Purvis v State of NSW (Dept Education & Training) & Anor
[2003] HCATrans 674
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S423 of 2002
B e t w e e n -
ALEXANDER PURVIS on behalf of DANIEL HOGGAN
Appellant
and
STATE OF NEW SOUTH WALES (DEPARTMENT OF EDUCATION AND TRAINING)
First Respondent
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
Second Respondent
GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 29 APRIL 2003, AT 10.18 AM
Copyright in the High Court of Australia
__________________
MR S.J. GAGELER, SC: If the Court pleases, I appear with MS K.L. EASTMAN for the appellant. (instructed by the Legal Aid Commission of NSW Coffs Harbour Regional Office)
MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MS C.A. RONALDS, for the first respondent. (instructed by Crown Solicitor for the State of New South Wales)
MR J. BASTEN, QC: If the court pleases, I appear for the second respondent. (instructed by the Human Rights and Equal Opportunity Commission)
MR G.J. WILLIAMS: If the Court pleases, I appear on behalf of People with Disabilities, seeking leave to intervene as amicus curiae, limited to written submissions. (instructed by New South Wales Disability Discrimination Legal Centre Inc)
GLEESON CJ: What is the attitude of the other parties to that application?
MR SEXTON: We do not have anything to say, your Honour.
KIRBY J: Are you seeking to put more than written submissions? Are you seeking to address the Court in support ‑ ‑ ‑
MR WILLIAMS: We are not seeking leave to make oral submissions. We are seeking leave to be limited to the written submissions already filed with the Court.
GLEESON CJ: Yes, you have leave on that basis.
MR WILLIAMS: Thank you, your Honour. If I might assist the Court in one small matter further by handing up a bundle of documents that simply reflects the international materials upon which our written submissions are based.
GLEESON CJ: Thank you.
MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth of Australia: If the Court pleases, I appear with my learned friend, MS M.A.PERRY, for the Attorney‑General of the Commonwealth intervening. (instructed by Australian Government Solicitor)
GLEESON CJ: Yes, Mr Gageler.
MR SEXTON: Your Honour, perhaps one matter first. There is a notice of motion we have filed ‑ ‑ ‑
GLEESON CJ: Is that opposed, Mr Gageler? Yes, you have that leave. Yes, Mr Gageler.
KIRBY J: The constitutional issue is not now pressed, as I understand it.
MR GAGELER: That is our understanding.
KIRBY J: Is it pressed in a sort of indirect way as giving some colour to the meaning of the Act or ‑ ‑ ‑
MR GAGELER: Yes, and I will come to that. Your Honours, can I commence by identifying the two key findings of fact made by the Disability Discrimination Commissioner in finding that the appellant’s complaint of direct discrimination was substantiated under section 103 of the Act. The first concerns the nature of Daniel’s condition. The second concerns why Daniel was first suspended on five occasions and then, ultimately, excluded from South Grafton High School.
The nature of Daniel’s condition is addressed at pages 28 to 29 of the appeal book. In the evidence of Dr Wise, a child neurologist, and Mr Lord, a psychologist, that evidence set out at pages 28 and 29 being later adopted by the Commissioner as his finding, and that adoption occurs at page 89 line 16. What Dr Wise says in the first line at page 28 is that Daniel’s behaviour results from severe brain injury sustained at about seven months of age, that injury including, at about line 9, what is described as “bilateral damage to the frontal lobes”.
One then goes to line 35 to see the link as explained by Dr Wise between the frontal lobe damage and what he describes as “disinhibited and uninhibited behaviour”. The nature of Daniel’s particular behaviour is then taken up in the evidence of Mr Lord, at the bottom of page 28.
KIRBY J: As I understand it, this is because the particular area of the brain that was affected is that area of the brain which processes the information that is seen and it leads to cognition and understanding of what is perceived.
MR GAGELER: Very much. The way Dr Wise puts it at line 36 is that the “frontal lobes are very important for you to smooth out emotional ups and downs”. So one has the description by Mr Lord at the bottom of page 28 and the top of page 29, including a reference to frustration on the part of Daniel sometimes leading to the “use of offensive words” and aggressive behaviour – pushing, kicking and the like.
All that is summarised by the Commissioner, page 89 about line 24 subparagraph (a), where the manifestation of what is described there as “an intellectual disability” is said to involve:
unusual individual mannerisms and disturbed behaviour such as rocking, humming, swearing, and at times aggressive behaviour such as hitting or kicking ‑ ‑ ‑
GLEESON CJ: Hitting or kicking whom?
MR GAGELER: Anyone who might be in the vicinity. Your Honour, the five suspensions all arose from some relatively minor incident of pushing in the back or kicking in the ankle, that sort of thing. Your Honours might note, at the top of page ‑ ‑ ‑
KIRBY J: They were not entirely minor; there was apparently unprovoked kicking of teachers who were fond of the boy ‑ ‑ ‑
MR GAGELER: Very much.
KIRBY J: ‑ ‑ ‑ and, on one occasion, who was propelled into kicking back, an action that shocked her, that she should be provoked of that. So you cannot really call them trivial, in the context.
MR GAGELER: Your Honour, my argument would be the same no matter the degree of harm caused by the behaviour, but one must be careful not to overstate the behaviour. On one occasion, he kicked a teacher in the ankle, she kicked back; on another occasion, he kicked a little girl, who was bundled off to receive attention and she wondered what all the fuss was about.
GLEESON CJ: Do you mean your argument would be the same if his behaviour was life threatening?
MR GAGELER: In principle, yes.
CALLINAN J: Mr Gageler, just one matter I wanted to ask you. He is now 18 years of age, is that correct?
MR GAGELER: Yes.
CALLINAN J: What is his status? Is he still a ward of the State or what is the position, do you know?
MR GAGELER: I will find out his precise status, your Honour.
KIRBY J: He was awarded damages and he is trying to hold onto those, is that the case?
MR GAGELER: Yes, he is certainly still living with Mr and Mrs Purvis, but his precise legal status, I am not sure.
CALLINAN J: If you could tell me, thank you.
MR GAGELER: I want to draw your Honours’ attention to the top of page 90, that:
Mr Lord, in his evidence, stated that the nature of Daniel’s disability means that he has no sense of the cause of his behaviour such that his behaviour can be described as planned or motivated by ill intent.
And that was accepted. Your Honours might also note, page 91 line 35, that:
The various medical reports relating to Daniel’s disabilities, with some minor exceptions, were on Daniel’s file at the school, and Mr Bartley –
the principal, whose action was in question in the case, was aware of them. Moving then to the Commissioner’s ‑ ‑ ‑
KIRBY J: Is there any common theme in the behaviour? On one occasion he was facing an examination or something, or a test, and this appeared to be the stress that caused the physical activity.
MR GAGELER: It can be very much seen to be flares of emotion arising from frustration very much in the way described by Dr Wise and Mr Lord as arising from the underlying brain injury.
KIRBY J: Could I ask a question, because I am not entirely clear on the written submissions. There is a suggestion in your written submissions that the point on which the first respondent succeeded before the Federal Court was not exactly what was run before the Commissioner, or have I misunderstood that? Was a distinction run at what I will call the trial between the disability and the behaviour? If it were not, I could at least perceive that that would be a matter upon which factual and expert evidence would be addressed. Was it run at trial or was it not? I would like to know that very clearly in my mind.
MR GAGELER: The answer is that it was not run at trial. It was common ground at the trial that Daniel suffered a disability. The point that emerged - and the precise nature of that disability ‑ ‑ ‑
GUMMOW J: It depends what you mean by “trial”, does it not?
MR GAGELER: I am sorry, the hearing before the Commissioner. The precise nature of that disability ‑ ‑ ‑
GUMMOW J: There has never been a trial in any judicial ‑ ‑ ‑
MR GAGELER: I accept that.
KIRBY J: I am the one who used it. I withdraw the word “trial” - the hearing where the facts are found. I could understand that facts might be differentially found if this issue were in contest or if it were not. That is why I raised the matter. It is a Holcombe v Coulton‑type point.
MR GAGELER: Yes. Your Honour, can I say that we do not take any point in the appeal about the way in which the matter was conducted in the hearing.
If I can then come to the Commissioner’s findings as to why Daniel was suspended and then excluded from the school. They are somewhat diffuse, but in the end they come down to a finding that Daniel was suspended and then excluded from the school because Mr Bartley, the principal, so decided and that Mr Bartley so decided, at least in part, because Mr Bartley consciously, deliberately and with the most benign of intents formed the view that the school would not tolerate Daniel’s aggressive behaviour.
KIRBY J: You are being a bit unfair to him. It was Mr Lindsay, the first principal, who declined even to, as it were, give it a trial. It was Mr Bartley who thought there should be an attempt to integrate. There were then these five incidents and it was at that point, notwithstanding pressure from the teachers union, that Mr Bartley made his decision, which presumably he did in the discharge of his responsibilities.
MR GAGELER: I am not attempting in any way to be unkind or unfair to Mr Bartley and I fully accept that he made the decisions that he made with the very best of motives and that he was the principal, unlike the previous principal, who at least attempted to integrate Daniel into the school. At the end of the day he made the decisions and he made them because he took into account specifically Daniel’s aggressive behaviour and took it into account in a way that resulted in action that was adverse to Daniel.
In relation to the five suspensions, the particular behaviour, with the possible exception of the first where there appears to have been no record and no recollection of precisely what it was, was either a kick or a punch that precipitated the suspension. The circumstances of each are recorded in great detail at pages 37 to 47 of the appeal book and the Commissioner’s conclusions separately for each are recorded in similar detail at pages 110 to 115.
GLEESON CJ: What was Daniel’s age at the time?
MR GAGELER: Thirteen.
GLEESON CJ: Thank you.
MR GAGELER: What the conclusions amount to is this, that on each occasion Daniel was suspended Mr Bartley made the decision to suspend on the ground of some particular behaviour that had just been engaged in and a decision was found by the Commissioner in each of the five cases to be made in accordance with what he described as “two policies”. One was the general “Discipline Policy” for the school that is described at pages 58 to 59 and the other was what was described as a specific “Welfare and Discipline Policy for Daniel”, referred to at pages 59 to 60. Both of those, the general and the specific, embodied what Mr Bartley described, understood and implemented as a zero tolerance policy to violence. That position is summarised by the Commissioner at page 115, line 15.
GLEESON CJ: Were there findings by the Commissioner as to what alternative courses of action were open to Mr Bartley?
MR GAGELER: There are findings by the Commissioner that Mr Bartley did not call in aid the services of experts who may have suggested more appropriate methods of managing Daniel’s behaviour.
GLEESON CJ: Was there any information as to what those more appropriate methods might have been?
MR GAGELER: Yes, there was really quite a lot of evidence about that. I can give your Honour a number of references. Perhaps it is better if I do that in due course.
GLEESON CJ: Yes.
MR GAGELER: Now, in relation to the exclusion, there was no further specific incident that precipitated that. Daniel was excluded, never came back to school after the fifth suspension. The circumstances of the exclusion are recorded at pages 52 to 53 of the appeal book. The Commissioner’s conclusion about the exclusion is recorded at pages 115 to 118 and emerges most clearly at page 118 lines 31 and following, where the Commissioner says that he finds that:
Daniel’s exclusion was more broadly based than just the last suspension. It related to Daniel’s behaviour leading to the five suspensions, and throughout the period of his enrolment at SGHS. It also related to Mr Bartley’s judgement that Daniel could not operate in a regular high school environment as a result of his disability. Mr Bartley’s underlying reasoning – unlike that for his decision on the suspensions – included issues broader than just behavioural.
That is returned to by the Commissioner at page 134 line 11, where, amongst other things, it is said that:
Mr Bartley’s decision was taken as a result of Daniel’s behaviour, which Mr Bartley believed impacted on the safety and welfare of Daniel, other students and staff.
Your Honours, in the light of those findings of fact, the case for discrimination under section 5 of the Act reduces really to three propositions which we propose to develop at varying length but which we state at the outset with unashamed simplicity. The first proposition is that Daniel’s behaviour is not simply the result or consequence of his disability; Daniel’s behaviour forms part of his disability. The consequence of that is that discrimination upon the ground of his behaviour is, in our submission, discrimination on the ground of his disability. That proposition was in substance adopted by the Commissioner at page 125 of the appeal book line 44 to page 126 at line 12. That proposition was challenged and rejected in the Federal Court in the sense of the Federal Court finding that it reflected an error of law, and it forms the subject matter of the first ground of appeal.
The second proposition is that Mr Bartley’s decisions to suspend and then exclude Daniel were taken because of Daniel’s behaviour and therefore because of Daniel’s disability, within the meaning of section 5 of the Act, simply on the basis that Mr Bartley took Daniel’s behaviour into account as a reason for his action. In our submission, Mr Bartley’s motive, intention or other reasons for so acting are irrelevant to that characterisation. That is a proposition which was in substance adopted by the Commissioner at page 134 line 11, again, page 138 line 20. It was not challenged in the Federal Court, but it is challenged by the State’s notice of contention.
The third proposition is that Mr Bartley, by his actions, treated Daniel less favourably than in materially identical circumstances he would have treated a person without Daniel’s disability, the proper comparison being between how Mr Bartley in fact treated Daniel and how Mr Bartley would have treated Daniel, or any other Year 7 student, without Daniel’s behaviour. That proposition was in substance adopted by the Commissioner at page 136 lines 1 to 30. Again, it was challenged and rejected in the Federal Court as exhibiting an error of law and it forms the subject matter of the second ground of appeal.
Your Honours, we propose to develop the propositions in that order but before doing so may we go to the Act and make a number of general observations about it.
KIRBY J: Is your comparator “just another Year 7 student” period, or is it a Year 7 student without the mental and behavioural disability which you say is one?
MR GAGELER: The second, your Honour. Your Honour will hear me saying that the comparator issue falls away once the causation issue is resolved, and I will be taking your Honour to some recent House of Lords authority about that. When I say, a number of general observations about the Act, there are four. The first is that, looking at the structure of the Act, it contains in Part 1 in section 4 a generic definition, relevantly of disability. I do not want to go into the detail of that for the moment.
It contains in sections 5 and 6 generic definitions, respectively, of direct discrimination and indirect discrimination. Then those generic definitions are applied in Part 2 to prohibit what is described as “disability discrimination” in a range of specific contexts, including but not limited to education – section 22, the particular provision with which we are concerned. The other contexts, as your Honours see, include work, access to premises, provision of goods, services and facilities and other things; the point being that the generic definitions of disability and discrimination need to operate, obviously, in a meaningful and workable way across the entirety of that range.
The second general point to be made is that in most, but not all, of the contexts in which disability discrimination is prohibited there is an exception or exemption on one or other of two bases. One is the inherent requirements of the job, which your Honours looked at in X v The Commonwealth. The other is unjustifiable hardship, a term that is explained, rather than defined, in section 11 of the Act. The very existence of the exemption for unjustifiable hardship indicating that accommodating, dealing with a person with a disability in a non‑discriminatory way may impose a burden on a person or an institution and it is only when the burden rises to the level of being unjustifiable hardship that the exemption will cut in.
Your Honours will see in section 11 that unjustifiable hardship is an objective concept. It does not turn simply upon the reasoning or motivation or understanding of the alleged discriminator. Your Honours will see that it takes into account what is described as:
all relevant circumstances of the particular case –
and that it takes into account, in paragraph (a):
the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned;
that that goes beyond simply the nature of the detriment likely to be suffered by the person claiming unjustifiable hardship.
GLEESON CJ: What does section 11 bite on that is relevant to this case?
MR GAGELER: Nothing, and that is part of the problem, your Honour, because if one goes to section 22 ‑ ‑ ‑
GUMMOW J: Subsection (4), is it not?
MR GAGELER: Yes, but your Honours will see that section 22 is divided in subsections (1) and (2) between the circumstances of a person being admitted as a student, that is subsection (1), and the treatment of a person once admitted as a student, that is subsection (2), and subsection (4), which introduces an exemption for unjustifiable hardship, is applicable to a subsection (1) scenario, but not a subsection (2) scenario.
GLEESON CJ: I think I understand that, but if you look at the concluding words of subsection (4), it is the reference to hardship “on the educational authority”.
MR GAGELER: Definitely.
GLEESON CJ: How would that pick up danger to students? I can understand how that would pick up the possibility of behaviour like burning down the school, but what about behaviour like attacking other pupils?
MR GAGELER: Obviously the educational authority runs an institution and has certain obligations, some legal, some moral, some practical, in the way it deals with its students, so it is unjustifiable hardship to the educational institution, but in addressing the unjustifiable hardship to the educational institution the relevant circumstances include the way in which people within the care of the educational institution may be affected.
KIRBY J: Does this Act apply to private educational institutions?
MR GAGELER: Yes.
KIRBY J: I saw somewhere a quotation from the former Disability Discrimination Commissioner - it may have been in the primary decision‑maker’s findings - to the point that it would be impossible to raise unjustifiable hardship in this case not only on a statutory basis but that because of the multimillion dollar resources of a State educational authority it would be impossible to contend that it would be unjustifiable hardship on it. That did not seem a very persuasive contention. I mean, even in a multimillion dollar enterprise there would be a point reached, one would think, that it would be unjustifiable and in particular when considering the claims of other pupils in the system.
MR GAGELER: Yes. Your Honour, of those two reasons the first was enough; the second we would not seek to defend. It is irrelevant for present purposes.
KIRBY J: You say it is irrelevant because of subsection (4), that it only arises at the entry. Once you are in, no question of unjustifiable hardship arises at all, period.
MR GAGELER: Yes. That is right. Now, that may reflect a deficiency in the drafting of the Act.
GLEESON CJ: I am not sure that that is all there is to it, Mr Gageler. I understand why it suits your argument to say that hardship to other pupils would be comprehended by subsection (4) but because of the structure of section 22 it is not relevant to this case, although it could be relevant to a slightly different case.
MR GAGELER: Yes.
GLEESON CJ: But if in fact unjustifiable hardship on the educational authority does not comprehend considerations of threats to the welfare of other pupils, then that might bear upon the meaning of the provisions with which we are concerned, might it not?
MR GAGELER: I accept that it might.
KIRBY J: That is what the Full Court said. They said it would be such a bizarre interpretation that you could not take it into account, that it sets you searching for another interpretation. They said words to that effect.
MR GAGELER: They did say words to that effect. Your Honour, in our submission, it is really quite simple. It can be take into account. There is no reason why it is not comprehended within the relevant circumstances. In section 11(a) it is spelt out, in our submission. There have been cases in the Federal Court that have considered the unjustifiable hardship exemption in subsection (4) as applicable in relation to admission of a student to a school.
KIRBY J: Was that Justice Mansfield’s decision, was it?
MR GAGELER: There is a decision of Justice Mansfield and there is also a decision of Justice Tamberlin. Both are referred to in footnote 6 of our submissions in-chief. Neither of them, I must say, your Honour the Chief Justice, considered the position of other students within the school. As I said, there might well be a deficiency in the drafting of the Act in that subsection (4) is not applicable to subsection (2) ‑ ‑ ‑
GUMMOW J: What do you mean by “deficiency”? Why is it deficient? It does not help you.
MR GAGELER: I mean that if subsection (4) applied to subsection (2) one could readily imagine that this case would have been fought as a subsection(4) case, as the other two cases to which we have referred were fought. One would not have been straining with the definition of “disability”, one speculates, your Honour. I use the word “might”.
The two points I wanted to make about it are these. One is that one ought not distort the generic definitions to achieve a result that could well be achieved by an exemption applying. Secondly, that there is a capacity in any event to address a particular case by the Commission granting upon application a specific exemption under section 55 of the Act. Such an exemption was never sought in this case, although it was, amongst other things, noted by the Commissioner as a possibility.
GUMMOW J: It would be limited to five years, would it not?
