline policy at THS and at CHS in respect of which at [T38 – 28 May 2002] he asserts:
“The evidence discloses that a substantially higher proportion of students in Ryan’s cohort were able to comply with the school discipline policies while Ryan was not. Mrs Lauder described Ryan as the worst student she had ever had and the effect of Ms Rothwell’s evidence was that he was the only student who disrupted her class.”
What the applicant is submitting in relation to compliance with the school discipline policy could be more accurately described as compliance with the conduct required by the school discipline policy. The policies of both schools are found in reasonably detailed documents that deal not just with the conduct expected of students but also what will happen if they do not conform. The policies set out reasons for requiring good conduct which include the obvious ones of enabling all students to benefit from the educational opportunities offered and the requirement to allow this to occur in a safe environment.
The respondent argues that the applicant did comply with the disciplinary policy as that policy sets out that [T81- 28 May 2002]:
“If you do X this will happen to you;
He did X and that happened to him, so he could comply and he did comply.”
This argument is ingenious in its simplicity. I do not accept it. I think what the applicant is maintaining is that the policy mandated certain conduct with which Ryan could not comply because of his disabilities or their manifestation.
The applicant submits that the requirement contained in s.6:
“(a)With which a substantially higher proportion of persons without the disability comply or are able to comply.”
is satisfied by comparing Ryan’s situation with that of all the other students in his cohort. Ryan’s disabilities and in particular the disability of conduct disorder makes it impossible for him to behave in a manner compliant with the discipline policy. The respondent argues that this form of comparison whilst it found favour with the Full Court of the Federal Court in Department of Foreign Affairs v Styles (1989) 88 ALR 621 was undermined by the decision of the High Court in Australian Iron and Steel v Banovic (1987) 168 CLR 165. The very sophisticated test required in Banovic was discussed by Sackville J in Commonwealth Bank of Australia v HREOC (1998) 150 ALR 1 where he said at [40] in reference to Banovic:
“The case authoritatively establishes that the word “proportion” used in s.24(3)(a) of the Anti Discrimination Act (equivalent to s.5(2)(a) of the SD Act) requires more than a mere numerical comparison. That proposition is not in question in this case. Banovich is, however, important in the present context because of the comments of the majority (Dean, Dawson and Gauldron JJ) on the selection of the base groups for the purposes of the comparison required by s.5(2)(a) of the SD Act.”
The respondent submits that no attempt to properly define the base group was made. The respondent argues that no calculation of the persons to whom the requirement or condition applies in order to determine the initial pool was made. There was no division between people without the disability and people with the disability so that the denominator could be identified as those to whom the requirement applied and the numerator being those who actually comply. It is argued that the proper course to take is for the two fractions to be compared to calculate whether the group with the disability are disproportionately represented in the impact of the requirement or condition.
The approach taken in Banovic and Commonwealth Bank are required in cases where it is necessary to tease out actual discrimination which is not evident at first blush being the result of:
“Practices that are fair in form but discriminatory in practice.”
Griggs v Duke Power Company (1971) 401 US 424 at 431.
The respondent’s submissions are well taken. It is for the applicant to prove his case and if that requires a complex, time consuming and undoubtedly expensive exercise in comparisons then it must be undertaken. It should be noted that the cases as quoted by the respondent in support of the complex comparisons are sex discrimination cases (Banovic, Commonwealth Bank v HREOC, Bogle v Metropolitan Health Service Board (2002) EOC 93-069, Bonella & Orsv Wollongong City Council (2002) EOC 93-183). There are no cases dealing with disability discrimination. Hoggan (No.1) is such a case and at [40] Emmett J said:
“Section 6(a) on the other hand contemplates a situation where discrimination operates indirectly. One example of such indirect discrimination would be requiring a complainant to act in a way that was made impossible by a person’s disability. Thus an illustration of conduct that might fall within s.6(a), based on the facts in the present case, would be the situation where the school expelled the complainant because he continued to swear and demonstrate violent behaviour.”
In making that observation Emmett J did not appear to be troubled by fitting the applicant into a pool. There is no evidence in this case that any one else suffered Ryan’s disabilities although it is known from the evidence of the teachers and of the school records placed in evidence that the majority of students in Ryan’s classes did comply with the policies. No evidence was produced by the respondent that any members of Ryan’s classes were unable to comply with the policies apart from Ryan.
The next requirement of s.6 is sub-paragraph (b):
“(b) Which is not reasonable having regard to the circumstances of the case.
The applicant argues that it was not was reasonable to require Ryan to comply with the schools’ discipline and welfare policies having regard to the circumstances of the case because the steps taken by the schools were not in themselves reasonable for dealing with Ryan. The applicant then gives some examples of the unreasonable behaviour. I cannot see how this is an argument that supports the contention that the requirement to comply with the policies was not reasonable. The assertions in the examples point out weaknesses in the manner in which the policy was applied and suggest better ways of applying it - putting him on a behaviour contract in Ms Lawler’s class – providing better information to staff about how to deal with Ryan – developing an adequate plan for Ryan – remitting the policy on the grounds that Ryan was only attending part time – being more flexible – but the applicant does not address what was unreasonable about the policy or what was unreasonable about requiring Ryan to comply with it.
