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Purvis v New South Wales

Purvis v New South Wales

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HIGH COURT OF AUSTRALIA
GLEESON CJ,
McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ
ALEXANDER PURVIS on behalf of DANIEL HOGGAN APPELLANT
AND
STATE OF NEW SOUTH WALES (DEPARTMENT
OF EDUCATION AND TRAINING) & ANOR RESPONDENTS
Purvis v New South Wales (Department of Education and Training)
[2003] HCA 62
11 November 2003
S423/2002
ORDER
Appeal dismissed with costs.

On appeal from the Federal Court of Australia
Representation:
S J Gageler SC with K L Eastman for the appellant (instructed by Legal Aid Commission of New South Wales, Coffs Harbour Regional Office)
M G Sexton SC, Solicitor-General for the State of New South Wales with C A Ronalds for the first respondent (instructed by Crown Solicitor for the State of New South Wales)
J Basten QC for the second respondent (instructed by Human Rights and Equal Opportunity Commission)
Interveners:
D M J Bennett QC, Solicitor-General of the Commonwealth of Australia with M A Perry intervening on behalf of the Attorney-General of the Commonwealth of Australia (instructed by Australian Government Solicitor)
G J Williams intervening on behalf of People with Disabilities (NSW) Inc (instructed by New South Wales Disability Discrimination Legal Centre Inc)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

GLEESON CJ. The issue in this appeal is whether the suspension, and subsequent exclusion, from a State high school, of a pupil who repeatedly assaulted other pupils and teachers, and whose behaviour was a consequence of brain damage suffered in infancy, contravened the Disability Discrimination Act 1992 (Cth) ("the Act"). The Human Rights and Equal Opportunity Commission ("the Commission") found that there had been a contravention. That decision was set aside by Emmett J in the Federal Court of Australia[1]. The Full Court of the Federal Court dismissed an appeal from Emmett J[2]. The appellant contends that the decision of the Commission was correct, and that the judges of the Federal Court were in error.
[1]New South Wales (Department of Education) v Human Rights and Equal Opportunity Commission (2001) 186 ALR 69.
[2]Purvis v New South Wales (Department of Education and Training) (2002) 117 FCR 237.
The facts, and the relevant legislative provisions, are set out in the reasons for judgment of Gummow, Hayne and Heydon JJ. The chronology appended to the reasons of Callinan J sets out the history of the pupil's conduct, and of attempts by the school authorities to deal with the problems it created. In the end, the principal of the school, referring to the pupil's "very violent behaviour", and to his own responsibility for the health and safety of other pupils and members of the school staff, decided upon exclusion of the pupil. That, it is said, amounted to unlawful discrimination contrary to s 22 of the Act, because the educational authority excluded the pupil on the ground of his disability.
The case was not argued as one of "indirect disability discrimination" of a kind covered by s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] HCA 62
Decision Date: 11 November 2003

CaseChat Overview and Summary

This case concerned an appeal by Mr Purvis, the carer of a disabled student, Mr Hoggan, against the New South Wales Department of Education and Training. Mr Hoggan, who suffered from severe brain damage resulting in intellectual disability, epilepsy, and behavioural problems, was repeatedly suspended and ultimately excluded from South Grafton High School due to violent and abusive behaviour towards teachers and other pupils. Mr Purvis alleged that the school's actions constituted unlawful discrimination on the ground of disability under the *Disability Discrimination Act 1992* (Cth).

The High Court was required to determine whether Mr Hoggan had been discriminated against on the ground of his disability. Specifically, the Court had to consider the meaning of "disability" within the Act, whether the Department had an obligation to provide reasonable accommodation or make reasonable adjustments for Mr Hoggan, and whether his treatment was less favourable than that which would be afforded to a person without a disability in similar circumstances. A key issue was whether the appropriate comparator was a person without a disability, or a person without a disability who also engaged in violent behaviour, and whether the less favourable treatment was "because of" Mr Hoggan's disability.

The Court reasoned that while functional disorders and disturbed behaviour can constitute a disability, it is not contrary to the objects of the *Disability Discrimination Act 1992* (Cth) for a decision-maker to identify a threat to the safety of others as the basis for a decision. The Court found that the principal's decision to exclude Mr Hoggan was legitimately based on his violent conduct and the need to ensure the safety of other pupils and staff. To attribute the decision solely to Mr Hoggan's disability would disregard the principal's legal responsibilities and obligations. The Court also noted that the ameliorative provisions of the Act should not be construed narrowly, but that the construction adopted by the Full Court of the Federal Court, which had led to the finding of discrimination, imposed "draconian consequences" on the respondent.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