MR GAGELER: It would be, yes, and it could be limited to a particular student; it could be limited in a number of different ways. The effect of an exemption, as one would expect, is given by section 58, that is that “This Part does not render it unlawful” where an exemption is applicable.
KIRBY J: But that is the deficiency and it does not seem to be an incorrect use of words because a child could be admitted apparently normal and then start manifesting the behaviour within a day or so of being admitted. On the construction that you say is the proper construction of subsection (4), the department has stuck with it and that does not seem a very rational outcome that if you can, as it were, take the point before admission you should, one would think, in a rational system be able to take the point after admission when facts become known.
MR GAGELER: Yes, your Honour, we accept that. That is really the reason why I described it I think as an omission.
KIRBY J: The difficulty of pressing the Full Court’s construction point is that it is as good for the step before admission as it is after admission.
MR GAGELER: That is right and really gives subsection (4) in the case before admission no work to do.
HAYNE J: You say “no work to do.”
MR GAGELER: I am sorry, your Honour, that is overstated.
KIRBY J: That was an advocate’s flourish.
HAYNE J: Considerably, is it not?
MR GAGELER: I will go back to where I ‑ ‑ ‑
KIRBY J: You are only allowed one of those, Mr Gageler.
GUMMOW J: You are turning into a common lawyer.
MR GAGELER: I have been quite well behaved so far, your Honour.
HAYNE J: We will take that as the threat it is intended as.
MR GAGELER: Your Honours might note two other exemptions in passing. One is section 48 which deals with infectious diseases which is, in our submission, the answer to the “Typhoid Mary” example referred to by the Full Court at page 212 of the appeal book, line 20. Your Honours might also note section 28(3), particularly paragraph (a), which, in our submission, would be enough to deal with the “schizophrenic rugby player” referred to by the Full Court at page 211 line 56.
The third observation we wish to make is that the structure of the Act, and to a large extent its detail, is drawn from the Commonwealth Sex Discrimination Act 1984. Indeed, sections 5 and 6 of the 1992 Act adopt pretty much precisely the language and structure of sections 5 and 6 of the 1984 Act, and section 22 of the 1992 Act, in large measure, adopts the language and structure of section 21 of the 1984 Act. The Commonwealth 1984 Act in turn being modelled very closely on the English Sex Discrimination Act 1975 and the basic structure of those provisions that define direct and indirect discrimination being reflected also in the English Race Relations Act 1976.
GUMMOW J: That comes out of the United States, does it not? It comes out of the American Case law, does it not?
MR GAGELER: Not really, your Honour. There are some broad ‑ ‑ ‑
GUMMOW J: I mean the English have it got to some extent, have they not?
MR GAGELER: Yes.
GUMMOW J: I am not talking about us but the English.
MR GAGELER: But the formulation used by the English appears to us to date from 1975.
GUMMOW J: Yes, but they had some working party that went off to the United States.
MR GAGELER: Yes, but what they did not do was to pick up the United States provisions. They picked up some concepts that are embodied in the United States cases ‑ ‑ ‑
GUMMOW J: The United States provisions are so loosely expressed that they would revulse any ‑ ‑ ‑
MR GAGELER: Yes, that is right, but, really, all I was seeking to make out of this, your Honour, is that the authorities concerning the operation of the direct and indirect discrimination provisions under those Acts, particularly the two English Acts and the 1984 Commonwealth Act, are, in our submission, directly relevant to the construction of sections 5 and 6 of this Act.
One difference to be borne in mind between this Act and the English provisions is that this Act contains section 10 not reflected in the English provisions, that section providing that if an act is done for two or more reasons and one of the reasons is the disability of a person, then for the purposes of the Act the act is taken to be done for that reason. The equivalent provision in the Sex Discrimination Act 1984 is section 8. Your Honours might note that in the Anti‑Discrimination Act 1977, the New South Wales Act considered in Banovic in 1989, there was no equivalent. An equivalent was inserted in 1994, that being section 4A.
KIRBY J: One thing just confused me a little there. There was a reference, I think in your written submissions, to a section 4A and to a section 10, that it was introduced in 4A. Now, how did it become section 10?
MR GAGELER: No, I am sorry. Section 4A was introduced into the 1977 New South Wales Act after the decision in Banovic.
KIRBY J: I see.
MR GAGELER: It reflects, in broad terms, what section 10 of this Act reflects, your Honour.
GLEESON CJ: May I ask you a question about the way section 10 works. If an act is an act of exclusion from a school and the act is done for the reason that the behaviour of a pupil is threatening the life or safety of another pupil or other pupils, is that act done for one reason or two reasons?
MR GAGELER: It could be seen as two or three but provided ‑ ‑ ‑
GLEESON CJ: Or one?
MR GAGELER: Or one. It is sufficient, your Honour, and I will come to this in some detail - it is really the second of the propositions I want to develop - that a reason for the exclusion was a manifestation of the disability, to use neutral language. It matters not why that reason was adopted and it matters not that there might be other reasons.
GLEESON CJ: I was only really intending to ask a question about the meaning of section 10 and what it means to say that an act is done for two or more reasons in a context of the kind that I had mentioned.
MR GAGELER: I am sorry.
GLEESON CJ: “I exclude you because your behaviour is threatening to the life of another person”.
MR GAGELER: Yes.
GLEESON CJ: Am I excluding you for one reason or two reasons?
MR GAGELER: Two.
GUMMOW J: Why?
KIRBY J: Is that because you say within the word “behaviour” is imported the nature, extent, degree and cause of the behaviour, which in this case you contend is part and parcel of the disability?
MR GAGELER: I certainly say that, but I am not sure that that is itself an answer to the Chief Justice’s question. But the answer perhaps does not turn so much on section 10 as on section 5.
GUMMOW J: What is the significance of these phrases “because of” in section 5, “on the ground of” in 32 and “reason” in section 10? Are they interchangeable?
MR GAGELER: Yes, they are. I will come to that. The answer to your Honour the Chief Justice’s question lies less in studying section 10 than in studying section 5 in the light of section 10, but I will come back to that.
The final general observation that I wanted to make - and this is really turning to the concept of disability and the reason or purpose underlying the Act for the prohibition of disability discrimination - we accept the point made by the first respondent that there is little that one can gain from reading the objects of the Act in isolation, given that they use defined expressions. However, in our submission, there is much that can be drawn from reading those objects and indeed by reading the whole of the Act in the context of its international setting, a context which is pointed to by section 12(8) which ‑ ‑ ‑
GLEESON CJ: In the context of a problem such as the present, does the international context also include international conventions concerning the rights of the child? I am thinking about the other pupils.
MR GAGELER: Yes.
KIRBY J: Does it include – there is an international declaration that has not been formulated in a treaty, but it is more specific to the issue of disability.
MR GAGELER: Well, I was going to come to a number of the instruments. Your Honours, I am not here seeking to ‑ ‑ ‑
GUMMOW J: What happens when the instruments are at cross purposes?
MR GAGELER: Well, we do not discern any conflict between the instruments. I think the Vienna Convention on the Law of Treaties might say something about it, but we do not ‑ ‑ ‑
GUMMOW J: Well, we better know. If the Vienna Convention helps us, we better know.
MR GAGELER: Your Honour, if it is an issue, I will address it.
GUMMOW J: All I am mentioning is that a covenant with respect to the rights of the child is not mentioned in section 12(8). Is that a significant omission? Because if admitted, might it not have thrown up a problem?
MR GAGELER: Possibly.
GLEESON CJ: And a problem that you have endeavoured to answer by your construction of unjustifiable hardship.
MR GAGELER: Yes.
GLEESON CJ: But if your answer based on the construction of unjustifiable hardship is not compelling, then there is nothing in this Act that addresses the rights of the other children who were affected by this child’s behaviour.
MR GAGELER: Correct. Your Honours, I do not wish to make an argument about constitutional validity, something that is not in issue. We readily accept the analysis contained in the second part of the Commonwealth’s written submissions on constitutional validity. What they point to in summary is this, that if one looks at section 12(8)(b), section 22 of this Act can be seen as giving effect to Article 26 of the Covenant on Civil and Political Rights; that if one looks to section 12(8)(c), it can be seen as giving effect to Article 2 and Article 13 of the International Covenant on Economic, Social and Cultural Rights and that it can be seen by reference to section 12(8)(b) as relating to matters of international concern, it being highly significant for the purposes of construction, in our submission, that the Act was enacted in 1992, which was the final year of the United Nations Decade of Disabled Persons, a decade during which the international understanding of the nature of disability and the needs of disabled persons was developed considerably.
Can I take your Honours very briefly to the second of the conventions that I have referred to, that is the International Covenant on Economic, Social and Cultural Rights. It is behind tab 3 of our bundle of additional material. Your Honours see in Article 13, sufficiently I think in the first sentence, that:
States Parties to the present Covenant recognize the right of everyone to education.
A substantive human right. And in Article 2 clause 1 ‑ ‑ ‑
KIRBY J: As I understand it, the factual issue was that the Department never contested the right to education. Its contention was that your client should go to a special education class in the Grafton High School and you wanted to go to the local high school and be integrated in the mainstream.
MR GAGELER: That is right.
KIRBY J: So there was never a doubt about the right of access to education.
MR GAGELER: I am really invoking this for the purposes of construction rather than at the level of factual application, your Honour. I wanted to draw your Honours’ attention to Article 2, clause 1 and clause 2, which refers to discrimination and refers to “other status”. It is the case that whatever may have been the understanding at an earlier stage, the international understanding of “other status” had well enough developed by 1992 to include the status of disability. That is something that is developed at some length in the Commonwealth’s written submissions and we are prepared to adopt what is there said, but it also a point made in the document that we have extracted at tab 4 of our bundle. I do not wish to take your Honours to anything in particular in that.
As I said, the 1992 Act came at the end of what was described as the United Nations Decade of Disabled Persons. That decade began in 1983 but it was preceded relevantly by a document that appears as a schedule to the Human Rights and Equal Opportunity Commission Act 1986. In Schedule 5 your Honours see a declaration that was made in 1976, Declaration on the Rights of Disabled Persons, and I simply ask your Honours to note clause 1 of that declaration where disability is defined broadly in terms of a functional limitation resulting from some underlying pathology; clause 6, which refers to disabled persons having certain things that would now be labelled as substantive human rights, and clause 10, that refers to, amongst other things, protection from discriminatory treatment. As I said, that was a declaration passed before international understanding developed quite to the sophisticated level that it did during the 1980s.
The decade to which I referred really commenced with the World Program of Action concerning Disabled Persons, to which your Honours will find a reference behind tab 11 of our bundle, that was something adopted by the United Nations General Assembly in 1982. I ask your Honours to note at page 2 about point 3 the heading “Objectives” and the paragraph that follows. I ask your Honours to note page 3 about point 5, there is a heading “Definition” and there is an adoption for the purposes of this resolution of a distinction that had been made by the World Health Organization, distinction between impairment, which one might describe as the underlying pathology, disability, which one might broadly describe as a functional limitation arising from the underlying pathology.
GLEESON CJ: Disability seems to be a negative sort of concept. The part to which you are now referring seems to be limited to an inability to do something.
MR GAGELER: Yes, an inability to perform within a range that might be described as normal, but it is not an inability to do something in particular that is the handicap. So one gets the underlying pathology is the impairment, one gets the functional limitation is the disability, and then the disadvantage that flows from having that functional limitation in various areas of endeavour is described as a handicap.
GLEESON CJ: Does this apply to somebody who is, for example, a pyromaniac? A child who enjoys setting fire to premises, how do you apply this to that?
MR GAGELER: Yes, it is a very hard case but, your Honour, it may well be that medical evidence would establish that pyromania was the result of an underlying psychological dysfunction and pyromania would then be a disability.
GLEESON CJ: Well, certainly an impairment I should think.
MR GAGELER: Yes.
GLEESON CJ: Well, it is the concept of disability.
MR GAGELER: Yes.
CALLINAN J: How many schools would he be allowed to burn down?
MR GAGELER: None, practically, sensibly, obviously.
CALLINAN J: It is all very well legislating for these things, but finding the resources and appropriating them in such a way as is fair may obviously raise entirely different questions, which arise, as perhaps the Chief Justice has intimated, under other provisions of the covenant, and I do not think they can just be swept aside.
MR GAGELER: I hope to deal with them, your Honour.
HAYNE J: What are we to make, for present purposes, of this tripartite linguistic approach? It is there, but what use do you say we should be making of it, if any, in connection with the Federal Act?
MR GAGELER: I will be saying that the Federal Act in defining “disability” ought to be read as defining it no more narrowly than the international understanding of that term as it had developed in 1983 and developed further through the relevant decade. That is, the particular language must be read in the light of a purpose to effect what is the substantive goal of providing for equality of opportunity of people with functional limitations.
HAYNE J: But in the course of those submissions, you will no doubt identify the process of construction which you would seek to have us engage, to move from this instrument and its particular use of language to the adoption, apparently perhaps by analogy, of a like approach in a different instrument, namely the Federal Act. No doubt you will come to that.
MR GAGELER: It does not cause me any problem, your Honour. I will come to it, but what I am seeking to show – and really working backwards, your Honour – the language of the Act is to be construed in the light of the legislative purpose. The legislative purpose could be seen simply in the international context, but it comes through very clearly from the second reading speech. The reference to “disability” in the Act ought be read in the light of an intention on the part of Parliament to implement the sort of substantive equality for persons with disabilities that was being actively discussed in the international community from 1983 onwards.
Your Honours might also note at page 3 at paragraph 8 the statement that “Disabled people do not form a homogenous group” and in the last two lines:
all encounter different barriers, of different kinds, which have to be overcome in different ways.
There are then definitions of “Prevention”, “Rehabilitation” and “Equalization of Opportunities”. Equalisation of opportunities is dealt with at paragraph 12 over the page, and what is being dealt with very much is equal access to what would generally be described as substantive human rights. Equalisation of opportunities is picked up again at page 6, heading at the top of the page – your Honours might note in particular paragraph 25 ‑ and is addressed further at page 21 at the bottom of the page. There is a heading “Equalization of Opportunities LEGISLATION”.
Paragraph 108 and 109 are relevant, and then paragraph 120, page 23, deals specifically with education and training and says that:
Member States should adopt policies which recognize the rights of disabled persons to equal educational opportunities with others. The education of disabled persons should as far as possible take place in the general school system. Responsibility for their education should be placed upon the educational authorities and laws regarding compulsory education should include children with all ranges of disabilities, including the most severely disabled.
HAYNE J: Now, are these statements of obligation binding on Australia or are they statements of aspiration?
MR GAGELER: They are very much statements of aspiration. These were statements made at the beginning of a decade. The statements made at the end of that decade, your Honour, I am about to come to. They are behind tab 8.
HAYNE J: I understand that, but what I am missing is what is the intermediate step that you would have us take between these aspirational statements and the task which confronts us, which is a task of construing a piece of federal legislation.
MR GAGELER: Your Honour, I am sorry if I have not made that clear. Your Honours need to read the words in context – CIC Insurances. Your Honours need to read the words by reference to the subject matter, purposes and scope of the Act.
HAYNE J: Namely the subject matter and purposes considered by the Parliament of the Commonwealth.
MR GAGELER: Exactly. Your Honour, I am doing this chronologically, and I will take your Honour to the second reading speech where very much the concerns that I have identified from the international instrument are reflected in the concern of the Parliament. But also I have taken your Honour to section 12(8) and particularly paragraphs (c) and (e) which specifically identify the relevant provisions of the Act as being designed to give effect to the international covenant that I have taken your Honours to and to relate to matters of international concern. Here I am identifying those matters of international concern which must be taken into account in the construction of the particular provisions.
GUMMOW J: Well, do not slide out of subsection (8) so fast. Paragraphs (a), (b) and (c) talk about “give effect to”, right?
MR GAGELER: Yes.
GUMMOW J: Paragraphs (d) and (e) say “relate to”.
MR GAGELER: Yes.
GUMMOW J: And the matters of international concern may be purely aspirational.
MR GAGELER: Yes.
GUMMOW J: And in the Industrial Relations case we talked about the difficulty with translating aspirational matters of international concern into domestic norms, mandatory in nature.
MR GAGELER: Yes.
GUMMOW J: Now, how does that all fit here? You seem at the moment to be taking us to “relate to”.
MR GAGELER: Yes. Perhaps it will emerge, your Honour, when I get to the second reading speech. I am not seeking to delay that for very much longer.
GUMMOW J: All right.
MR GAGELER: But can I ask your Honours to note at the end of the decade there was the further resolution of the General Assembly that appears at tab 8. Without labouring it, your Honours will note that the General Assembly, tab 8 page 1 at the bottom of the page, adopted what was described as standard rules on the equalisation of opportunities for persons with disabilities. They formed an annex to the resolution. The annex then appears in the subsequent pages. Its status as perceived by the international community is set out at page 4, looking at the numbers at the top of the page.
KIRBY J: What is its status in international law? Is it simply something that contributes to the development of customary international law?
MR GAGELER: That is the way it is described in paragraph 14 on that page, yes.
At page 5 your Honours will note a reference to “Fundamental Concepts in Disability Policy” and again there is a reference to the terminology of “disability” and the terminology of “handicap” which were drawn from the same source, the World Health Organisation source. The term “disability” being referred to in paragraph 17, as summarising a great number of different functional limitations occurring in any population in any country of the world. Again, the focus is very much on functional limitations. Across the page, page 6, there is a reference to what is meant by “Equalization of opportunities”, paragraphs 24, 25 and 26.
GLEESON CJ: The definition of “disability” in the Disability Discrimination Act seems wider, does it not, than where there is a functional limitation?
MR GAGELER: It perhaps is, your Honour.
GLEESON CJ: I am right in thinking, am I not, that the relevant part of the definition of “disability” that we are concerned with is paragraph (g), “a disorder . . . that results in disturbed behaviour”?
MR GAGELER: Yes, the intervener suggests paragraph (a) and we would adopt that as well, that is simply a “loss of . . . mental functions”.
GLEESON CJ: But if “disability” covers any form of “disorder . . . that results in disturbed behaviour”, it goes well beyond functional limitations, does it not?
MR GAGELER: The definition does but your Honour has to recall that the definition is then only fed into particular provisions which deal with things like access to education, access to premises.
GLEESON CJ: Yes, quite.
MR GAGELER: I will not labour this any further but if your Honours note pages 10 and 11 of the document, amongst the target areas for equal participation as defined are education, and very much what is being looked at in education, particularly rule 6, clauses 1 and 2, is education of disabled persons in an integrated setting.
Against that background may I come to the second reading speech, which is tab 13, and I was doing it this way because the second reading speech makes much more sense when read against that background. It said in the first column, page 2750, that:
The Bill will assist all people with disabilities to exercise their rights as Australian citizens and represents a landmark in achieving human rights for all Australians.
People with disabilities are entitled to the same rights and the same opportunities as all other Australian citizens.
GUMMOW J: This Act does not just apply to Australian citizens though.
MR GAGELER: Pardon me?
GUMMOW J: You do not have to be an Australian citizen to have the benefit of this Act.
MR GAGELER: No, they are the principal beneficiaries. It is not expressed with legislative precision.
GUMMOW J: No, it is discriminatory. It is an irrelevant…..discrimination.
MR GAGELER: Your Honour might be right. Then the next page at about point 3 of the left-hand column:
This Government has a long term commitment to achieving a better deal for people with disabilities. The Government began the process of expanding opportunities for people with disabilities in 1983 –
That date is significant, that is the beginning of the decade. A little further down after the reference to the Disability Services Act:
The Act requires that services for people with disabilities be provided in a manner consistent with their rights as Australian citizens and as human beings.
That probably covers the rest.
GUMMOW J: Yes.
HAYNE J: Do not push it, Mr Gageler.
GUMMOW J: You said this was going to make it all clear.
MR GAGELER: It is all relative, your Honour.
KIRBY J: It might be used as the receptacles of human rights.