I have no difficulty in finding that the policies were reasonable. The policies produced for both CHS and THS are comprehensive and comprehensible. They are designed to ensure that all those involved with the educational opportunities provided by those schools realise their potential. Rights and obligations of students and staff are clearly identified. No criticism of the policies per se has been made by the applicant. His argument is that they should be modified or adapted to his disabilities.
In Department of Foreign Affairs v Styles (1989) 88 ALR 621 Bowen CJ and Gummow J set out the test of reasonableness at page 263:
“the test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience. … The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All of the circumstances of the case must be taken into account.”
This passage was approved in Waters, at 395-396, per Dawson and Toohey JJ and 383, per Deane J.
In State of Victoria v Schou (2001) EOC 93-170 Harper J in the Victorian Supreme Court considered the requirement of reasonableness in the context of s.9 of the Equal Opportunity Act 1995 (Vic). He said at [26]:
“Reasonableness, in the context of s.9 of the Act can only be determined by weighing all relevant factors. These include the matters which an employer should properly take into account when deciding whether or not to impose a requirement, condition or practice on an employee or employees.”
It is not sufficient that the reasonable test be applied only to the applicant. The condition must be looked at in the context of all persons to whom it might apply.
In Travers v State of New South Wales [2001] FMCA 18 this court came to the view that whilst it might have been reasonable for a school to require the students in a particular class to utilise the lavatory in another building it was unreasonable to require a student in that class who had serious incontinence problems to do so when there was an available toilet just outside the classroom door. “All the circumstances” included but was not limited to the circumstances of the disabled student. If the applicant had produced evidence of a modification to the school discipline policy which would have had the effect of, inter alia, allowing the other students to be taught without undue disruption and for the teachers to be able to provide reasonably equal attention to all students in the class, then he might have been able to argue that to require adherence to the policy as promulgated was not reasonable. But that was not the approach he took. The approach adopted by the applicant was merely to criticise what the schools were trying to do to achieve this end - the employment of teacher’s aides – the explanatory programs to teachers – the seating of Ryan in particular places near the door – the provision of “time out” facilities which did not in the end alleviate the situation.
To the extent that evidence of the witnesses for the applicant suggested alternative methods of handling Ryan, or it was felt that his teachers might have had more success in handling him if they had been better made aware of his problems, I am unable to find that these would have significantly improved the situation. This is not a case where the teachers were completely ignorant of Ryan’s disabilities and reacted inappropriately to him. They were given information by experts (some better than others) and tried to put those strictures into effect. They all spent lengthy periods of time with Ryan to the disadvantage of other students. He had the benefit of teachers’ aides and anger management. This assistance was intended to modify the effect of the discipline policy and help Ryan to adjust to it.
Although the applicant does not accept this, I am of the view that the evidence establishes that the discipline policies were modified for Ryan. He was not always punished when he breached the school rules or was disruptive in class. He may well have been expelled from THS long before he was eventually expelled and he may well have been expelled from CHS rather than suspended which could have resulted in him being denied any further education (see also evidence of Mr Webster at [T286]).I am of the view that the requirement that was placed upon Ryan to comply with each of the school’s disciplinary policies as modified was reasonable in all the circumstances. The classes in which Ryan was placed would be unable to function if he could not be removed for disruptive behaviour. The students could not achieve their potential if most of the teachers’ time was taken up with handling Ryan. The playgrounds would not be safe if Ryan was allowed free rein for his aggressive actions. Therefore the claim for indirect discrimination must fail in the manner in which it is put.
There is an additional claim for indirect discrimination in relation to the provision of distance education. The submissions made by the applicant in relation to this aspect of the matter are not easy to follow. They appear to be that Ryan should not have been required to carry out the work set by distance education between August and November. But Ryan did not do the work. He did no distance education work until 30 October when Mr Kontaxis started to assist him. It was submitted that it was unreasonable for Ryan to comply because of his previous history and because his mother worked. As Ryan did no work in this time I cannot see how the requirement came into effect.
As a gloss on the arguments surrounding distance education, or possibly as an “out of school” alternative a claim was made early in the proceedings, although with much less stridency at the end, that Ryan should receive education on a face to face basis with a fully qualified teacher for approximately twenty hours per week. The failure to provide this form of education can only constitute direct discrimination but the evidence is that no student in the state of New South Wales has one on one teaching of this type and therefore the failure to provide it cannot be “less favourable treatment”. The claim also ignores the basis of distance education. That system is run by teachers. A student has the opportunity for direct communication with a teacher through the internet and chat room set ups.
The allegations of indirect discrimination must fail.
The findings which I have made make it unnecessary for me to consider the difficult question of whether Ryan’s conduct is itself the disability from which I have found he suffers or the manifestation of it. I am aware that leave to appeal to the High Court has been sought in Hoggan and that this will be an issue to be taken up by that Court if special leave is granted. If I am found to have been wrong in any of the findings which I have made so that the disability/manifestation dichotomy becomes an issue it is best that I do not appear to have pre-judged it by making any comments thereon in these findings.
I dismiss the application. I will hear argument from the parties as to costs.
I certify that the preceding two hundred and sixty-eight (268) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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