Purvis v New South Wales

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.