MR GAGELER: Very much. What one sees is a reflection, domestically, of the concerns expressed about as clearly as the international community ever expresses anything in the documents I have just taken your Honours to and in an attempt to implement, domestically, the programs that are being referred to in those international documents.
HAYNE J: An alternative view is that this is an entirely proper and appropriate set of political statements by a minister in the course of a debate in the legislature, but to what end does that go in assisting us with the construction?
MR GAGELER: Your Honour, everything has to be read in context. The context for this piece of legislation is that it comes at the end of a not just a limited process but a whole decade of international community focusing very much on the nature of disability and the nature of what ‑ ‑ ‑
GUMMOW J: What are the concrete points of construction? We are going to have to come to that at some stage.
MR GAGELER: I am about to come to that.
GUMMOW J: You have already outlined it to us.
MR GAGELER: Yes.
GUMMOW J: How does this throw light on that as favouring one construction rather than another?
MR GAGELER: In two ways. One is that the focus of the international concern and the focus of the legislation, that is, the central purpose of the legislation is substantive equality of opportunity and treatment.
GUMMOW J: Yes. What if the international concern is formulated by people with perhaps an inadequate understanding of practical realities?
MR GAGELER: One cannot assume that. That is point one. That is, what is the Act driving at? In our submission, substantive equality of opportunity and social change. Two, in that context, the concept of disability - that is the central concept of the Act, in our submission - is informed by the construction of the legislative definition, is informed by the concept as defined internationally, that is, it is to be read consistently with that international conception and as an attempt, legislatively, to encompass what might be encompassed within the international conception.
HAYNE J: So the adoption of one of three terms consistently used in the international writings but the failure to adopt the other two is somehow said to involve the adoption of the meaning in the international writings, is it?
MR GAGELER: Your Honour is probably attempting to make me put a submission that is more precise than I wish to put.
GUMMOW J: Well, that is not unusual.
HAYNE J: I try sometimes, Mr Gageler. I do not often succeed.
MR GAGELER: I do not wish to put it that precisely because the nature of the subject matter does not lend itself to such precision. Your Honour, there is a defined term “disability”. I will say that the defined term “disability” is informed by both of the things to which I have referred, that is the substantive purpose of the international instruments and of the Act and, two, by the internationally accepted concept of disability. Then your Honour asks about the third – the first does not matter; that just gives rise to the second, impairment giving rise to disability – the handicap, is really what is addressed in each of the substantive provisions of the Act. Section 22 is about removing handicaps to disabled persons in education.
GUMMOW J: Am I right in thinking that your primary use of this material is to support your attack on the interpretation in the Full Court of the Federal Court of the term disability as one that did not apply to your client?
MR GAGELER: Yes, that is exactly right. If I have used too many words to say that ‑ ‑ ‑
GUMMOW J: Can you do that without recourse to this material or is it essential to your ‑ ‑ ‑
MR GAGELER: It is not essential, but it certainly helps.
GUMMOW J: I would not have thought it was essential myself.
MR GAGELER: No, but I do not just use things that are essential, your Honour. I am really invoking the entirety of the context and the entirety of the context is very helpful. Your Honours note the reference, page 2751, at the bottom of the left-hand column, to being:
Now, at the end of the United Nations Decade of Disabled Persons, I think it timely to be able to introduce legislation which will extend these principles –
that is, the principles already in part embodied in the Disability Discrimination Act to all walks of life. Your Honours note the rest of that paragraph and then the next two paragraphs at the top of the next column. Now, with that as being as far as I wish to take the second reading speech, can I come to the definition of disability ‑ ‑ ‑
GLEESON CJ: Now, before you depart from the international material, Article 19 of the Convention of the Rights of the Child obliges:
States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence –
Does that have any relevance to the construction of the Act insofar as it bears on a case like this?
MR GAGELER: I may have missed the end of the text that your Honour read out.
GLEESON CJ: Has an obligation to:
take all appropriate legislative . . . and educational measures to protect the child from all forms of physical or mental violence ‑ ‑ ‑
MR GAGELER: Well, one, it is obviously not an instrument that is referred to in the Disability Discrimination Act; it does not therefore have the bearing of the ‑ ‑ ‑
GLEESON CJ: And Article 3 of the same Convention provides that:
States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform –
to international standards with respect to safety and health.
MR GAGELER: Yes. The instruments to which I was referring show that obviously there is a balance to be struck, I accept that, but the balance which was formerly struck by institutionalising those persons who might have been seen to be a problem to others, beginning in the 1970s and certainly throughout the 1980s, became to be struck in another way. Those problem‑causing people were sought to be integrated into the mainstream and the problems that they caused were sought to be accommodated up to a point, and the point in this Act, in our submission, was struck by the legislature adopting a formula of unjustifiable hardship in some contexts and other defences in other contexts.
GLEESON CJ: A particular problem arises once you define “disability” as including any disorder resulting in disturbed behaviour.
MR GAGELER: Yes, but that is the definition in the Act.
KIRBY J: But the suggestion, as I understand it, is that once you open up the Pandora’s box of international law and international developing law principle, that you cannot just take the good. You have to take it all. That involves taking the Convention on the Rights of the Child, the obligation to protect other children, and in a sense if you are construing Australian domestic law to conform as far as possible with its obligations under international law then the provisions in the Rights of the Child Convention may give some support to the construction which found favour in the Full Court of the Federal Court.
MR GAGELER: As a general proposition I cannot deny the relevance of all international instruments to a provision that identifies itself as relating to a matter of international concern. What I have sought to do is to focus upon those specific provisions in international law that direct themselves to persons with disabilities and the education of those persons with disabilities, and what those particular provisions do is, one, adopt a particular concept of disability and, two, seek to provide for substantive equality of opportunity in an integrated environment.
GUMMOW J: But am I right in thinking, Mr Gageler, that you accept that section 12(8)(e) includes the Convention on the Rights of the Child?
MR GAGELER: Yes, I cannot deny that. If I can then finally get to the definition, your Honours. In our submission, in the light of the international material, one ought not strive for a construction that produces a conception of discrimination for the purposes of the 1992 Act which is narrower than that which had been adopted and developed internationally throughout the previous decade. In our submission, that definition of “disability” is concerned fundamentally with functional limitations, that is an inability of a person to act within what might be thought of as a normal range. It is not concerned simply with the underlying physical or pathological condition that might give rise to that functional limitation.
Now, in our submission, quite independently of the international material, one could get to that construction simply by focusing upon paragraph (a), which is concerned with a loss of function. One gets it from paragraph (e), which is concerned with a malfunction as much as a malformation or disfigurement of a part of a person’s body. Paragraph (e) includes the speech impediment as well as the cleft palate. It includes the limp as well as the club foot.
The same basic idea, in our submission, follows through into those paragraphs which refer to cause and effect. The effect is as much a part of the disability as the cause. If one looks at paragraph (c), the disability, in our submission, is not just the organisms, it is also the disease or illness that results. Using an example that was very much in the minds of the legislators, it is not just the HIV, it is the AIDS as well. Discrimination on the grounds of AIDS, as much as discrimination on the grounds of HIV, falls within paragraph (c). In paragraph (f), in our submission, the resulting learning difficulty is a part of the disability and, in paragraph (g), the “disturbed behaviour” is as much a part of the disability as the underlying disorder.
GLEESON CJ: Did you tell us a little earlier – I think you did – that there is some exception here for infectious diseases?
MR GAGELER: Yes, section 48.
GLEESON CJ: Thank you.
MR GAGELER: Now, in our submission, your Honours, that reading, contrary to the view taken by the Full Court, involves no violence to the language. The dichotomy that the Full Court saw as being drawn where the focus of the definition was said to be simply on the underlying disorder or malfunction and not on ‑ ‑ ‑
KIRBY J: How did the Full Court deal with (g), the specific reference to behaviour? I just find it hard to ‑ ‑ ‑
MR GAGELER: The Full Court said it is the underlying disorder or illness ‑ ‑ ‑
GUMMOW J: Perhaps you had better look at the nub of it in the Full Court of the Federal Court. What is the central passage that you attack?
MR GAGELER: Probably 209, paragraph 28, about line 45. That was very much an adoption of the reasoning of Justice Emmett ‑ ‑ ‑
GUMMOW J: Just a minute. The second-last sentence of 28, “This is made quite explicit”. I am not sure I understand that.
MR GAGELER: What I think the Full Court is saying is that the disability, looking at the language of the definition, is the “disorder, illness or disease” of a particular character, that is one that results in disturbed behaviour. So here it would be the brain damage, but in the definition “disturbed behaviour” is not part of the disability.
KIRBY J: That seems to be error because it is not distinguishing, it is including.
MR GAGELER: That is my point.
KIRBY J: It is simply basic that in the definition, “means”, and it includes (g), so it is not distinguishing between them, it is embracing it.
MR GAGELER: Exactly.
GUMMOW J: Now, this is one of those definitions that has “means” and “includes”, does it not?
MR GAGELER: It has “means”, I am not sure it has – yes.
GUMMOW J: Yes. Now, there are cases about this.
MR GAGELER: Yes, and your Honour has decided the leading case, I think.
GUMMOW J: I do not know about that.
MR GAGELER: Well, I think it has been picked up many times ‑ ‑ ‑
KIRBY J: Almost certainly.
GUMMOW J: There were cases in the 1960s in this Court on this question, that definitions that say “means” and then definitions that say “includes” and then definitions that say “means and includes”, and it is significant. The significance of it may not have been apparent to those who wrote paragraph 28 in the Full Court judgment. So I think it is important. The Motel Marine Case is one, I think, in 110 CLR. There were others, though.
MR GAGELER: Yes. Your Honour, the “means” part, clearly enough, is a comprehensive definition, or it attempts to be a comprehensive definition. The “includes” part, where any ambiguity might sometimes arise is whether the “includes” part of the definition is intended to go beyond the “means” part were it simply to amplify part of the “means” part.
GUMMOW J: That is the question.
MR GAGELER: That is the question. It is not a question I need to address in the present case.
GUMMOW J: You may do if you want to persuade me, Mr Gageler.
MR GAGELER: In those circumstances, your Honour, the “includes” in this definition, in our submission, is something that amplifies rather than extends the “means” part of the definition.
KIRBY J: The juxtaposition appears to be deliberate, that there is a core, there is a core circle which is what it means, and then there is a conundrum around that which ‑ ‑ ‑
MR GAGELER: Yes. There is a definition of “disability” and then the inclusive part clearly enough picks up the “means” part because it “includes a disability that”.
GLEESON CJ: Leaving aside the complication from paragraph (k), the drafter could have achieved the same result by saying “includes a disability, past, present or future”.
MR GAGELER: Yes, thank you, your Honour. I have taken your Honours to the critical passage in the Full Court’s judgment. I think the critical passage in Justice Emmett’s judgment is page 178, paragraph 40.
GLEESON CJ: In fact, you could comprehend (k) by saying, “includes a disability, real or supposed, past, present or future”.
MR GAGELER: Yes.
GUMMOW J: What was that reference to Justice Emmett again?
MR GAGELER: Page 178, paragraph 40 – 37 and 40, probably.
GUMMOW J: Thank you.
MR GAGELER: Your Honours, I do not wish to unduly labour this construction point but we do point out in our written submissions that the construction that includes the result of this order not only flows, in our submission, from the language read in its context but it is really consistent with the approach that has been taken in another area that is concerned with functional limitations, and that is the workers compensation cases. We refer to those in footnote 17 of our submissions in‑chief. Can I very briefly take your Honours to just two. One is the decision of Commonwealth Banking Corporation v Pervical (1988) 20 FCR 176. In the judgment of the Full Court, if I can pick up the passage at the bottom of page 179:
Question 3 –
before the Court was identified as turning:
its attention to the finding of the Tribunal that Mr Percival’s work with the Bank brought on, at the time, symptoms of the disease from which he suffered and thereby aggravated the disease. It was submitted by –
counsel that the relevant case -
had been wrongly decided and that the disease of which –
the Commonwealth Act spoke consisted of the -
underlying pathological condition and not the symptoms thereof. This was a brave submission made without reference to any medical evidence suggesting that symptoms of the disease do not form part of a disease and also without reference to the definition of “disease” ‑ ‑ ‑
GLEESON CJ: You are turning this into an argument ad hominem, Mr Gageler.
MR GAGELER: Your Honour notes the way that the court deals with it at the bottom of that page.
GLEESON CJ: Some advocates never give up. Is a way of expressing your argument that if the Full Court were right, then an educational authority would be able to say, “We are not dealing with you this way because of the Tourette syndrome; it is because of that dreadful language that you use”?
MR GAGELER: Exactly, yes. So that is personal, your Honours.
McHUGH J: What do you say as to the proposition that the effects clause and the results clause are adjectival clauses that describe the disorder illness or disease and that is their only function and those adjectival clauses distinguish a disorder, for instance, that does not affect a person’s thought processes or results in disturbed behaviour? So that the section really is concentrating on “a disorder, illness or disease” in paragraph (g), for example.
MR GAGELER: Yes. Your Honour, really, the answer is encapsulated by the example given by the Chief Justice and that is that so to read the provision would really denude the prohibition against discrimination of all content in the case of some ‑ ‑ ‑
HAYNE J: Well, is that right? Do you accept that “disturbed behaviour”, when referred to in (g), will include some behaviours which are criminal behaviours?
MR GAGELER: Potentially, yes.
HAYNE J: Thus, in dealing with (g), there can be cases in which the “disorder, illness or disease” identified is one that results in criminal behaviours?
MR GAGELER: Your Honour, when I said potentially, I had in mind difficulties that would arise with respect to mens rea, for example, and I drew your Honour’s attention to the evidence in this case about Daniel’s understanding, but potentially, your Honour, there would be ‑ ‑ ‑
HAYNE J: I am attempting to move away from this case in time, but there can be, can there not, disorders that result in disturbed behaviour, that are criminal behaviours, indeed for which the person concerned will be held criminally liable?
MR GAGELER: Potentially.
HAYNE J: And thus, if one treats the words following “that results in” as having relevant work to do greater than limiting the broader field described as “disorder, illness or disease”, cases can be imagined, can they not, where it is said that discrimination occurs because someone is held responsible for or because someone seeks to avoid the occurrence of criminal behaviours?
MR GAGELER: Yes.
HAYNE J: And the only solution which you proffer to that in the Act is the application in limited circumstances of the hardship provision or the exemption provisions, is that right?
MR GAGELER: Correct, yes.
GLEESON CJ: Might not part of the answer lie in the construction of section 10, the question about what constitutes a reason for the discrimination?
MR GAGELER: Yes, or – and I will come to this. Really this is the second point to which I was about ‑ ‑ ‑
GLEESON CJ: A child can be guilty of unlawful homicide, I mean somebody under the age of 18, and the unlawful homicide could take the form not of murder but of manslaughter for reasons of diminished responsibility.
MR GAGELER: Yes.
GLEESON CJ: That would be a case, would it not, or could be a case where the offender is suffering from a disorder that results in disturbed behaviour?
MR GAGELER: Yes.
GLEESON CJ: Exclusion of a person who threatened to engage in behaviour of that kind or was thought likely to behave in that manner on the ground of the safety of the potential victim would not be exclusion on the ground of the disorder, would it?
MR GAGELER: In our submission, it would be. I will come to that point immediately. That is really the causation question. In our submission, the answer to that question and the answer to the causation issue in the present case turns on the meaning to be attributed to the words in section 5 of the Act because of the aggrieved person’s disability.
GLEESON CJ: I only asked the question, Mr Gageler, because I am wondering whether there might not be a connection between what you are identifying as two separate questions. I am wondering whether there might not be a connection between the question of the construction of disability and the causation issue and whether the observations that have been made by Justice McHugh and Justice Hayne might not bear upon that connection.
MR GAGELER: Yes, but I am just not sure how to take it any further at this stage, your Honour. Can I deal with the causation issue and then perhaps return to it once I have dealt separately with that?
GUMMOW J: This Act binds the State Crown, does it not?
MR GAGELER: Yes, section 14.
GUMMOW J: And unless you are careful, your construction of section 5 will impact upon the enforcement of the State criminal law, will it not?
MR GAGELER: No, your Honour. We are not here talking about a general prohibition against all discrimination. That really is the point. We are talking about people with disabilities who face handicaps in particular areas and those particular areas are addressed in different ways.
HAYNE J: But how is that engaged in the case of the teenage child – again, I take an example deliberately divorced from the facts of this case – the teenage child who is a known sex offender? Is the school bound both to admit and to leave the child in that mainstream school without taking account of that fact?
MR GAGELER: Your Honour, that is, if I may say so, an example with which I would readily grapple. The teenage child who was a known sex offender is a person with human dignity who is entitled to an education.
HAYNE J: Just so, but is the school to take no account of that?
MR GAGELER: No, of course not. That is really what section 22(4), amongst other things, is direct to; that is to deal with this child, to give this child an education in an integrated environment will occasion some burden to the school. There would have to be supervision and various measures taken. It is at the point where that rises to the level of unjustifiable hardship that there is an exemption.
McHUGH J: But you cannot just brush aside the general criminal law of the State. Supposing a teacher or one of the pupils obtained an apprehended violence order against the complainant in this particular case and the Department has said, “Because of that we just cannot allow the pupil to come to school here”. Now, is that a breach of section 22? Is the apprehended violence legislation invalid insofar as it would seek to ‑ ‑ ‑
MR GAGELER: No. Your Honour, if Mr Bartley made the decision and Mr Bartley said, “I cannot allow a child to come to school in circumstances where a teacher has an apprehended violence order against that child”, then Mr Bartley’s reason for suspending or excluding the child would be the existence of the order under State legislation. Now, that is not discrimination, I accept that.
KIRBY J: Well, query whether a magistrate could make such an order that would be running into the provisions of a federal Act.
GUMMOW J: That is the question.
KIRBY J: It seems very doubtful to me. I do not think you should concede that that could be done.
MR GAGELER: I do not need to concede that it can be done to deal with really the question that I thought was being addressed, and that is the nature of direct discrimination.
McHUGH J: No, it is not for or against you. It is just that I am putting to you that I just do not think you can disregard the State law context when dealing with this ‑ ‑ ‑
MR GAGELER: Your Honour’s example is one where the reason – and I take it to be the only reason – for the exclusion of the child from school is the existence of an order under State law.
McHUGH J: Yes, but the problem that I see, or may be there, is that the breach of the order would be the manifestation of this disability, and although in one sense you are using the order to exclude, in another sense it is because of the manifestation of a disability.
MR GAGELER: Well, really, that brings me to the causation issue and what does because of the agreed person’s disability mean and, in our submission, what one looks to in section 5 is the reasoning adopted by the alleged discriminator for treating, or proposing to treat, the aggrieved person in a particular way.
McHUGH J: It is a tragedy that the legislature adopted the form of section 5 and section 6. I would have thought that experience in other areas of the law would have told heavily against it and, indeed, my understanding is that some of those responsible for the drafting of the legislation were opposed to the introduction of the section.
MR GAGELER: Your Honour, it has been commented on ‑ ‑ ‑
KIRBY J: Is that in that Melbourne University Law Review article, where there is apparently an article on the history of the legislation? Is that where we can find that, because I am not aware of this.
MR GAGELER: The precise point that Justice McHugh mentioned, no, I do not think it is in that, and I am not sure where it comes from, but can I say this, in answer to your Honour’s ‑ ‑ ‑
KIRBY J: I would not like his Honour to have more knowledge on this than I do.
McHUGH J: I am sure it is there as a matter of history; I am sure it was there and it came up before the committee, I think, that was dealing with this legislation.
MR GAGELER: Not that we are aware of, your Honour. We will look into that, perhaps over lunch.