It follows that this appeal must be allowed. However, because the decision of the Commissioner contains legal errors, the award of damages cannot stand. The appropriate order is to allow the appeal to this Court and the Full Court of the Federal Court and to direct that the complaint be remitted to HREOC in accordance with the Human Rights Legislation Amendment Act (No 1) 1999 (Cth) and the Human Rights Legislation (Transitional) Regulations 2000. The material facts Mr Hoggan was a ward of the State. He had been in the full time foster care of Mr Purvis and his wife since 1989. Mr Hoggan sustained severe brain injury when he was about 6 or 7 months old as the consequence of an encephalopathic illness. The injury resulted in damage to the parieto-occipital lobes and bilateral damage to the frontal lobes of his brain. As a result of his brain injury, Mr Hoggan suffers from an intellectual disability, visual difficulties, epilepsy and behavioural problems. Dr Graham Wise, a child neurologist, testified at the hearing before the Commissioner that:"The major part of [Mr Hoggan's] difficult behaviour would be disinhibited and uninhibited behaviour. That is, your frontal lobes are very important for you to smooth out emotional ups and downs, to cope with emotional crises in a relatively even way. So he would be likely to have flares of temper which he wouldn't be able to control as well as a child of his age and with this degree of intellectual handicap who did not have those particular frontal lesions." Mr Norman Lord, a registered psychologist employed by the New South Wales Department of Community Services, testified that:"He acts without a view of consequences or an intent on the behaviour, so he is more prone to strike out ... Initially he may withdraw. As he becomes frustrated he may start talking to himself, he may start sort of using offensive words, to isolate himself or – he may isolate himself and use offensive words – become aggressive and push somebody away, strike out at somebody who is not involved, all as a sense of not being able to articulate what the problem is that he's having with his feelings." In the second half of 1996, Mr and Mrs Purvis enquired about enrolling Mr Hoggan at the South Grafton High School ("the High School") for the 1997 school year. At that time, Mr Hoggan was attending another school. Mr and Mrs Purvis felt that his behaviour had regressed as a result of the segregated environment at that school. They met with the then principal of the High School who rejected their application to enrol Mr Hoggan at that school. In December 1996, the Department of Education and Training appointed a new principal, Mr Barry Bartley, to the High School. Following discussions with Mr and Mrs Purvis and the Department, Mr Bartley decided to enrol Mr Hoggan at the school. Before Mr Hoggan attended the High School, a Draft Welfare and Discipline Policy ("DWD Policy") relating to him was formulated by modifying the Department's existing Student Welfare Policy. One session of a staff development day was used to allow Mr Hoggan's teachers to discuss his enrolment, education and participation at the school. The use of a "progress sheet" to monitor his behaviour was also discussed at this meeting. This form required teachers to grade Mr Hoggan on his participation, co-operation, understanding and behaviour at 20-minute intervals during the class. He was also to be provided with a teacher's aide to assist him in class.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GLEESON CJ HUGH AND KIRBY JJ (dissent)

In identifying and considering the basis of, and/or the legitimacy of, a decision, for the purpose of measuring the conduct of an alleged discriminator against the requirements of the Act, it is proper, and may be necessary, to have regard to the objects of the Act as defined in s 3, and to the scope and purpose of the legislation. Even though functional disorders may constitute a disability, and disturbed behaviour may be an aspect of a disability, it is not contrary to the scheme and objects of the Act to permit a decision-maker to identify a threat to the safety of other persons for whose welfare the decision-maker is responsible, resulting from the conduct of a person suffering from a disorder, as the basis of a decision. Just as questions of causation may be affected by normative considerations arising out of the legal context in which they are to be answered[6], a statutory question as to the basis of a person's decision may be affected by similar considerations. There is no reason for rejecting the principal's statement of the basis of his decision as being the violent conduct of the pupil, and his concern for the safety of other pupils and staff members. It is not incompatible with the legislative scheme to identify the basis of the principal's decision as that which he expressed. On the contrary, to identify the pupil's disability as the basis of the decision would be unfair to the principal and to the first respondent. In particular, it would leave out of account obligations and responsibilities which the principal was legally required to take into account.[6]Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at 269 [37]-[40].Conclusion The appeal should be dismissed. I agree with the orders proposed by Gummow, Hayne and Heydon JJ. Mc This case is about discrimination on the ground of disability. It concerns the suspensions and later exclusion from school of a disabled student whose disability occasionally led him to violent and abusive behaviour. It concerns the failure of an educational authority to treat him equally with other students by taking steps that would have eliminated or substantially reduced his disruptive behaviour and allowed him to enjoy the same quality education as his fellow students enjoyed. The Disability Discrimination Act 1992 (Cth) ("the Act"), reflecting international developments[7], has introduced important protections for disabled people. In certain cases, the Act requires that disabled persons be given equal treatment and it makes it clear that the equal treatment must be real and not notional. To avoid a finding of discrimination against a disabled person, a person may have to take steps that cause expense and inconvenience to that person. But that is what the Act requires unless the expense and inconvenience amounts to unjustifiable hardship. [7]Dubler, "Direct Discrimination and a Defence of Reasonable Justification", (2003) 77 Australian Law Journal 514 at 515-516. The international developments reflected in the Act have the high object of correcting centuries of neglect of, and discrimination and prejudice against, the disabled. It would be wrong and contrary to the purpose of the Act to construe its ameliorative provisions narrowly. Yet this is the result of the decision in the court below. The learned judges of the Full Court of the Federal Court who heard the case felt driven to adopt the construction they placed on the Act because of what they expressed as an intuitive feeling that reading the Act in the way contended for by the appellant would impose "draconian consequences" on the first respondent.

Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ,

Full text does not contain this section.