KIRBY J: You do footnote a case where there was an exemption and at some stage, because the problem that is concerning the questions and that, in a sense, you conceded, so it was said, that this is a hard case, the problem is respecting the rights of a disabled child and respecting the rights of mainstream children and of teachers that they will not get kicked and they will not have their education disrupted and how one makes that adjustment is the problem. Now, if it could be demonstrated that there was an alternative, the special education class, and that if it got too difficult an exemption can be granted and that then the child would go to the special education class, and the endeavour to mainstream has been seen as having failed, then the Act works reasonably well.
But, if it is a difficult thing to get out of the Commission the exemption, and that just does not happen very often or is difficult to secure, then the balance that is concerning these questions is not struck and that then leads you to a question, well, is that such a bizarre consequence that that therefore is not the kind of disability that you are talking about or not the kind of causation that you are concerned with, because the mind does not like to have to face up to a solution that is so absolute that protects the right of the disabled child to the complete neglect of mainstream children.
MR GAGELER: Yes, but your Honour, a problem with focusing on the hard case is that the hard case is not the usual case, and the Act has to be given a sensible, workable, practical operation in the usual case and in the case of the extreme behaviour, and this case gets somewhere towards the extreme end of the spectrum, I accept, one can point to the existence of exemptions and possible exemptions as reasons for not what, in our submission, amounts to distorting the usual operation of the provisions. The case your Honour may be referring to is a decision of Justice Mansfield in a case described as A School v Human Rights and Equal Opportunity Commission 55 ALD 93. I do not wish to take your Honour to the precise provisions of that, but there is a discussion, particularly at page 104, about the operation of that exempting provision in a case where ‑ ‑ ‑
KIRBY J: That was a section 55 exemption, was it?
MR GAGELER: No, that was a section 22(4) exemption. I do not think we have any cases dealing with section 55 exemptions.
GUMMOW J: The case on meaning includes that I could not call to mind is Y.Z. Finance Company v Cummings 109 CLR 395, particularly Justice Menzies at 405.
MR GAGELER: Thank you, your Honour.
CALLINAN J: Mr Gageler, could I just ask you a question about the definition. You place weight upon (f) and (g), is that correct?
MR GAGELER: Yes. For the purposes of the conduct found by the Commissioner one places weight on (g) and, in the alternative, on (a).
CALLINAN J: Well, Mr Gageler, (g) makes an internal distinction between the “disorder, illness or disease” and the results or consequences or effects of it.
MR GAGELER: In our submission, it is not a distinction that amounts to a dichotomy. What is included in the concept of disability is the totality.
CALLINAN J: I understand what you put. Assume for present purposes that it does have a dichotomy in it which might at least be arguable, perhaps. Why do you not place weight on (e)? Why is it not possible to say that malfunction and the behaviour are one and the same?
MR GAGELER: I am sorry, your Honour, I have drawn in (a); by parity of reasoning I ought to draw in (e), yes.
CALLINAN J: Perhaps (e) even more clearly in a sense because it does not speak of results or effects; it speaks of the “malfunction”, and the malfunction of the brain is the same as, perhaps ‑ ‑ ‑
MR GAGELER: The behaviour itself, yes, I am sorry, your Honour. If I can make it clear, we invoke (g), (a) and (e).
GLEESON CJ: Mr Gageler, textually what is it that links section 10, which refers to “reasons”, with section 22 that refers to “on the ground of”?
MR GAGELER: One starts with section 22 which is the prohibition. To find out what “on the ground of” means, one goes to section 5. Section 5 does not in turn refer to reasons.
GUMMOW J: It says “because of”.
MR GAGELER: It says “because of”.
GUMMOW J: Do any of these sections, including ones we do not have to look at immediately, use the word “reasons”?
MR GAGELER: No, but, as I said, your Honour, this is all based on the Sex Discrimination Act. I am not sure if your Honours have that.
GUMMOW J: Yes.
MR GAGELER: But the equivalent provisions of the Sex Discrimination Act use the words “by reason of” rather than “because of”.
GUMMOW J: Is there section 10 in the Sex Discrimination Act?
MR GAGELER: Yes, section 8. It really reflects the somewhat loose but equivalent use of language in this field, hence my submissions that in the Sex Discrimination Act in describing various forms of what can be described as direct discrimination section 5 uses “by reason of”, section 6 uses “by reason of”, section 7 uses “because of” and then section 8 says that:
A reference in subsection 5(1), 6(1) or section 7A to the doing of an act by reason of a particular matter includes a reference of the doing of such an act by reason of 2 or more matters –
in the same terms as section 10. In our submission, the same sort of link ought be made between the “because of its” ‑ ‑ ‑
GUMMOW J: Otherwise section 10 will do no work.
MR GAGELER: That is exactly right, yes. It links into “because of”. If I can come back to that question of what is the meaning of those words “because of”, in our submission, it looks to the reasons of the discriminator for treating or proposing to treat the aggrieved person in a particular way, it being sufficient that a reason is the aggrieved person’s disability and it mattering not that there might be other reasons or that the aggrieved person’s disability as a reason is seized upon for some overriding, probably benign purpose.
GLEESON CJ: But if, as here you say is the case, the disability is the disturbed behaviour and if the disturbed behaviour is threatening to the welfare or safety of people for whose welfare or safety you are responsible, why is not there only one ground of action?
MR GAGELER: There is the adoption of a criterion of action, that criterion itself being the protected condition, that is, for the very best of motives one seizes upon something that the legislature has said may not be used as a criterion for adverse treatment. I will develop that. I want to take your Honours to a decision of the House of Lords but before I do so can I come back to the point your Honour Justice McHugh was making a little earlier, and that is the lamentation that has been expressed a number of times in decisions of this Court of the use of what are described as artificial definitions rather than a simple definition that is perhaps being used in the United States to refer to direct discrimination.
McHUGH J: I have never understood why the legislature does not use the definition of “discrimination” that Justice Gaudron and I used in Castlemaine Tooheys.
MR GAGELER: That is an excellent definition, your Honour.
KIRBY J: You have to say that but the bottom line is that the legislature spells this out because, especially in this area, it does not trust courts.
MR GAGELER: Your Honour, what I seek to say is that the legislature has not moved away from your Honour’s definition. The legislature has embodied that – your Honour’s concept - legislatively, what it has it has done in section 5 is to say that a person’s disability – this is your Honour’s language, I think - is an irrelevant consideration or a prohibited distinction. That is what it has done in section 5 and it is really as simple as that.
McHUGH J: Except the definition is more rigid. It is like codifying the law. It is like the Sale of Goods Act or the Bills of Exchange Act. You codify the law so principles cannot develop. That is part of the problem. But, before you go on to this question of causation, you are not saying, are you, that in (g) the “disorder, illness or disease” is composed of “a disorder, illness or disease that affects a person’s . . . or that results in disturbed behaviour”, are you? Are you saying that what I have described as the adjectival clauses are definitive of the “disorder, illness or disease”?
MR GAGELER: No.
McHUGH J: No, it cannot be.
MR GAGELER: No.
McHUGH J: I mean, take AIDS. Now, in its late stages it will affect a person’s thought processes and may result in disturbed behaviour but if somebody says, “I’m going to exclude you from employment because you have AIDS independently of disturbed behaviour or affecting your thought processes”, you have been excluded by reason of a disability.
MR GAGELER: Yes, very much. I wanted to take your Honours to two cases dealing with the causation question. One is the relatively recent decision of the House of Lords in the case of Nagarajan v London Regional Transport [2000] 1 AC 501 and the other is a decision of the Federal Court in Mount Isa Mines (1993) 46 FCR 301, a decision in relation to the Sex Discrimination Act.
Can I start with the House of Lords decision. This case was concerned with the Race Relations Act that contains in section 1(1), which your Honours will see at page 517, a definition of discrimination that includes, in paragraph (a), direct discrimination, using the same sort of verbal formula with which we are here concerned. It contains in section 2(1) on the next page a prohibition against victimisation that is expressed in somewhat similar language. Your Honours will note that the discrimination provision refers to being treated “on racial grounds”. The victimisation provision your Honours will pick up just after 518C, refers to the treatment of a person “by reason” of.
The case was concerned directly with the construction of section 2(1), that is, the victimisation provision, but the House of Lords said that the victimisation provision causation test was the same as the discrimination causation test. What was actually held in the case was that victimisation or discrimination can be subconscious as well as conscious. The particular passages that I wanted to take your Honours to are in the speech of Lord Nicholls at page 510, picking up the last line on that page, where his Lordship said that:
in every case it is necessary to inquire why the complainant received less favourable treatment. This is the crucial question. Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job? Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator. Treatment, favourable or unfavourable, is a consequence which follows from a decision. Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances.
The crucial question just mentioned is to be distinguished sharply from a second and different question: if the discriminator treated the complainant less favourably on racial grounds, why did he do so? The latter question is strictly beside the point when deciding whether an act of racial discrimination occurred. For the purposes of direct discrimination under section 1(1)(a), as distinct from indirect discrimination under section 1(1)(b), the reason why the alleged discriminator acted on racial grounds is irrelevant. Racial discrimination is not negatived by the discriminator’s motive or intention or reason or purpose (the words are interchangeable in this context) in treating another person less favourably on racial grounds. In particular, if the reason why the alleged discriminator rejected the complainant’s job application was racial, it matters not that his intention may have been benign. For instance, he may have believed that the applicant would not fit in, or that other employees might make the applicant’s life a misery. If racial grounds were the reason for the less favourable treatment, direct discrimination under section 1(1)(a) is established.
There is then reference to the two earlier decisions of the House of Lords that are said to support that proposition. The second of them is probably the most famous, that is the James v Eastleigh Borough Council Case where, no doubt out of the best of motives, the local council decided that it would lower the admission charge for entry into a swimming pool for persons of pensionable age, and it just happened that the pensionable age for women was different from that to which it was for men. Therefore, with the most benign of motives, the council had adopted a discriminatory criterion ‑ ‑ ‑
GUMMOW J: That was section 6 case, was it not?
MR GAGELER: No, it was not. It was a section 5 case.
GUMMOW J: Was it?
MR GAGELER: Yes. It really demonstrates the point that Lord Nicholls is making, that is, it is the adoption of the discriminatory criterion that is discrimination on the ground of, or because of, and it matters not that there may have been some overriding and quite benign purpose.
At the bottom of page 512H and the top of page 513 his Lordship deals with the question of multiple reasons. What he says in effect is that provided that the prohibited distinction was a significant substantial reason one finds discrimination. The second case that I want to ‑ ‑ ‑
GUMMOW J: Wait a minute.
MR GAGELER: I am sorry.
GUMMOW J: How did this case actually pan out? What was the argument, if the argument ‑ ‑ ‑
MR GAGELER: The argument was about the point that I had mentioned earlier, that the Tribunal had found that the alleged discriminator, which was an interviewing panel, had acted “consciously or subconsciously” by reference to the fact that the applicant had made a previous complaint of discrimination, and the argument that was being presented was that acting subconsciously was not enough to constitute a breach of section 2 of the Act, and that argument was rejected.
KIRBY J: The first holding in the headnote says that you do not need conscious intention to discriminate.
MR GAGELER: That is right.
KIRBY J: I think that that was floated by some decisions in this Court at some stage, was it not, that you had to have conscious intention or purpose?
MR GAGELER: Yes, I will come to those in a moment. The discrimination lies in the adoption of a discriminatory criterion, consciously or subconsciously, and irrelevant of the reason why that criterion might be adopted.
HAYNE J: That appears to have been common ground in the argument of the case, see Lord Steyn page 519D to E.
GUMMOW J: Yes, and 505G and H.
MR GAGELER: It is the statement of principle that, in our submission, is correct, compelling and ‑ ‑ ‑
GUMMOW J: I am just wondering what they were debating about, that is all.
MR GAGELER: It was whether one could have subconscious discrimination. That was the ‑ ‑ ‑
GUMMOW J: No, no. You look at the argument at 505G and H. That is why I am trying to find out what the case is all about.
KIRBY J: Well, Lord Browne-Wilkinson, who is dissenting, on page 510 says:
we were not referred to any case under section 1(1)(a) . . . which holds that a factor not present to the conscious mind of the defendant is capable of being a racial “reason” or “ground” –
So his Lordship was not prepared to accept the concession.
MR GAGELER: Yes. Lord Browne-Wilkinson had been a member of the Court of Appeal that was overturned in James v Eastleigh Borough Council.
GUMMOW J: Yes, that is right.
MR GAGELER: The views his Lordship expresses are the views that he adopted at that earlier time. Indeed, your Honours will see he seizes upon the dissenting speeches in James.
GUMMOW J: But speeches are at such a great level of generality. I am not sure how they are locked into any particular facts. Perhaps we find it best with Lord Steyn, do we?
MR GAGELER: Perhaps I mischaracterised what the issue in the case was. As I understood it, it was the conscious/subconscious distinction which was the basis of the Court of Appeal’s ruling that is referred to in Lord Steyn’s speech at the bottom of page 516. In any event, your Honours, it is the statement of principle that I have read that I seek to rely upon, which, in my submission, is the position to which the United Kingdom courts have come and it is consistent with views that have been expressed in this Court as well.
Can I go to Mt Isa Mines 46 FCR 301. This was a case where the discussion is somewhat complicated because it focused upon the interaction between two pieces of Commonwealth legislation, the National Occupational Health and Safety Commission Act and the Sex Discrimination Act. There was a draft occupational standard that your Honours will see at page 303 which provided for women who were pregnant or breastfeeding, amongst others, to be excluded from working with lead, and the obvious reason for that was a concern about the health of those persons. The challenge was brought, not to those provisions of the draft occupational standard, but to the provision which your Honours will see is 14(1)(d) page 303, where the criterion for exclusion included:
such other basis as may be permitted under relevant anti‑discrimination legislation.
That was held by Justice Davies at first instance to be invalid, for reasons that need not concern us. Your Honours will see at the top of page 304 that is noted, and his Honour’s decision was upheld on appeal. But in addressing the issues in the case, some general observations were made about the operation of the Sex Discrimination Act and some comments were made about the distinction in the proposed standard relating to pregnancy and breastfeeding. The main judgment was that of Justice Lockhart; it was concurred in by Chief Justice Black and Justice Lee. Can I go first to Chief Justice Black’s concurrence at page 307, where a number of points are rather pithily summarised. At 307, about point 8, his Honour said:
There was no challenge to pars 14(1)(b) (pregnancy) or 14(1)(c) (breastfeeding) of the proposed standard so I express no opinion about whether conduct is in accordance with them might, in some circumstances, involve a contravention of the SDA. I would merely observe that what is reasonable –
that was a specific exemption –
will obviously vary according to time and circumstance.
I should mention some other questions that were raised in argument. I agree with Lockhart J for the reasons he gives that the presence of intention, motive or purpose relating to health does not detract from the conclusion that there is discrimination on the ground of sex where a woman is excluded from work in the lead industry in the circumstances to which his Honour refers.
I also agree with Lockhart J in his rejection of the view that the matters the SDA specifies as constituting unacceptable bases for differential treatment . . . can be relied upon to support the conclusion that the circumstances are not “the same” or are “materially different” for the purposes of s 5(1).
So in those two paragraphs his Honour is addressing, first, what might be called the causation issue and, secondly, what might be called the comparator issue.
Going to the judgment of Justice Lockhart, the causation issue is picked up at the bottom of page 321 where his Honour says:
In my opinion the phrase “by reason of” in s 5(1) of the SD Act should be interpreted as meaning “because of”, “due to”, “based on” or words of similar import which bring something about or cause it to occur. The phrase implies a relationship of cause and effect between the sex . . . of the aggrieved person and the less favourable treatment by the discriminator of that person.
His Honour then asks, “What is the test to be applied”. He refers to a debate that can be perceived in some of the cases about whether the appropriate test is what might be described as a “but for” test or a “but why” test. His Honour says at page 322, about line 7:
There is, in my view, less divergence between these schools of thought than –
might be suggested by some of that debate. At page 324 his Honour picks up and adopts for the purposes of the Sex Discrimination Act the analysis of Justice Clarke in the case of Waterhouse, which was decided under the 1977 New South Wales Act, a judgment with which your Honour Justice Kirby when President concurred. What is said in Justice Clarke’s judgment, if I can pick it up at about point 3, the second sentence in the quote, “In the latter case” – that is:
where the complaint is that one person has been the victim of discrimination . . . the relevant question directs attention at the particular characteristic of the complainant which, in fact, led to the decision or action of which complaint is made.
His Honour at page 326 point 2, again by reference to Justice Clarke’s judgment in Waterhouse, addresses the question of multiple reasons and quotes Justice Clarke, who:
adopted the test that it was sufficient to find “that marital status was a ground of the discriminatory action” –
His Honour said that he agreed with that test and referred to section 8 of the Sex Discrimination Act as reinforcing it in that context. In our submission, the same is true of section 10.
At page 326, right at the bottom of the page, his Honour addresses the issue of intention or motive. He introduces that by saying that:
Anti‑discrimination legislation must be understood, not only by statutory bodies that enforce it, but by all sections of the community because the implications and effects of the legislation could touch us all. It is important that the legislation is not approached and construed with fine and nice distinctions –
It then goes on and says:
If an employer in the lead industry took the view that it was dangerous to employ a female in the lead industry because of its perception of the level of lead which may affect reproductive capacity by reason of the danger of lead to an unborn foetus or to a baby who is being breastfed, this may constitute discrimination both on the ground of health and the ground of sex. To put the point another way, it would be the intention or motive of the employer, for the purpose of safeguarding the health of women in the employer’s workforce, that led it to discriminate against women. The presence of intention, motive or purpose relating to health does not necessarily detract from the conclusion that there is discrimination on the ground of sex.
His Honour makes it clear that he was talking about direct discrimination. To really complete my reference to this judgment, his Honour then goes on to deal separately with what might be described as the “comparator issue” for the balance of that page, the entirety of which, in my submission, is important. His Honour says that he rejects:
the view that the matters which the SD Act specifies as constituting unacceptable bases for differential treatment . . . can be relied upon to support the conclusion that the circumstances are not “the same” or are “materially different” for the purposes of s 5(1) –
and then picks up and adopts two statements in the reasoning of Sir Ronald Wilson, when President of the Human Rights and Equal Opportunity Commission, in Sullivan and Proudfoot. Without reading those, I ask your Honour to note them in particular.
GUMMOW J: Do you say, Mr Gageler, that, consistently with the swimming pool case Eastleigh [1990] 2 AC 751, if there was a policy adopted of a minimum tolerance of violence between students, or a minimum tolerance of violent behaviour by students, that that necessarily offends, because some of the violence would be caused or be attributable to what is involved in the disability?
MR GAGELER: Yes. Your Honours, the cases in this Court, in our submission, do not compel any different result. May I go to them – there are three of them – very briefly. The first is Banovic 168 CLR 165.
GUMMOW J: It does seem to me – just before you get onto that – that it is the swimming pool case that is the high‑water mark on your approach.
MR GAGELER: It is the best illustration, yes, but what I really seek to ‑ ‑ ‑
GUMMOW J: Because it is not about motive. They are not pondering motives. They just happen to have this rule, that you get in the swimming pool on these terms, you stay in the school on these terms and, if you do not, you are out. You say you cannot have that policy.
MR GAGELER: Yes.
GUMMOW J: That is what the headmaster thought he was doing. There was a finding that the departmental policy was not entirely accurately observed, but that is what they thought he was doing, implementing a policy.
MR GAGELER: That is right, yes. I did not take your Honours to the swimming pool case because, frankly, part of the reasoning can be a little bit distracting. It is the result and particularly the explanation of Lord Nicholls that really is what I rely upon.
GUMMOW J: They just think motive is all fanciful in these sorts of cases and ‑ ‑ ‑
MR GAGELER: Exactly. Sometimes factually exploring motives may lead you to a criterion that was employed, but not always.
GUMMOW J: Yes.
MR GAGELER: Now, the question in Banovic, your Honour Justice McHugh anyway will recall, was whether the last on/first off method of retrenchment constituted discrimination against women on the ground of their sex, given that women were the most recently employed employees. An argument was made that there were direct discrimination contrary to section 24(1)(a) of the New South Wales Act, that provision being set out at page 174. At page 176 point 5 Justices Deane and Gaudron addressed the question of motive in the paragraph beginning at that point. In our submission, what they say about putting motive to one side is correct and consistent with the House of Lords approach.
Their Honours, at the bottom of that page, and at the top of page 177, adopt the language of looking at the “true basis” of an act or decision. Perhaps the word “true” does not add very much to that statement other than that one looks for the real position and not simply what the alleged discriminator says, as a matter of fact. In our submission, those statements must be recognised as having been made before the inclusion of section 4A into that Act, which I previously referred to.
GUMMOW J: The reference at 177 to Eastleigh is to Eastleigh in the Court of Appeal, not the House of Lords.
MR GAGELER: Yes. So these statements were made before section 4A and before Eastleigh in the House of Lords. Nevertheless, in our submission, if one reads the “true basis” of an act as simply referring to a true basis, a real ground, a criterion which was adopted, then, in our submission, what their Honours are saying is entirely consistent with what the House of Lords has come to say.
GLEESON CJ: How long do you expect to require, Mr Gageler?
MR GAGELER: I think I can finish in 15 minutes, your Honour.
GLEESON CJ: What about you, Mr Basten?
MR BASTEN: Perhaps 30 minutes, your Honour.
GLEESON CJ: All right. How long do you think you will be, Mr Solicitor?
MR SEXTON: I was hoping to keep it to an hour, your Honour.
GLEESON CJ: We will adjourn now. We will resume at 2 pm.
AT 12.45 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.02 PM:
GLEESON CJ: Yes, Mr Gageler.
MR GAGELER: I was going briefly to the cases in this Court that had dealt with the causation issue. The second of the three that I wanted to go to was Waters v Public Transport Corporation 173 CLR 349. This was a case under the Victorian Equal Opportunity Act 1984, the relevant provisions appearing at page 355. Section 17 of that Act dealt with the concept of discrimination, subsection (1) we would now give the label of direct discrimination, subsection (5) indirect discrimination, although your Honours will note that there was a textual link between subsection (1) and subsection (5) that is missing from the Commonwealth and English provisions, and that is that subsection (5) was expressed to be for the purposes of subsection (1), which gave rise to an issue as to what extent, if any, there was an overlap between the two provisions.
At page 359 Chief Justice Mason and Justice Gaudron address the question of whether an intention or motive to discriminate is necessary for the purposes of section 17(1). The answer their Honours give to that question is no, and your Honours will see that there is a reference there to the decision of the House of Lords, this time in the Birmingham Case. At page 382 Justice Deane relevantly agreed with the analysis of the Chief Justice and Justice Gaudron.
Your Honour Justice McHugh at page 401 expressed some misgivings about that view. In our submission, the misgivings your Honour addresses are perhaps more concerned with the use of language, that is, the words “intention”, “motive”, “but for”, “by reason of” all carrying their own degrees of ambiguity and we do not perceive there to be, in substance, a difference between what your Honour was there saying and the approach of other members of the Court.
GUMMOW J: At the end of the day, this is the ticket on the Melbourne trams, is it not?
MR GAGELER: It is, and it really turned on subsection (5) not subsection (1). It was really an indirect discrimination, yes.
GUMMOW J: Yes, it was an indirect discrimination.
MR GAGELER: They were just some observations that are of some relevance and I have taken your Honour to those. The third case is IW v The City of Perth (1997) 191 CLR 1. The question there, as some of your Honours will recall, was whether the refusal of planning approval for an AIDS drop‑in centre breached section 66K(1) of the Western Australia Equal Opportunity Act of 1984, set out at pages 8 to 9. The majority of the court held that the section was inapplicable because the grant of planning approval was not the provision of a service. It was only the two dissentients, Justice Toohey and your Honour Justice Kirby, who therefore needed to go on to consider whether there was direct discrimination within the meaning of section 66A of the Act, that provision being set out at the top of page 8.
The complication in the case was that the decision was made by the council in full session, it was made by a majority of 13 to 12, and there was a finding of fact that some 5 of the 13 based their decision on what was described as the “AIDS factor”. That is a point your Honour Justice Gummow makes most clearly at the top of page 35. Relevantly, Justice Toohey at page 32, about point 6, certainly saw James v Eastleigh Borough Council as applicable to the Australian legislation.
At page 33 his Honour turned to the comparator issue and a contention with which his Honour was concerned is recorded at about point 3, that is:
The respondents contended that while the notional person to whom the impaired person must be compared in terms of s 66A is free of the impairment, that person retains the characteristics imputed to or which characterise the impaired person.
So the argument was being put, in effect, that this was really not discrimination based on AIDS because we would have treated anyone with an infectious disease in the same way. His Honour rejects that and he rejects that in part by reference to the same passage in the reasons of Sir Ronald Wilson, as I have already taken your Honours to in the judgment of Justice Lockhart in Mt Isa Mines.
Your Honour Justice Kirby addresses this issue at pages 63 to 64 and, as we read what your Honour there says, it is entirely consistent with the way in which we have sought to characterise the issue of causation, particularly at page 63 at about point 8 in the sentence beginning, “It is enough” to the end of that paragraph. On the comparison issue, your Honour deals with that at page 66 and the following couple of pages. Once again, your Honour picked up and applied the approach of Sir Ronald Wilson that your Honour quotes at page 67 at about point 8.
GUMMOW J: Mr Gageler, can we just look at the London Regional Transport Case [2001] 1 AC, in particular, the speech of Lord Steyn at the bottom of 518:
The issues arising for determination by the House are: (1) whether on a true construction of section 2(1) of the Act of 12976 a person alleging to have been victimised . . . the alleged discriminator was consciously motivated –
and that is rejected –
or whether it is sufficient to establish that the principal or an important cause of the less favourable treatment was the fact that the victimised person had done a protected act –
What is meant by the phrase “a protected act”? Are they the acts back in section 2?
MR GAGELER: Section 2(1).
GUMMOW J: Where do we find that ‑ ‑ ‑
MR GAGELER: I do not think it is a statutory term.
GUMMOW J: That is what mystifies me.
GLEESON CJ: The expression is defined on page 507 by Lord Browne Wilkinson, anyway, between E and F.
MR GAGELER: Thank you, your Honour. Yes, it is ‑ ‑ ‑
GUMMOW J: That is right. Then if one goes back to 518, they are set out there. In this case, the gentleman in question had complained in the past about mistreatment by the Regional Transport Authority on what looked like racial grounds. It was his past history that he said was being used against him.
MR GAGELER: Yes, and the finding was either consciously or subconsciously.
GUMMOW J: Yes, it does not matter.
MR GAGELER: No.
GUMMOW J: Now, how would you translate that posing of the issues there on 518 and 519 to this case? Can that not be translated at all?
MR GAGELER: It does not easily translate, in the sense that what was very much the focus of issue one was the conscious/subconscious distinction. The present case, on any view, involved conscious motivation, but if I can pick up, really, the third line ‑ ‑ ‑
GUMMOW J: It is the phrase “the principal or an important cause”.
MR GAGELER: Yes:
It is sufficient to establish that the principal or an important cause of the less favourable treatment –
GUMMOW J: Was – in this case it would have to be?
MR GAGELER: Was the fact of disability of the person.
GUMMOW J: Yes.
MR GAGELER: Or of an aspect of the disability of the person, or a characteristic of the disabled person.
GUMMOW J: Could you go to the James Case [1990] 2 AC 751 – the swimming pool case – again for a minute and the judgment of Lord Ackner, which has the advantage of not only being the shortest, but expressly written to assist comprehension by old age pensioners, so he says – the first paragraph.
GLEESON CJ: Even retired judges.
GUMMOW J: Exactly.
MR GAGELER: I am sorry, your Honour, what page ‑ ‑ ‑
GUMMOW J: Page 769.
MR GAGELER: Thank you.
GUMMOW J: 769F:
The council was applying a gender determinative formula for entitlement to free swimming. You had to be a person “who had reached pensionable age” (60 for women and 65 for men). Such a formula was inherently discriminatory.
Now, how can you apply that to this case, namely the education policy about violence in schoolrooms? You cannot say that is inherently discriminatory, can you?
MR GAGELER: Yes, you can, if you say that it affects ‑ ‑ ‑
GLEESON CJ: Violent people.
MR GAGELER: If you want to use that language. It has a substantive effect on people of a prohibited class, it is substantively different – I am sorry, no, I put it another way, and, in fact, if your Honour disregards that answer entirely, because that is slipping wrongly into indirect discrimination.
GUMMOW J: Yes, I was going to ask you about that.
MR GAGELER: Yes, well, I want to avoid it.
GUMMOW J: I know, that is why I wanted to ask you about it, but go on.
MR GAGELER: The criterion adopted within the policy is itself a criterion that picks up a prohibited distinction.
HAYNE J: The key to that being that the disability is identified either as or as including the tendency to violence.
MR GAGELER: Correct. Your Honour might see that I wince every time your Honour mentions violence. It is a word you do not find in Mr Lord’s reports, you do not find in the Commissioner’s reasons, other than to say it is an inappropriate word to describe the conduct of this boy.
GLEESON CJ: You might hear it in descriptions from other pupils of the conduct.
MR GAGELER: And one certainly saw it in the reports prepared by teachers.
GUMMOW J: Now, if this had been a section 6 case – and I am not convinced at the moment it should not have been a section 6 case, in any event – the reason why you shy off it, I imagine, is 6(b), is it not, paragraph (b) of 6?
MR GAGELER: I shy off it because, in our submission, section 6 is concerned with an imposition of a requirement or condition that is not, if I can use American terminology, ex facie discriminatory. Where you have the requirement or condition that is, itself, one that adopts a distinction based on race, based on disability, based on sex, one does not need to get there.
GUMMOW J: Now, how does one read 5 and 6 and 22? Does one read 22 twice, in a way, once hitched to 5 and once hitched to 6?
MR GAGELER: Well, this gets to the question, your Honour – and it has not been specifically addressed by me so far – that is whether section 5 and section 6 are mutually exclusive. Clearly they are definitional when one reads on the ground of disability in section 22 ‑ ‑ ‑
GUMMOW J: Yes, they are offering two definitions, if that is the way of putting it, of the phrase in the opening words in 22(1).
MR GAGELER: Yes, and, in our submission, there is no reason why the two provisions should be read as mutually exclusive. One can simply look at section 22 and go back to section 5 and 6 and say you cannot directly discriminate, nor can you indirectly discriminate, and apply each definition if necessarily consecutively.
GUMMOW J: I am not sure the existence of 6 does not throw some light on the phrase “because of” in 5.
MR GAGELER: Well, what it does not do, in our submission, is incorporate the notion of reasonableness inherent in paragraph (b) – and not only inherent, I am sorry, expressed in paragraph (b) of section 6. Getting back to your Honour Justice McHugh’s observation about the more general definitions of discrimination that have been proffered in this Court, particularly in a constitutional context, 5 and 6 really represent two limbs of the one notion of discrimination, that is, the adoption of a prohibited distinction, section 5, or, alternatively, the adoption of some general distinction that operates substantively in a different way with respect to the protected class.
HAYNE J: Is that not inverting the order of reading, that in effect you should be beginning with 22 in this case and you are amplifying 22 in two ways: one by reference to 5, one by reference to 6.
MR GAGELER: Yes, I agree with your Honour entirely.
GUMMOW J: The history of it is all bound up in the treatment of the Civil Rights Act, is it not, the United States?
MR GAGELER: Probably the Fourteenth Amendment.
GUMMOW J: 401 US 424, which construed it in such a way as to give rise to what was then called indirect discrimination and then the translation of that in the Anglo‑Saxon jurisdictions outside the United States into two sections.
MR GAGELER: Yes. Can I move quite briefly, your Honours, to the comparator issue. In our submission, the comparator issue is really quite simple. For the purposes of the comparison posited by section 5 the person without the disability is treated as a person who has none of the characteristics of the disability and one is essentially asking how would this aggrieved person have been treated without the disability. There are cases in which that issue might really give rise to a separate factual inquiry from the causation issue but there are cases where it is really part and parcel of the causation issue, that is, if the person was adversely treated because of the person’s disability, then the comparator issue is in effect answered by the answer to the causation issue.
That is not simply my idea; that is really what has been said in the most recent decision of the House of Lords, Shamoon, which your Honours have in the appellant’s bundle of additional material behind tab 2.
GUMMOW J: It is reported now in [2003] 2 All ER 26.
MR GAGELER: Yes, last week, I am informed. I will use the paragraph numbers if I may. Your Honours, this was a sex discrimination case. It arose under Northern Ireland legislation which was in similar terms to the English legislation and it was a case in which Chief Inspector Shamoon, a lady, was the subject of a complaint about the way she conducted an annual appraisal of a constable and her superintendent decided that he would take over the appraisal function himself. He said it was because of her conduct and she said it was because she was a woman, and she pointed to two male chief inspectors who she said were still conducting appraisals; they had not been subjected to the same treatment as her.
The case turned, at least in the way that it had been dealt with in the courts below, very much on the identification of the appropriate comparator. If your Honours open the judgment of Lord Nicholls of Birkenhead on the second page, that is how he identifies the issue. What Lord Nicholls says, particularly at paragraphs 7 through to 10, the passage being far too long to read but, in our submission, highly instructive, is that really there might be said to be two issues but at the end of the day it is really a question of asking why was this woman treated as she was. If she was treated that way because she was a woman, the comparator issue is immediately answered. If she was treated as the respondent suggested, because she had been the subject of complaint, then the comparator issue is answered another way. But there are cases, and this was one of them, said Lord Nicholls, when it really does not help to try to separate out those two questions.
Lord Hope said very much the same thing in his more lengthy speech, particularly paragraphs 44 to 49. Lord Scott at paragraphs 108 to 110, in our submission, makes some helpful comments about the function of the comparator. Lord Scott draws a distinction between what he describes as the statutory comparator, which might be a hypothetical person, and what he describes as evidential comparators, that is, people who would not meet the description of the statutory comparator but whose circumstances can be taken into account as a matter of evidence in attempting to infer one way or the other what the true reason, or a true reason, for the unfavourable treatment was.
I should also draw your Honours’ attention to Lord Rodger’s judgment, paragraph 131 and 132, in particular, where his Lordship points out error in the approach of the Court of Appeal which was to introduce some notion of reasonableness into the comparison issue. What the Court of Appeal said is in 131. His Lordship’s rejection of it is in 132. Your Honours, can I just deal with a couple of loose ends.
KIRBY J: There was a reference to a decision in the Supreme Court of Canada. Is that relevant to us, given that I assume that was on the basis of the Charter?
MR GAGELER: We have not sought to rely upon Canadian authority for that very reason, your Honour. The loose ends. Your Honour the Chief Justice asked about the alternatives open to Mr Bartley to manage Daniel’s behaviour. Can I give a number of references? One is at page 103, line 30. There is a reference to Mr Lord having prepared a report and having offered to come to the school to assist in the management and behaviour. That offer was not taken up. At pages 65 to 66 there is references to the evidence of Ms Brooks, who was a program officer with the Department of Community Services, who referred to communication strategies with Daniel that appear not to have been taken up. At pages 44 to 45 – this is probably the most significant – there is a reference to a behaviour management report that had been prepared by two gentlemen within the Department of Education, Messrs Callan and Garrard. The report was given to a Mr Phillips, who was the district superintendent.
KIRBY J: What do these points go to?
MR GAGELER: The question was what options may have been open to Mr Bartley to manage Daniel’s behaviour.
KIRBY J: At the South Grafton school?
MR GAGELER: Correct, yes. The Callan/Garrard report appears to have been quite an extensive document dealing with behaviour management strategies given to Mr Phillips and for some reason not provided by Mr Phillips to Mr Bartley, and there is comment upon that at pages 108 to 109 and page 137 line 35 where the Commissioner says things might have been different if that report had been provided to Mr Bartley.
Your Honour Justice Callinan asked about Daniel’s current status. Apparently the terminology “ward of the State” is no longer used in New South Wales. The relevant legislation is the Children and Young Persons (Care and Protection) Act 1998, and that applies only to a person who is a child, defined as someone up to the age of 18 years. So upon him attaining the age of 18 years he ceased to fall within the protection of that Act. In fact, he is still living with his foster parents and in fact he’s still being funded by the Department of Community Services. I could give your Honours a couple of references to the provisions of that Act.
GUMMOW J: Why is the appellant not on his own behalf now in this Court?
MR GAGELER: Because Mr Purvis was the respondent to the application under section 5 of the AD(JR) Act.
KIRBY J: Now, the matter went back to the Federal Magistrates Court pending the appeal to this Court, or to the Full Court. What is the point of the matter being heard by the Federal Magistrates Court consistent with the decision of the Full Court?
MR GAGELER: Well, there may be little point. Your Honour, the facts may well have been found differently, and they might well be found differently on a rehearing.
KIRBY J: So now the Magistrates Court or the Federal Court take the place of the Commissioner of the Human Rights Commission, is that correct?
MR GAGELER: That is right. There was a significant amendment to the machinery provisions of the Disability Discrimination Act. They were taken basically out of the Disability Discrimination Act and put in the Human Rights and Equal Opportunity Commission Act. There are complex transitional provisions. The one that catches this case is regulation 4 of the Human Rights Legislation (Transitional) Regulations 2000, which had the effect of seizing upon the remitter and deeming the President to have terminated the complaint under the new provisions of the legislation which had the effect of allowing, and indeed requiring, proceedings to be commenced in the Federal Magistrates Court to enforce the provisions. If your Honour wants a more complex or detailed answer, I probably should provide it in writing.
KIRBY J: If you succeed, it is relatively simple, the appeal to the Federal Court is dismissed by this Court. But if you fail, what order then takes effect?
MR GAGELER: If I fail, Justice Emmett’s order stands.
KIRBY J: That has not been affected by the supervening ‑ ‑ ‑
MR GAGELER: Justice Emmett’s order stands. The matter has been remitted to the Human Rights and Equal Opportunity Commission. The effect of the transitional regulation is that the proceeding before the Commission terminated and the effect of termination is then to allow proceedings to be commenced in the Federal Magistrates Court.
GUMMOW J: We had better know about that specifically, I think.
MR GAGELER: Yes, I think it may be best if I give your Honours a note on it.
GUMMOW J: Because the order at 188 disposing of the AD(JR) matter was to remit the matter to the Commission to decide according to law.
MR GAGELER: Yes, and then the effect of the regulation to which I have referred is to seize upon that event, the remitter, and to say that there is
a deemed termination of the proceedings before the Commission. I will give your Honours a note. If the Court pleases.
GLEESON CJ: Thank you, Mr Gageler. Yes, Mr Basten.
MR BASTEN: Your Honours, I wanted to focus, if I might, on the operation of section 5 and, in particular, consider the relationship between sections 5(1) and (2), which on my understanding are critical provisions in answering some of the questions that your Honours were raising this morning. In taking that approach, may I note in answer to your Honour Justice Kirby ‑ ‑ ‑
GUMMOW J: What interest have you got left in this matter, Mr Basten?
MR BASTEN: Only in the proper construction of the statute. What we understand to have happened is that the statute ‑ ‑ ‑
GUMMOW J: No, in the light of what Mr Gageler is ‑ ‑ ‑
MR BASTEN: Precisely. We have no concern in the matter in the sense that Hardiman would apply to us.
GUMMOW J: Yes, exactly.
MR BASTEN: We have nothing left to do with it. We only appear for the purpose of dealing with the statutory construction issue, if your Honour pleases, not as a hearing body.
KIRBY J: It is a slightly awkward situation in that we are hearing an appeal from the Federal Court which relates to a determination by a hearing commissioner of the Commission.
MR BASTEN: Yes, that is so.
KIRBY J: You limit your submissions to the issues of general construction of the Act?
MR BASTEN: We do, indeed, and for the reason which I was about to note which is really that we apprehend that there is indeed a statutory lacuna and that what has happened in section 22 and what has happened in the Federal Court is that in our view there has been a distortion of the definitional provisions to try and overcome the lacuna which has consequences for the operation and application of the Act more generally, which is a matter of concern to the Commission.
GUMMOW J: Of concern to the Commission in what sense? What does it have to ‑ ‑ ‑
MR BASTEN: Because we still administer the Act on a day‑to‑day basis.
GUMMOW J: Yes.
MR BASTEN: Not in this case.
HAYNE J: It is not immediately evident to me that gives you sufficient interest, but that is simply my, perhaps, idiosyncratic view, Mr Basten.
MR BASTEN: I have put in some written submissions and I merely wanted to address one or two aspects of the submissions, if the Court is willing to hear from me on that limited basis.
GLEESON CJ: Yes.
MR BASTEN: In answer to your Honour Justice Kirby, at paragraph 5.11 of our submissions we rely on two authorities, including the Canadian Supreme Court authority in Brant County Board of Education v Eaton, as indicating the manner in which disability discrimination differs from what might be considered the norm.
GUMMOW J: You seem to be hijacking Mr Gageler’s case. He does not want to rely on this.
MR BASTEN: No, he does not want to rely on it specifically, your Honour, in terms of what the case was about, but I do not think I am hijacking it in dealing with it as a background statement of principle, your Honour.
GUMMOW J: Yes, we have had a lot of them this morning.
MR BASTEN: Well, I am coming much more closely, if I may, to the statutory construction point.
HAYNE J: Mere middle ground, are we?
MR BASTEN: Well, we are going to be in the foreground in just a moment, if your Honours will bear with me. I was merely going to pick up the point that Justice McHugh raised, that one should deal with these matters by way of a distinction between relevant and irrelevant considerations in the terms which his Honour and Justice Gaudron have adopted in a number of cases. I might say that it was put to the New South Wales’ Parliament in Report No 92 of the New South Wales Law Reform Commission that they should amend the State Act to adopt precisely that approach. It is still before the government and has been for some years. It was a matter which I have heard your Honour say before.
The difficulty in relation to disability discrimination though is that it does require, not that one ignore disability as irrelevant, but that one take a positive step in providing accommodation or services which may allow the person with the disability to function in whatever the relevant area is within what has sometimes been described as the range of normality. That is, as we would apprehend it, the effect and operation of section 5(2) and, with respect, we adopt the submissions of the Commonwealth, in particular at paragraph 24 of the Attorney’s submissions, as to how section 5(2) operates.
Regardless of whether one treats disability as extending to the conduct or disturbed behaviour, section 5(2) requires that the educational authority take such steps by way of accommodating the difficulties caused by the underlying incapacity to control behaviour, which, as the Commonwealth says, is undoubtedly a relevant disability on any view of it, and then identify whether, those steps having been taken, the child has been treated less favourably. The effect of section 5(2) is to say that where that happens the circumstances between the disabled child and the comparator are to be treated as the same or not materially different.
The effect of undertaking that exercise is that if you cannot accommodate the disability, the incapacity to control behaviour, for example, then 5(2) does not operate, so that one will have a material difference of treatment, as we would understand it, which will not give rise to unlawful discrimination within the terms of the Act.
GLEESON CJ: How does this work in relation to a blind child who wants to attend an ordinary school?
MR BASTEN: Your Honour, it works a little bit in this case in relation to visual impairment, because Daniel Hoggan had a visual impairment which required that he have material put before him in larger print than in most cases. The question for the educational authority is whether they can provide material to the child in the classroom in a form which allows him to perform within the normal range within the classroom or whether that is not possible. If it is possible, then that is what might be described as reasonable accommodation, which there is an implied obligation to provide in section 5(2). So that they should not refuse to allow that boy into the classroom in those circumstances.
KIRBY J: Do you agree that that question only arises at the threshold before you get into the classroom and not after?
MR BASTEN: In terms of the operation of section 22(2), that is so. That is the decision which is made at that stage.
KIRBY J: It does seem an odd arrangement – I do not want to take you off the line of your submission –but it is a once-and-for-all decision.
MR BASTEN: Your Honour, in paragraph 5.17 of our submissions we suggest there are three circumstances in which that problem may arise, two of which are patently absurd; the result is either bad or absurd. The question is really whether the statutory construction should be, we would say, contorted, to avoid that result, or whether there is an alternative, a way of getting around it. One of the things I have said in the written submissions is that these provisions operate differentially in a wide range of circumstances, so that there are failsafe mechanisms within the Act which Parliament no doubt designed for this purpose. If one goes to the equivalent legislation in England or the United States federally, one finds that it is really structural legislation which allows for administrative regulation to fill in the circumstances to make sure that these difficulties do not arise.
KIRBY J: We get similar submissions from the Trade Practices Commission asking to enhance their bureaucratic power. That is effectively what you are saying, that the solution to this is: “Leave it all to us. We’re from the government, we’re here to help you”.
MR BASTEN: No, not at all, your Honour. The solution to 22 may well be that the Parliament should amend it. If there is a problem with the misconceived variation between the operation of subsection (4), it is a matter for the Parliament, we would say, but there is in section 31 precisely that mechanism to allow for administrative standards to be made which would override the operation of the prohibitions, and the Attorney-General can do that any day he likes to. If one looks at the material which is in the public arena, proposals have been made which would cope with this case. They have not actually been put through the formal process yet. Section 32, I think it is, makes it:
unlawful for a person to contravene a disability standard.
But 34 says that:
If a person acts in accordance with a disability standard this Part does not apply to the person’s act.
Which is to replace, in effect, the whole of the prohibitions in Part 2 with any appropriate standard that is formulated.
McHUGH J: Well, it is a large proposition that the Minister, acting under section 31, can pass standards which conflict with the requirements of the Act.
HAYNE J: It seems to be in the nature of a dispensing power, which I thought we had rather dealt with some centuries ago.
MR BASTEN: The Parliament can deal with that, your Honour. I mean, section 34 has effect in its terms.
KIRBY J: Is that not contrary to the old Bill of Rights? You are giving the Executive Government the power, in effect, to suspend the statute of the Parliament?
MR BASTEN: I do not want to comment on how it operates in those terms, your Honour. One would need to limit the operation of any standards so that they were within the scope of the legislation, of course, but subject to that one would think that there is power there to vary aspects of Part 2 so they do not have the operation they might otherwise have. If Parliament cannot do that, then that is another question, but all I am seeking to say is that the Parliament appears to have anticipated that there might be problems and your Honours were taken to section 55 and the exemption power before.
McHUGH J: But there are problems also about whether the Act would remain valid.
MR BASTEN: Yes, there might well be, depending on what was done.
McHUGH J: Yes.
MR BASTEN: On one view, the draft standards that have been – I mean, one would have to look at that in terms of the Act providing that you had to comply with the standards, so there is still a statutory obligation to comply.
McHUGH J: Yes, but a question would be whether or not you are still giving effect to the Convention by watering it down.
MR BASTEN: I appreciate that, your Honour, yes.
GUMMOW J: On its face you would not need to, would you? Is 31 controlled by the other general sections basing constitutional power for this Act in section 12?
MR BASTEN: I would have thought yes, but that merely imposes a limit on 31.
GUMMOW J: Yes. Is 31 ‑ ‑ ‑
MR BASTEN: On one view, the Attorney could introduce tougher standards rather than standards which water it down.
GUMMOW J: Yes.
MR BASTEN: That would be a matter for the standards. My point is rather more that it is recognised that these provisions may require adjustment in particular circumstances.Your Honours, could I make three points in relation to the manner in which we depart from the submissions made by the Commonwealth in relation to the operation of section 5(2) of the Act. In paragraph 24 of the Commonwealth’s submissions it refers - although I think my learned friends have removed this passage - at about line 10 to “mildly disruptive behaviour”. Then, at paragraph 42 the Attorney comes back to the question of behaviour which is so disruptive that it gives rise to a concern for health and safety. He then says that this gives rise to a different position. He says:
Nor is s 5(2) apt to cover such cases, at least where the risk of injury or harm to others cannot reasonably be addressed.
My concern with that proposition is that it involves a factual assumption, namely, that more serious harm gives rise to a greater difficulty of accommodation. It may or it may not.
KIRBY J: What is the textual foundation suggested for that gloss or that qualification?
MR BASTEN: None is suggested. As I understand it though, the argument is that it goes beyond the concept of “reasonable accommodation” contained in section 5(2).
KIRBY J: If the child is already in the school, that question does not arise.
MR BASTEN: It does in this way, your Honour, because as we would understand it the limit – may I just go through this step by step because I do not accept that section 5(2) incorporates a standard of reasonableness. It talks about accommodation or services being provided.
When reasonableness becomes relevant, it is found in the concept of undue hardship which is identified in section 11 and adopted in most of the operative provisions, and we have indicated them in footnotes to our submissions. There should not be implied some inconsistent restraint of reasonableness unless it is consistent with and therefore unnecessary with the operation of the unjustifiable hardship defence.
The second point is that there is an implicit limitation in section 5(2) but it may be formulated in a different way. The concept of accommodation as I have expressed it is accommodation to allow the child or the person in whatever the circumstances to operate within the normal range of behaviour which is required. It is like the concept of the inherent requirements of the work which are spelt out in relation to employment in section 14 and which were discussed by the court in X v McHugh. That concept is not spelt out in any of the other areas but obviously one does not talk about accommodating in relation to education and the situation in a primary school or secondary school unless what is provided to the child remains that which is generally available in that school.
In other words, somebody who is incapable, for whatever reason, of enjoying or benefiting from the education provided and requires a totally qualitatively different form of education cannot be accommodated and will therefore be outside the operation of section 5(2), the result is that for the purposes of section 5(1) defining unlawful discrimination the circumstances will not be properly considered as the same or not materially different. Therefore, the differential treatment will be differential treatment which is not unlawful.
KIRBY J: That seems to be getting close to the Full Court’s approach to the statutory construction question.
MR BASTEN: I think not, your Honour, because the Full Court did not address section 5(2) in these terms at all. That appears to have been because his Honour Justice Emmett thought that section 5(2) was irrelevant to the exercise. His Honour says that in express terms under a heading at page 180 to 181. At 181 in the appeal book at paragraph 48 his Honour appears to have treated accommodation or services as being used in section 5(2) in the same sense in which those words unfortunately appear in the definition which deals with areas of operation of the Act.
For the reasons we have set out in the written submissions we would respectfully say that a different and contrary intention appears here. They have a particular meaning and operation and it is not correct to suggest that they are irrelevant concepts for this purpose. He says that the Commissioner did not treat them as relevant but, with respect, that is not correct. The Commissioner discusses these concepts, including the statutory implication of a positive obligation to accommodate, from page 123 line 45 through to page 132 line 55. Your Honours will get the flavour of it from the last quotation at line 55 which the Commissioner adopts. That is at page 132.
It is clear he did understand that the concept was relevant, and his discussion of what needed to be done for this boy was in terms of positive obligations on the educational authority to seek to accommodate his incapacity to control his behaviour, absent which steps their less favourable treatment was unlawful. That was the conceptual approach that the Commissioner adopted in reaching his conclusion.
There was one other matter that arises from the Commonwealth’s approach which we, with respect, do not adopt. The Commonwealth suggests in paragraph 42 of its submissions that when one comes to the state at which the seriousness of the conduct gives rise to a genuine and well-founded concern as to health and safety of others and the duty of care owed to them, then the ground changes from disability to concern for health and safety. With respect, that is wrong.
The concern for health and safety is there with mildly disruptive conduct, so is the ground of disability there with mildly disruptive conduct. Both grounds are present, whether the disruptive conduct is mild or serious. The assumption that is being made is that in one case, said to be the serious conduct although it may not be, no accommodation can diminish the risk so that the school can continue to operate within the normal range of what is acceptable in a school in this country. It is not a change in the characterisation of the basis of concern. It is a change in the operation of section 5(2). With respect, in my submission, what the Commonwealth does is inconsistent with its own analysis of section 10.
When it analyses section 10, it accepts that there may be different ways of characterising the reason for the conduct. I have suggested in the written submissions that this is not an area in which discussion about causation is of assistance. It is really the improper purpose ground known in administrative law of irrelevant consideration. Accordingly, it is sufficient that the irrelevant proscribed consideration is one of a number. If one approaches it on that basis, then it is correct to say that the disability remains a reason, an irrelevant consideration, in circumstances where it is the disability, namely the incapacity to control behaviour, which itself gives rise to the concern for health and safety and that, accordingly, that is the correct approach to dealing with the risk of harm to other children which must be taken into account and properly is taken into account. The question involved is whether or not accommodation can minimise that risk to standards which are acceptable within the school environment.
GUMMOW J: Where do you deal with the public law notion of improper purpose or irrelevant purpose?
MR BASTEN: Your Honour, it is only in one paragraph at 5.24 at the end of Part V. I can see that what I have sought to do in the earlier passages – I am sorry, 5.24 of my written submissions. Is that what your Honour was looking at?
GUMMOW J: Thank you. No, I was not, but I am now. 5.24.
KIRBY J: In your approach, how would one deal with, as it were, the defence that this was a case where the proposition was put up that the child should be admitted to the general high school; that was resisted at first but they decided to give it a go; that they gave it a go; that there were rare days which the teachers recorded with elation where everything seemed to be going fine; there were many days where things were far from fine; and there was violence to teachers – not of a high degree, but some - and that that really taught that the proper place for this boy in the educational system was in the special education system, with the disadvantage that he was not then mainstreamed, but with the practical realities balanced out in that way. Now, how in your paradigm is that sorted out?
MR BASTEN: It is sorted out at a factual level by inquiring as to whether or not the child can be accommodated within the normal range of behaviour acceptable in the mainstream school. What the Commissioner found, as I understand it, was that the school had acted prematurely – or, if not prematurely, at least inappropriately – by making a determination that it could not accommodate him without giving a proper opportunity to him in accordance with the recommendations which had been made by its own consultants. There is no doubt that things did not work out. The question was whether the implied obligation to attempt a reasonable level of accommodation had been undertaken, and the Commissioner appears to say that it had not. I think page 137 probably summarises the Commissioner’s approach in that regard.
McHUGH J: But it does seem a complete departure from the statute. It really seems to be an application of the sort of approach that Justice Gaudron and I referred to in Castlemaine, but the statute just does not seem to me to justify this approach.
MR BASTEN: The approach that I am putting on 5(2), your Honour?
McHUGH J: Well, no, the approach on 137, the general approach that there was more that could have been done. That is not really the test under section 5, is it? You are either in or you are out.
MR BASTEN: Yes. I was trying to summarise what I thought – I may be wrong about how the Commissioner undertook the exercise, and your Honours will hear different submissions about that. Perhaps I should put it in this way. If the Commissioner did undertake the exercise in the way that I have described it, then he could legitimately – it would have been open to him on the facts to conclude – not these facts, I do not mean, but in general – that there had not been a reasonable attempt to accommodate an incapacity to control behaviour.
HAYNE J: And that you root in the statute only in 5(2)?
MR BASTEN: Well, what I have said ‑ ‑ ‑
HAYNE J: You have spoken of an implied obligation to accommodate.
GUMMOW J: How do you say 5(2) works? I do not follow at the moment.
MR BASTEN: Can I answer his Honour Justice Hayne’s question and then come to your Honour?
GUMMOW J: I think it is the same question.
HAYNE J: Well, it is exactly the same question, Mr Basten.
MR BASTEN: No, you were asking how I put it.
HAYNE J: Yes.
MR BASTEN: I was merely going to say that in the written submissions I try and spell out the structure of the Act as a whole, including the operative provisions, which I have not been referring to, because I think one needs to do that. On that approach, although I have spent some time discussing the definition of “disability”, it becomes perhaps the least important of the definitional provisions. It is really only important, I think, as the Chief Justice notes, because of the breadth of the definitions, but if one then comes to how section 5 operates, one starts, with respect, with a difficulty because, as Mr Gageler noted, it adopts in section 5 the terminology from those Acts like the Sex Discrimination Act which assume that you have an irrelevant consideration which does not permit less favourable treatment. The ground of sex does not permit, generally speaking, any form of less favourable treatment.
That, I have sought to say in the written submissions in a little more detail, is not a model which operates properly in relation to disability because disability is a relevant consideration. The drafter has attempted to deal with that by adding a provision which is not in the Sex Discrimination Act, namely 5(2), which purports to say that the treatment ‑ ‑ ‑
GUMMOW J: Wait a moment, it purports to explain something about the phrase “are not materially different” in 5(1), does it not?
MR BASTEN: That is right, and that is perhaps a curious way to do it, but one has to give some meaning to what it is seeking to do, and it is clear that it is trying to provide – it says, in the second part, after saying “circumstances . . . are not materially different”, “because of the fact that ‑ ‑ ‑
GUMMOW J: But see, “are not” is looking at some present situation, is it not?
MR BASTEN: Yes, it is.
GUMMOW J: Present circumstances. I assume the present circumstance was different accommodation.
MR BASTEN: Yes.
GUMMOW J: There might be trouble in working that within 5(1), might it, in terms of comparators?
MR BASTEN: There is.
GUMMOW J: Is that not all it is doing?
MR BASTEN: Yes.
GUMMOW J: In other words, it is saving 5(1) from what otherwise might be thought to be a contraction, the contraction being brought about by the presently existing circumstance of different accommodation.
MR BASTEN: Yes, but there is no other place in which the need to consider different accommodation is dealt with in the Act, and yet all the operative provisions speak about a defence of undue hardship, which I have suggested in the written submissions assume the existence of an obligation to accommodate up to a certain point, and the point is then defined by the defence. That is how the Act appears to work. Your Honours, I am conscious of the time. Could I ‑ ‑ ‑
KIRBY J: Unless you play around with the words “on the ground of” and say this is a very familiar territory for courts. We have to draw lines and decide causation questions all the time and that is what we are going to do here. We are going to categorise this. This is on the ground of the violence or disruption of the classroom and the rights of other children. It is not on the ground of his disability.
MR BASTEN: The problem with that approach though, your Honour, is that is must be applied generally throughout the Act. Section 5 has general operation. It applies to the child who has a visual impairment which can readily be accommodated within the classroom. It is assumed, I think, by the all the parties, including the State – and I was just going to refer to their submissions in a moment – that if one can simply provide available books with large print, then one would not be entitled to exclude the child from the mainstream classroom despite the fact that he cannot cope properly without that assistance.
One then looks for what it is in the Act which imposes that requirement. It is a combination – I am still in section 22 unfortunately – of the operative provision, be it section 22 or any of the sections around it, with section 5, with section 11, and perhaps section 10, which talks about the reason not being one which involves the proscribed ground.
HAYNE J: It may perhaps identify the great danger in focusing on 5 or 6 to the exclusion of 22, for 22 identifies what is the relevant conduct that is proscribed.
MR BASTEN: Precisely. I accept that, your Honour. I did not want to deal with the whole of the argument in the limited time, but there are two reasons not to focus on 22 for my present purposes. One is because section 22 is different from every other operative provision in that it limits in a way which is not explicable the defence. For example, if one goes to 24, one sees in subsection (2) the unjustifiable hardship defence in relation to the provision of services. Education, of course, would generally be considered a service, but education is being dealt with differently here.
What I am seeking to say is that when one looks at sections 5 and 6 and 11, one needs to adopt a scheme of construction which will allow them to have an operation in relation to other provisions. One then goes back to 22 and sees how it operates there, and except in relation to this case where a student has been accepted, it operates in the same way. The answer then in relation to the situation where the student has been accepted is not to seek to redefine the definitional provisions but to accept that there is a lacuna in the statutory scheme of defence.
It is not a big lacuna as I suggested because 5(2) will not operate so as to change the inherent nature of the service or the form of education being provided, but it may not be as significant a defence as the undue hardship defence would be if one were able to give effect to subsection (4) in relation to subsection (2).
Your Honours, may I just say two words about how we would understand these submissions to operate in relation to the way the State approaches the matter. The State does not consider the role of section 5(2) by contrast to the Commonwealth. It says at 6.27 of its submissions that the definition of disability is determinative of the issue in this case. Subject to the qualification I have mentioned in relation to the Commonwealth, I would respectfully submit that the definition of disability is not necessarily determinative. In other words, even if the behaviour does not, as Mr Gageler has argued and as we say in the written submissions, form part of the disability, nevertheless, the analysis of the Commonwealth at paragraph 24 demonstrates that it may still have the effect of rendering the conduct unlawful if it has not been reasonably accommodated and if it could be.
Secondly, the State adopts the argument which I think we have probably – I do not need to rearticulate - at 6.12 that the sole ground upon which the school acted was safety and welfare. That is inconsistent with the submission I put in relation to how I would understand the Commonwealth to argue the point, subject to a particular qualification in paragraph 42 of its written submissions. Your Honours, otherwise, could I simply rely on the written submissions with which no party has expressly disagreed. There may be a number of possible reasons for that but I adopt the optimistic one.
GLEESON CJ: Thank you, Mr Basten. Yes, Mr Solicitor for New South Wales.
MR SEXTON: If the Court pleases. Your Honours, I propose to deal first with the question of whether the first respondent’s conduct can be described as being on the ground of the disability in this case; secondly, to look at the two grounds of appeal, although it may well be that the two grounds of appeal and that first question are linked and that in fact they cannot be considered completely separately and then, following that, to look at a number of short matters that have arisen in the course of argument and relate to those earlier questions but do not really form part of our primary submissions, either in written or oral form.
Your Honours, I propose to start by going to the decision of the Commissioner in the appeal book and to take your Honours to some parts of that. I do not do so to point to what might be thought unattractive conduct on the part of the appellant but to make two arguments in relation to these proceedings. The first is that the true decision of the Commissioner was that the disability was not a ground for the relevant conduct of the first respondent and, largely, that conduct was a series of suspensions and finally exclusion from the school. There is some other conduct that is referred to in the decision but I will not deal with that for the moment. So that is the first proposition.
The second proposition, which is really in the alternative to that, is that section 5(1) was misapplied by the Commissioner when he considered what was the ground for the conduct in question, the decisions of the principal. So that if his decision be construed as a finding that the first respondent’s conduct was carried out on the ground of the disability that that decision could not stand, then our primary submission is that when analysed correctly his decision amounts to a finding that the disability was not a ground, not any ground, for the conduct of the first respondent.
Now, in that light, your Honours, can I go to the Commissioner’s decision in the appeal book. I will try and go through this relatively quickly. At page 37 it is recorded that the appellant commenced at the school on 8 April 1997. On the following page, 38, just before line 25, there is a suspension recorded on 7 May 1997 for kicking a fellow student and for abusing his teacher’s aide. Further down the page at 45, on 9 May there is a report referring to the appellant. On page 42 just before line 20, 19 June 1997, abuse of the aide, kicking the aide. On 23 June 1997, a little further down, kicking and punching and biting the aide. 24 June 1997, swearing and trying to kick the aide.
Over on page 43, line 15, a reference to some kicking and punching, and on 30 July 1997 there was a suspension for two days. Page 44, 13 August 1997, a threat to another student. On 21 August 1997 the appellant ran out onto the street, and there is a record of that incident. On page 46, 2 September 1997, a suspension for 13 days. 6 September, running out onto the road and narrowly missed by a car. Page 47 about line 20, 17 September, swearing, kicking over a garbage bin. 16 September, which is an earlier date but must be a later entry, pushed a student into a wall, pulled the chair out from another student. 18 September 1997 there was a suspension for 12 days after punching Ms Thompson in the back.
KIRBY J: What are you trying to get out of this, Mr Solicitor, because we do know the ‑ ‑ ‑
MR SEXTON: I appreciate that. I say that, your Honour - I am leading up to what the Commissioner then says and I just need to put it in this context. I do not want to labour it, your Honour, but it is important, no one else has been really to the decision and to, in a sense, the record of what occurred.
GLEESON CJ: Who is the “Karen” referred to on page 48, line 40?
MR SEXTON: A teacher’s aide, I am told, your Honour.
GLEESON CJ: Thank you.
MR SEXTON: On page 48 there is a record of the then principal writing to the appellant’s guardians advising of the suspension and setting out the amount of time that he had spent.
I will just mention the bottom of page 49 because it is relevant to the time periods. On 16 October 1997 Mr Scahill, who is I think from the Department of Community Services, telephoned the principal to say that Daniel would not be returning to school until the situation was resolved. Then, on page 52 at line 10, on 3 December 1997, the principal wrote to Mr Scahill advising of his decision to exclude the appellant from the school, and in that letter he said that:
the situation that caused his last suspension for very violent behaviour has not been resolved . . . I am also responsible for over 1000 other students and 80 teaching or SASS staff. The health and safety of all these people are also of great concern.
GLEESON CJ: What page is this?
MR SEXTON: That was on page 52 lines 10 to 20‑odd, your Honour.
Can I then take your Honours to the substantive decision or at least to some of the aspects of it and to page 111 of the appeal book at line 15 where the Commissioner says:
I am satisfied that, based on the general Discipline and Welfare Policy for the School, and the policy prepared for Daniel, Mr Bartley’s decision to suspend Daniel on this occasion was as a result of Daniel’s behaviour being outside that accepted by either the School’s or his specific discipline and welfare policy.
That was the first suspension he is referring to.
As for the second suspension, he says at line 45 that the principal’s decision was consistent with the earlier one. The third suspension is referred to at the bottom of the page. At line 10 on page 112 he says:
I also accept Mr Bartley’s evidence that any other student would have been expelled at this stage for repeated unprovoked violence against staff and students.
There is a reference to the fourth and fifth suspensions, line 35:
I am satisfied that Mr Bartley’s decision related to Daniel’s behaviour and was in accordance with the policies.
Towards the bottom of the page:
The reason recorded for all of Daniel’s suspensions was violent or inappropriate behaviour.
KIRBY J: Can we take it that each of the suspensions was, save for the last, for a day or a couple of days and that after those days Daniel returned to the school?
MR SEXTON: Yes, your Honour.
KIRBY J: So that, for the greater part of 1997, from April when he went to the school – on 8 April, he was at the school ‑ ‑ ‑
MR SEXTON: The last suspension, I think, was for longer, for 13 days, and, of course, he did not return after that, your Honour.
KIRBY J: Well, there was some ‑ ‑ ‑
HAYNE J: It is conflating two, Mr Solicitor. That is conflating two suspensions. Fourth was for 13 days reduced to 8, fifth was for 12 days.
MR SEXTON: Thank you, your Honour.
KIRBY J: There was some evidence that when he began he was in the playground on his own but that, with time, the other children started to talk to him and involve him, and to that extent the strategy appeared to have some success.
MR SEXTON: There seemed to be some peaks and troughs. As your Honours will see from the chronology, there was a deterioration at some point.
GLEESON CJ: Am I right in thinking that insofar as Mr Bartley gave a formal reason for his decision for exclusion, it is the communication that appears on page 52 at line 15, which is a communication to the Department about their ward?
MR SEXTON: Yes, your Honour. It seems that that was a channel of communication at that time, which is why it was directed to the Department rather than to the guardians, who presumably received it.
GLEESON CJ: His formal statement is on line 20 page 52: “I am moving an exclusion”.
MR SEXTON: Yes, your Honour.
GLEESON CJ: What does that mean, “moving an exclusion”?
MR SEXTON: It may be that he had to put that as a recommendation to a higher authority in the Education Department. I cannot answer that. Ms Ronalds informs me that he did have that authority, your Honour. It is perhaps just an unusual English expression.
GLEESON CJ: What he appears to be saying in his communication to the Department is, “I realise I’m responsible for Daniel’s education. I’m also responsible for a lot of other people. Their health and safety is of great concern to me. I am going to exclude him”.
CALLINAN J: Mr Solicitor, was not one of the major problems – and I do not know whether the Commissioner ever dealt with it – that his suspension had no beneficial effect because he regarded his exclusion from the school as something that was for his benefit or something that he enjoyed? It was totally ineffective as either a punitive or a deterrent measure, or indeed in any way at all. Does the Commissioner deal with that? I know it is recited but I do not know whether it is dealt with.
MR SEXTON: I do not think, your Honour, that he dealt with it except to note that fact. I am not sure that it is meant to be a punishment ‑ ‑ ‑
CALLINAN J: No, well, what is the purpose of it? That is what I would like to know. If it is not a punishment, what other purpose can it have? Or, if not a punishment, a deterrent measure. What other purpose can it have?
MR SEXTON: I am not sure of the answer, your Honour, but it might be thought that it gives the person in question some opportunity to consider their position separate from the institution. That may be one of the rationales.
CALLINAN J: We know that it did not have that result. It had the opposite result.
MR SEXTON: Well, it seems unlikely in this case that it would have had that result, but this may be part of the problem, of course, of trying to apply here a general policy in the situation where that policy perhaps did not have a real application.
CALLINAN J: Well, if you were going to make a comparison, would you not have to make a comparison between the effect of that sort of measure upon Daniel and that sort of measure upon the rest of the school community? There does not seem to have been any attempt to consider that.
MR SEXTON: Your Honour, I will come to the ‑ ‑ ‑
CALLINAN J: It is a further basis, I would have thought, that has to be considered.
MR SEXTON: It goes ultimately, we would say, and I hope everything that I am taking your Honours to at the moment goes ultimately to that question of what the true ground was for the action by the principal.
CALLINAN J: And the investment of time, resources and money seems to have been enormous.
KIRBY J: Human rights can sometimes be costly.
MR SEXTON: That is so, your Honour.
KIRBY J: And if the law provides, then presumably does the money not have to be found?
CALLINAN J: You could spend every penny on it, no matter what consequence it has to perhaps other people with other disabilities or disadvantages.
MR SEXTON: The question is whether the statute requires, in this particular case, not only the expenditure of the resources which was made – there was no problem about that, about the continuation of that in the light of what had happened at the school.
GLEESON CJ: Well, it would appear from what appears in the first paragraph on page 52 that Mr Bartley was in the happy situation of acting in circumstances of what might be called transparency.
MR SEXTON: We would say so, your Honour, yes.
KIRBY J: This is all part of a worldwide movement, as has been pointed out, to try to mainstream people unless that does not work. I mean, in the old days, when I was at school, children with a disability just went to Forest Lodge school in Sydney and they were lumped in altogether, mental disabilities, physical disabilities, anybody who was a bit different, they all got put into the special school. Now, the whole purpose of this and of the worldwide movement, as Mr Gageler put it, is to treat everybody as a human being and as far as possible to respect their dignity and give them a fair chance. Sometimes it will not work out.
MR SEXTON: Section 3 of the Act says – in the objects it talks about doing this as far as possible, your Honour, and that is the problem in this case. It could not be said, in our submission, that the Department did not make a very considerable effort here. The question is whether the legislation requires more.
Your Honours, can I go back to the decision. I have to take your Honours to some passages briefly from the Commissioner’s reasons to make out the proposition that I wish to. On page 115 at lines 15 to 20 the Commissioner says:
As already indicated, I am satisfied that Mr Bartley imposed the suspensions in compliance with the policies and as a result of Daniel’s behaviour. Whilst I understand Mr Bartley’s approach on this point (zero tolerance to what he described as violence) –
I will not read the rest. Now, page 118 of the appeal book is significant, your Honours, because in some ways it is the heart of the Commissioner’s approach. He says at line 21:
Mr Bartley asserted, in correspondence –
the Chief Justice has just referred to that –
that his reason for the exclusion was the welfare and safety of Daniel, other students and staff.
Then, at line 34 the Commissioner says:
I find, based on the correspondence and evidence of Mr Bartley, that the reason for Daniel’s exclusion was more broadly based than just the last suspension.
That seems to perhaps accept that the suspension, perhaps the suspensions in general, were done for the reasons that the principal has set out. I will come back to that. The next sentence said:
It related to Daniel’s behaviour leading to the five suspensions, and throughout the period of his enrolment at SGHS.
I have to take this sentence by sentence, your Honours. That sentence does not seem to take the matter any further. It is a reference to the behaviour leading to the five suspensions. The next sentence:
It also related to Mr Bartley’s judgment that Daniel could not operate in a regular high school environment as a result of his disability.
That seems to, in a sense, partly combine a finding of fact with a finding as to the ultimate question here. In our submission, that is really only another way of saying that the suspensions and the exclusion were based upon the conduct of the appellant and its impact on the welfare and safety of students, staff and himself at the school. To say that he could not operate in a regular high school environment is really only, we would say in the context of this case, another way of making that finding.
I say that in a situation where there does not seem to have been any statement on the record by the principal to that effect. This appears to be an inference that is drawn by the Commissioner. He is entitled, of course, to make findings of fact but only on the basis of evidence. But at any rate, in our submission, it is a sentence that does not really add to the proposition that the suspensions and the exclusion were based upon the considerations that the principal set out in his letter to the Department of Community Services.
GLEESON CJ: I understood Mr Basten to suggest that the reasoning of the Commissioner proceeded upon the basis ultimately that the Commissioner thought there was more Mr Bartley could have done to attempt to accommodate Daniel. What is the legal relevance of that?
MR SEXTON: We say none, your Honour.
GLEESON CJ: Unless I am overlooking something, the Commissioner’s function was not to make judgment upon the reasonableness of Mr Bartley’s conduct, was it? He was to decide the lawfulness of it.
MR SEXTON: If I may say so, with respect, your Honour, the Commissioner’s decision is not easy to construe in parts, and that is particularly true of this paragraph. It is only by construing it, however, that it is possible to establish, in our submission, the basis for his decision and therefore answer the question of what the ground was for the principal’s action. But we would say that what your Honour has just referred to is an example of something that does not help answer that question. It is not a finding.
GUMMOW J: Now, there were some 27 witnesses, were there not?
MR SEXTON: Yes.
GUMMOW J: Was Mr Bartley one of them?
MR SEXTON: Yes, your Honour.
GLEESON CJ: The Commissioner was not sitting as some kind of Court of Appeal from Mr Bartley’s decision to exclude the pupil, or asking himself, “What would I have done if I were in Mr Bartley’s position?” He was there to decide, was he not, whether Mr Bartley’s conduct complied with the Act or did not comply with the Act.
MR SEXTON: He seems again with respect, your Honour, to have confused in a sense the measures that might have been taken by the school despite the fact - or the further measures that might have been taken, because many measures were taken, with, as your Honour says, the grounds for Mr Bartley’s decision. In other words, the two questions just simply do not interact.
GLEESON CJ: Well, they could in some cases. The fact that a person could have done a lot more to solve the problem might lead you to disbelieve his assertion as to what his ground of action was.
MR SEXTON: Yes, your Honour.
GLEESON CJ: Subject to some issue of credibility like that the Commissioner’s judgment upon the reasonableness of how hard Mr Bartley tried to solve the problem is not relevant to the Act, is it?
MR SEXTON: That is our submission, your Honour. On page 134 at line 20 the Commissioner says in relation to the exclusion:
Whilst I am sure that Mr Bartley took this decision for what he saw as Daniel’s best interests ‑
In other words he does not seem to doubt the genuineness of Mr Bartley in terms of what he thought he was doing. I realise that that does not necessarily answer the ultimate question in this case, but it would seem to support the proposition that it was not relevant here to consider whether further measures might have been taken, because it was in effect a person who had taken no measures and therefore was not being candid.
GLEESON CJ: Well, rightly or wrongly, the Commissioner seems to have adopted the approach that was, as I understood it, taken by Mr Gageler, that is to say the Commissioner would describe the belief of Mr Bartley, referred to in the first sentence of that paragraph, as his motive for acting which was simply legally irrelevant. Your contention is that that was his ground for acting, which was legally critical.
MR SEXTON: A least in this case, your Honour, there is no evidence that there was any other ground for him acting as he did and that, indeed, all of the available material in the Commissioner’s decision would tend to support the proposition that that was the ground on which he acted.
GUMMOW J: Yes. That would appear, for example, from page 120 line 21.
MR SEXTON: Yes, your Honour. Your Honours, I got only to the middle of that paragraph on page 118. I am up to line 40. The next sentence begins:
Mr Bartley’s underlying reasoning – unlike that for his decision on the suspensions –
That again seems to assume that the ground for the suspensions was the one put forward by Mr Bartley, but in the case of the exclusion, according to the Commissioner, there was an underlying reasoning. Again, we would say there does not seem to be any basis for that finding. He says the:
underlying reasoning . . . included issues broader than just behavioural. Certainly Daniel’s behaviour (and its impact on himself and other students and staff) was a factor, but it was not the only factor. The decision also related to –
he does not say it “was based on” but “related to” –
Mr Bartley’s perceptions of Daniel’s success socially and educationally.
There seems to be, again, some degree of speculation about what was in Mr Bartley’s mind but, in any event, it may of course only, we would say, be another way of saying that in the circumstances that had occurred at the school that of course there were going to be social and educational problems, but there is no evidence that those claims of what might be described as issues at a more straightforward level of fitting in with other students caused the problem for the principal.
He seems to make it clear, and the progression of events seems to make it clear, that the problem was the violent conduct towards students and staff members, particularly – and there were at least two incidents where there was some concern about the safety of the appellant himself.
KIRBY J: I am just a little concerned that you are addressing us on a footing that we are here judging the reasonableness of what Mr Bartley or the Department did whereas, in fact, it is all of a piece, the misbehaviour or the conduct of the boy is part of his disability and once he has got into the school you have legal obligations in respect of him and it is no good complaining that that is hard or that his behaviour is disruptive, that is his disability, and unless you can fit within one of the exceptions or bases of relief or administrative relief, then you just have to conform to the Act.
MR SEXTON: I will come to some of what are, we would say, under the legislation ‑ ‑ ‑
KIRBY J: Maybe there should be an exception for reasonableness.
MR SEXTON: No, those are not relevant or practical in this case, your Honour, and I will come to those. It is not a question of reasonableness - we agree with your Honour in that sense – but it is a question of the ground. Of course, to some extent it is a question of characterisation. If one includes the behaviour in the disability and it is possible to characterise – on one view it is possible to characterise the decision as on the ground of the disability, we say that is a mischaracterisation in this case, that the real ground was the safety and welfare of the students and the staff and, to some extent, the appellant himself and that that is an obvious ground here and that that is how it would be realistically described.
KIRBY J: If the misbehaviour is part of the disability, it is pretty hard to get by paragraph (g) and then to say that is all just part and parcel of the disability, it was on the ground of a disability.
MR SEXTON: Your Honour, that is an argument about section 4 and I will come to that, but this is an argument in a sense about section 5 and section 22 and the question of what is the ground.
McHUGH J: I am not sure that you can deal with section 5 and section 22 unless you define with precision what is the disability. Here it is arguable that the disability is the loss of the capacity to adapt his behaviour and that is a loss of a mental function, if you like, maybe it is a disorder, but it seems unreal in a case like this to say “We’re protecting the pupils or the staff and we’re not doing it because he is unable to adapt his behaviour to what is required”. He cannot help it.
MR SEXTON: Your Honour, that is why these provisions are in some ways linked, but just putting the definitional question to one side for the moment and assuming that the behaviour is part of the disability, it does not follow from that, in our submission, that it is not possible to exclude someone from the school on a ground that is separate from the disability but is related to aspects of their conduct and the consequences of that conduct. Assume serious criminal conduct, for example. Assume the notion of a serial sexual offender whose propensity to offend comes from some kind of mental condition. It cannot be right, we would say, that that person cannot be excluded from the school without contravening this legislation.
McHUGH J: Maybe that is the result of the legislation. Parliament enacts legislation with these rather abstract terms in rigid sections. They have to be applied.
KIRBY J: But there is always a snake and a ladder. You can get out by simply applying for an administrative exemption.
MR SEXTON: I was going to deal with it later but can I just say about section 55 that it is a section designed for prospective conduct that you are claiming. I think, for example, the Melbourne trams have an exemption. It is to deal with that kind of situation. It is not to deal with where it would be necessary to make an application in relation to individual students in relation to conduct that has not occurred yet. Section 55 provides no solution, we would say, for this kind of situation and as, your Honours are aware, the hardship provision does not relate to this situation.
KIRBY J: That seems to be a slip of the legislature. That seems to be a gap in the legislation. It is there in 24 but it is not 22, so it is a slip. It should be there but it is not. We cannot fix that up unless we move to distort the legislation.
MR SEXTON: It is not distorting it, we would say, your Honour, to give it a construction that would avoid such an extraordinary result and there is not any problem about the construction because of the use of the words “ground” and “because of”.
KIRBY J: It sounds like judicial activism to me.
MR SEXTON: Not at all, your Honour. I would never propose such a thing.
HAYNE J: Can I take you back to this question of definition of “disability”. If once the disability is identified as either being or including disturbed behaviour that takes the form of violent conduct towards staff or other pupils, where then does the argument go? How does your argument about “on the ground of” operate if that is the premise for its operation?
MR SEXTON: Your Honour, I will have a separate submission about that because, as I say, it is not, in our submission, possible to divorce the three concepts here, including the comparator concept from the other two, but I can only say again that it does not follow, in our submission, that assuming the premise that your Honour puts forward, that there can be no other ground for excluding a person from the school in this situation or in an even more extreme situation than the disability. It can certainly characterise in this case, we would say, as for the health and welfare of staff and students, and that is why - I will come to cases like Banovic, but it is a reference to the true basis for the decision. It may be difficult in some situations to establish the true basis. It is a factual inquiry, as Justice Clarke says in Waterhouse v Bell.
HAYNE J: Notions of true cause, et cetera, simply are uttering voodoo expressions to disguise the reasoning that is being employed, Mr Solicitor. True ground simply hides rather than reveals.
MR SEXTON: I appreciate, your Honour, that it is only another way of stating the question, but what I am suggesting is that there can be a number of answers to the question and one is not confined to the answer that it must have been the disability.
GLEESON CJ: Mr Solicitor, it was put against you, and on a couple of occasions you appear to have accepted, that subsection (4) would have provided the answer in the present case if the problem had arisen at the point of admission rather than later exclusion.
MR SEXTON: Section 22?
GLEESON CJ: Section 22(4). I would just like to test that proposition a little. Section 22(4) requires a combination of two circumstances for that exemption or excuse to apply. You have to have a situation where services or facilities that are not required by other students would be required by this student and the provision of those services would provide unjustifiable hardship. What does that have to do with the facts of the present case?
MR SEXTON: It does not have anything, your Honour.
GLEESON CJ: Whether it applied either at the point of exclusion or later?
MR SEXTON: I was not accepting it, your Honour; I was just saying that it does not apply at all in cases where the student has already been enrolled at the school, so one can disregard those cases.
GLEESON CJ: Well, it has been suggested that there is a sort of little gap here, a little slip on the part of the legislature, and that if they had been a little more careful they would have noticed that they provided a very sensible defence in a case like the present if the problem had arisen at the point of admission, but they failed to notice that they did not provide that defence in relation to the matter of exclusion. Just at the moment, I am having some difficulty understanding how the defence they provided in subsection (4) would have had anything to do with the circumstances of the present case if those circumstances had arisen prior to admission.
MR SEXTON: Your Honour, this is not a case about services or facilities in the same way that in relation to section 5(2) it is not a case about accommodation or services. None of that was the problem in this case. They just simply do not bear on it.
KIRBY J: Well, he did need a lot of extra services.
MR SEXTON: And they were all supplied.
KIRBY J: You felt he needed toilets. He disputed that, but you put a new toilet in. He needed a lot of nurse’s aides and expert attention and advice to the teachers. I mean it is not as though he did not need anything.
MR SEXTON: What I meant was, your Honour, that was not the problem.
GUMMOW J: That was supplied. You say that was done.
MR SEXTON: Yes, it was done.
GLEESON CJ: It was not suggested, was it, that what went wrong here was that the school failed to provide services or facilities that he required?
McHUGH J: I think it was in a sense, was it not? That may have been an irrelevancy given the terms of the statute but the Commissioner seemed to have been critical of the Department for not doing enough.
MR SEXTON: Your Honour, there are some other findings by the Commissioner that I do not propose to go to in detail. There could be some argument about whether enough was done. I think the case has really been about the question of the suspensions and finally the exclusion and what the ground was.
McHUGH J: Can I put to you one thing that is concerning me about your argument? This is a case under the AD(JR) Act and you have to find an error of law. Insofar as the Commissioner thought it was on the ground of disability, it seems to me to be a question of fact unless you can make good the conclusions of the Federal Court that the Commissioner confused the disability with its consequences. If you cannot make that good, does the ground get you anywhere?
MR SEXTON: It does for this reason, your Honour. One of the reasons for going through the decision - we seem to have stalled a little - is to make the argument that there is in a sense, or putting it in the alternative, that there is an error of law in the Commissioner’s findings in one of two ways; either that there is simply no basis in his findings on their face for saying that the ground was the disability and that in other words although he may say that, that all the surrounding material indicates that that could not be the case. So that is one way of looking at it. The other way, that in trying to apply section 5(1) he misapplied it - and I will come to that - that he applies a “but for” test, which we say is not the law. He refers to Justice Kirby in IW who, in the material quoted, does not support that proposition either. So that on either of those two bases we would say that there is an error of law in the Commissioner’s decision in relation to this question. There may be others.
Now, your Honours, can I go – quickly, I hope – to page 128. This is the passage I have just referred to in the answer to Justice McHugh. At line 20, the Commissioner says:
When determining whether less favourable treatment has occurred I must be satisfied that there is a connection or causal nexus between the treatment suffered by the aggrieved person and the disability of that person. Without the causal nexus the statutory requirement of “on the ground of” is not met.
So he sets that out. He then says a little further down:
The accepted test is the “but for” test –
we would say that is not right, if one looks at Banovic and Waters, for example –
as described by Kirby J in IW v City of Perth –
In the passage quoted towards the end, Justice Kirby said:
“It must be a real reason or ground. It is not enough to show that it was a trivial or insubstantial one. But once it is shown that the unlawful consideration truly played a causative part in the decision of the alleged discriminator that is sufficient to attract a remedy under the Act.”
That passage, in our submission, does not support the notion of the “but for” test.
GLEESON CJ: Well, if the accepted test is the “but for” test, you are gone, are you not? If you asked, but for the disability, would he have been excluded?
MR SEXTON: The problem about the “but for” test, as Lord Lowry says in James, is that it is a test without any content. It simply removes all aspects except a “B follows A” kind of approach. I have to accept what your Honour says, yes.
KIRBY J: Is there not some indication that that is the test by the amendment to the Act that provides that if it is one cause, that that is enough?
MR SEXTON: We would say, not at all, your Honour, because it is a question of – I appreciate what Justice Hayne has said about the notion of the “true basis”, but it is a question of finding what the ground is. It is possible in some situations that there may be more than one ground, but we would adopt what Justice Clarke said in Waterhouse v Bell that that is an unlikely situation, that normally, if one finds the real ground or the true ground, then what you have then is the real ground, and that that is probably the basis for the decision. We say, there is such a basis here and we point to it. There is, we would say, no evidence here or in the Commissioner’s decision that this is a section 10 case.
McHUGH J: But why not? If you said to Mr Bartley, “Why did you exclude Daniel?”, he may have said, “Because he is unable to adapt his behaviour to an appropriate standard”, or he may have said, “Because of those things and it causes harm to other students and to aides”, or he may have said, “Because he has been assaulting aides and other children”. You could characterise it in, perhaps, any of those three ways but this Commissioner went for the first way of characterising it. That being so, why is that not the end of the matter if the Commissioner is right about what constitutes the disability?
MR SEXTON: Your Honour, we say on his own reason that you cannot get to that conclusion. Of course, the one thing we do have is the stated reason by the principal and seemingly in the case of the suspensions that the Commissioner accepted that. Then in the case of the exclusion he suggested that there was some kind of underlying reason which he never precisely articulates or suggests what the basis for that finding was.
KIRBY J: You have remedial legislation, you have it giving effect to international developments, so you only have to show one of several causes, and you have one way of looking at the matter which seems to get some support from paragraphs (h) and (g), especially (g), that you take the behaviour with the disability, and you have the decision of the Commissioner who sat there listening to all this evidence for much longer than we do and he reached a view and you have to find an error of law that warrants disturbing it.
MR SEXTON: I will come to that, and after all your Honour has said we have a result that on the face of it seems a very unlikely one under the legislation.
KIRBY J: There are many things under this legislation that would have been unthinkable when you and I were at school. I mean, that just was not the way it was done then. They were separately streamed and put out of sight and you did not worry about them. But this is how the Parliament of the Commonwealth has said it shall be done.
MR SEXTON: Of course, your Honour, and accepting that the Act has made all those changes this result is, we would say, an extraordinary one. As to your Honour’s question about an error of law, I have said that there are two ways of looking at that in terms of the Commissioner’s decision. One is simply to look at the reasoning on the face of it and compare it to the conclusions. Another is to look at the test that was applied where he quotes that passage from your Honour’s own judgment. On page 133 at line 21 he says:
the motives or intentions of the respondent in doing any act are not relevant to the question of whether that act is discriminatory.
We would say that is not consistent with the authorities. Of course the motive or intention as expressed does not answer the question and it may be that a person is disguising the real basis for their actions but it goes not follow from that the motives or intentions are not relevant at all.
McHUGH J: You say it is an extraordinary case, but we are not concerned with the merits of the case, we are concerned with what the law is. But if you want to look at the merits in the case there are various findings of the Commissioner which suggest that the Department could have done more, they could have consulted more widely than they did. They could have been more flexible in the policy they adopted and what seems to be unexplained is why Mr Phillips did not pass on the Callan and Garrard report.
MR SEXTON: Your Honour, it is possible to have those kinds of arguments in this case, but that is not the question. The question is what was the ground and ‑ ‑ ‑
McHUGH J: I appreciate that, but when you talk about this being a hard case maybe it is not a hard case when you really get to the facts of the case. I mean, it is hard in the sense that you cannot have a situation where somebody is assaulting aides and assaulting other schoolchildren but, maybe with other remedial measures, that could have been avoided. So in that sense, maybe the merits are not all your way.
MR SEXTON: But, your Honour, it is possible to posit much harder cases. I gave the example of the sexual offender. They are results that we would say are not envisaged by the legislation. This is – can I say, your Honour – I mean, the answer to this, in one sense, is really that this is an indirect discrimination case, but because of the reasonability requirement that was not the way that it was chosen to be run. I mean, otherwise, it would appear to be an obvious case. It is only when one puts it into a direct discrimination situation in section 5 that all of these difficulties are encountered.
McHUGH J: But what about the policy of the legislation? The policy of the legislation is to try and bring people with disability into the mainstream. Why there is discrimination against people with disability is something that I have some difficulty in understanding and my understanding is that it has never really been identified.
KIRBY J: Difference. Anybody who is different.
McHUGH J: But this legislation is an attempt to educate the community, to bring what I will call “normal people” into contact with people with disability and once they meet them and get used to them then they accept them so why should we give this legislation a construction which would benefit disabled persons, even if in a particular case it might seem to be a bit hard?
MR SEXTON: Because, your Honour, that is the point of the requirement of the ground that ‑ ‑ ‑
GUMMOW J: One has to look at the objects in section 3 fairly carefully ‑ ‑ ‑
MR SEXTON: Yes.
GUMMOW J: Promotion is an object in paragraph (c) which is expressed in very wide terms as Justice McHugh has indicated, but (a) and (b) have significant limitations in them, the possibility and practicality.
MR SEXTON: Yes, I mentioned section 3 earlier, your Honour.
GUMMOW J: Yes, you did.
MR SEXTON: And that is quite so, but in one sense the other answer to Justice McHugh is the notion of the ground. If the ground is identified as the kind of intolerance, to use a broad term that your Honours Justice Kirby and Justice McHugh were talking about, then of course it will be an unlawful consideration and the Act will be contravened.
McHUGH J: That goes without saying, but it is a question of identifying what the disability is and then identifying what the ground is. As I put to you on several occasions, the Commission took its particular view as to what was the disability, and held that that disability was the ground of the exclusion. That is the issue. Is it right as a matter of law, or was it open to it?
MR SEXTON: Yes, I appreciate that, your Honour. Your Honour is quite right about the merits. That is the question, and that is what I directed these submissions to.
HAYNE J: Can I take you to a level of perhaps unhelpful abstraction in approaching the construction of the Act that it may illuminate. Disability concerns difference. The Act is concerned ultimately with difference, difference from something that is described as normality, though we know that normality is a range of features. Is the definition of “disability” in the Act concerned to direct attention to the cause or basis of difference, namely the loss of function, loss of part of body, et cetera, et cetera? Let us leave out (g) for the moment because “Does (g) stand apart?” is a key question in this case. Is the manifestation of consequences of difference something that is dealt with in the operation of particular proscriptions? If that is the right way to approach the construction of the Act, (g) would stand markedly apart from (a) to (f), or at least from (a) to (e), if the difference with which it is concerned is defined in terms of consequences, namely results in disturbed behaviour rather than being defined in basis or cause of difference, namely disorder, illness or disease.
Now, if that is an available, if it is the appropriate, method of approaching the construction, that then leads manifestation of difference to be dealt with by the very particular forms of proscription and excuses from proscription that the Act makes in the various subject matters with which it deals with.
MR SEXTON: Your Honour is saying that (g) is a separate approach from those proceeding paragraphs?
HAYNE J: That is a question that is now presented. Is (g) to be understood as defining disability, that is, the relevant difference, in terms of consequences, that is, the consequence of “disturbed behaviour”? If it is, once you recognise that there are some, but by no means all, forms of “disturbed behaviour” which are criminally sanctioned, you enter this field of tension which seems to underpin the submissions that you make, directed apparently to the merits, when you say, “This is all a terribly hard case”.
But you avoid them if it is right to say, as the Full Court appears to have done, well, disability is to be identified as cause or basis of difference, but then tips over into the particular proscriptions, the consequences that flow from particular manifestations of that. This child has difficulty with sight and therefore has difficulty in the classroom with all except large text work; this child has hearing impairment, therefore needs a teacher’s aide or amplification or whatever.
MR SEXTON: Well, those last examples, in a sense, your Honour, are really about the provision of services rather than the problem of section 5(1). But the difficulty with that analysis, in our submission, your Honour, is that if one approaches subparagraph (g) in that way, it does have the result that no matter what the nature of the “disturbed behaviour” or its consequences, in some situations, at least, no action can be taken to avoid those consequences, which might include criminal conduct, of course, or, in the case of a school, problems of tort liability in the case of teachers and other students.
That is why we would resist that construction of section 4, but I still make the submission, your Honour, that it does not follow that even if one took that construction of section 4 that it necessarily determines the ground under section 5. In some ways, that is why we say that the best way to approach the legislation is by the question of the ground under section 5 and section 22, because it enables one to focus on the question of whether it is the unlawful consideration that is paramount or operative, or whether it is something else.
McHUGH J: Yes, but in most cases falling within (g) it is the manifestation particularly of the disease or disorder that will bring about the discrimination. Not so in the case of some well‑known condition such as, say, AIDS, but let us take dementia. Now, is it not the manifestation of the dementia that is likely to cause the discrimination? So does that not tend to favour the view that you look at the consequences rather than whatever the disease is underneath it? When you talk about dementia, can you really separate the description of the disease from the symptoms?
CALLINAN J: Particularly if you treat the brain as part of the body and look at (e) of the definition: “the malfunction . . . of a part of the person’s body” is the actual conduct or behaviour.
MR SEXTON: Well, except for this, your Honour, that there have been some references to paragraph (a) and to paragraph (e) of the definition of disability. They have never been raised at an earlier stage. I do not complain about that, but only, one would think, for the reason that because there is no reference to consequences or behaviour that they ‑ ‑ ‑
KIRBY J: Well, on one view, (g) is enough. Why bother about the others? It seems to be Parliament addressing itself specifically to this type of case.
MR SEXTON: Your Honour, that is why (g) has been the point of debate. We do not accept that it is enough.
KIRBY J: Exactly – well, I know you do not, but it seems on its face to be dealing with this precise type of case.
MR SEXTON: I agree that it is a difficult question that arises in paragraph (g). Justice McHugh has just given an example that sets out ‑ ‑ ‑
KIRBY J: I must admit that when I read it I wondered what all the problem was about. In the case it seemed as though Parliament had, rightly or wrongly, addressed itself to this sort of thing, therefore it is in disability and therefore causation gets caught up. I just think it is a big mistake to construe statutes clause by clause and paragraph by paragraph; it has to work as a whole.
MR SEXTON: We do not dispute that, your Honour, but that is why we prefer to start with the question of the ground and the question of whether that is an unlawful consideration, and we say that question just cannot be answered mechanically, by whatever construction is finally adopted, of section 4.
GLEESON CJ: Well, the Commissioner seems to have reasoned, rightly or wrongly, on the basis that you ask the question of ground by applying what he called the “but for” test, that considerations of safety and welfare were matters of motive, not the ground, and therefore, on the assumption that the disability includes the behaviour, the case is resolved against you. As I understand it, you assert a couple of errors of law in that process of reasoning. You may be right or you may be wrong about that. One is applying the “but for” test and another is in treating welfare and safety as matters of irrelevant motivation.
MR SEXTON: Yes, and that, in our submission, the Commissioner and really page 118 is perhaps the key page there, that the Commissioner never, in our submission, satisfactorily isolates any other ground, apart from the ground of health and safety.
GLEESON CJ: Does that cover what you want to say about ground?
MR SEXTON: Largely it does, your Honour, yes. Well, I have to make some reference briefly to Banovic and to Waters. I am conscious of the time, your Honour, but ‑ ‑ ‑
GLEESON CJ: Perhaps I could ask you – and I am only asking you this question for the convenience of people in the next case on the list – how long do you think you will take to complete your submission?
MR SEXTON: I hope half an hour, your Honour.
GLEESON CJ: Mr Solicitor?
MR BENNETT: Your Honours, the length of my submissions depends on whether I am stopped on constitutionality or whether the Court wishes to hear my argument on constitutionality.
GLEESON CJ: On constitutionality, nobody is putting a case against you, I do not think.
MR BENNETT: No, no one has, your Honour, but a section 78B notice was served and Justice Callinan at the special leave application raised the issue squarely, which is the main reason that I am here.
KIRBY J: Mr Gageler raised it only as relevant to the way you would approach the interpretation.
MR BENNETT: I accept that, your Honour. No one has raised it against me here. Now, if the Court stops me on it and says there is no issue of constitutionality, that shortens what I have to say.
CALLINAN J: No, it has not been raised by any party, nor has there been any suggestion that ‑ ‑ ‑
MR BENNETT: That significantly relieves me, your Honour. I would have thought in that case my submissions will be something like half an hour to 40 minutes.
GLEESON CJ: We will say that the next case will be not before 11 o’clock tomorrow morning and it will be in Court No 2, but we will finish this case off here.
MR BENNETT: If your Honour pleases.
GLEESON CJ: We will adjourn until 10.15 am tomorrow morning.
AT 4.15 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 30 APRIL 2003
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