S on behalf of M & C v Director General, Department of Education & Training - [2001] NSWADT 43

No judgment structure available for this case.

CITATION: S on behalf of M & C -v- Director General, Department of Education & Training [2001] NSWADT 43

DIVISION: Equal Opportunity Division

PARTIES: APPLICANT
Mrs S on behalf of C & M
RESPONDENT
Director General, Department of Education & Training

FILE NUMBER: 50 of 1998

HEARING DATES: 03/04/2000
04/04/2000
05/04/2000

SUBMISSIONS CLOSED: 08/31/2000

DATE OF DECISION:
03/21/2001

BEFORE: Britton A - Judicial Member; McDonald O - Member; Mooney L - Member

APPLICATION: Disability Discrimination - Education

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977

CASES CITED: Briginshaw v Briginshaw (1938) 60 CLR at 361-362
Fenwick v Beveridge Building Products Pty Ltd (1986) EOC 92-147
Department of Health v Arumugam (1987) EOC 92-195
Hafez -v- Warilla Women's Refuge Ltd, Clegg and McEwan [3 of 1993 & 40 of 1995] NSWEOT
Commonwealth Bank v Human Rights and Equal Opportunity Commission (1998) 150 ALR 1
Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808
Lal v President, Anti-Discrimination Board of New South Wales [2000] NSWADT 68
Crewdson -v- President, Anti-Discrimination Board of New South Wales [2000] NSWADT 60

REPRESENTATION: APPLICANT
In person
RESPONDENT
S Winters, barrister

ORDERS: 1. The complaint is dismissed

1 This decision concerns a complaint, made by a mother on behalf of her daughters, of unlawful discrimination on the grounds of disability, in the area of education.

2 At the commencement of this inquiry, at the request of the respondent we made directions, pursuant to section 110A(1) of the Anti-Discrimination Act 1977 (the Act), prohibiting the publication of any information that might identify the applicants, the schools the subject of this complaint, and their staff. In keeping with this order we refer, in this decision, to the applicants as M and C; their father and mother as Mr and Mrs S; and the schools simply as “School 1” and “School 2”. Staff and students are referred to by pseudonyms.

3 On 12 November 1996, Mrs S lodged a complaint with the Anti- Discrimination Board (“the Board”) alleging that the respondent, through the actions of the two schools, unlawfully discriminated against her daughters on the grounds of their respective disabilities. Conciliation was attempted but was unsuccessful. On 28 April 1998 the President of the Board referred the complaint to the Administrative Decisions Tribunal (the Tribunal) pursuant to section 94(1) of the Act.

4 While the applicants had the benefit of some preliminary legal assistance in the preparation of their case, their mother had the carriage of the case before the Tribunal. Ms Winters, of counsel, represented the respondent, the Director General, Department of Education and Training.

SUMMARY OF THE COMPLAINT

5 The Points of Claim filed with the Tribunal on 25 May 1999 together with some of the applicant’s witness statements were prepared by their (then) legal representative. The points of claim allege that both applicants were denied access or given limited access to an education free of harassment contrary to s49L(2)(a) of the Act; and in the alternative, that they were subject to the detriment of bullying and harassment contrary to s49L(2)(c) of the Act.

6 It is apparent from both the President’s Report and the case presented on behalf of the applicants, that the Points of Claim are narrower in scope than the complaint described to the Tribunal and did not fully describe the ambit of the claim.

7 The Tribunal understands the complaint to be as follows:

First, School 1 in the application of its discipline policy, treated C and M less favourably than students without a disability. Examples of alleged less favourable treatment include the “scissors”, “balcony”, “bus line” and “grass whipping” incidents; the refusal to allow M to attend various school excursions, and the suspension of C for three days in March 1995.

Second, School 1, indirectly discriminated against M, requiring that she comply with the School’s discipline code, a requirement, it is asserted, with which she was unable to comply.

Third, School 1 failed to take appropriate steps to prevent continued harassment of C and M by their respective peers.

Fourth, the respondent, directly discriminated against M by refusing to accept her 1997 application to enrol in School 2.

Fifth, contrary to the provisions of s 50 of the Act, the principal of School 1, victimised the applicants and their father, by taking out an apprehended violence order (AVO) against Mr S.

RELEVANT LEGISLATIVE PROVISIONS

8 The substantive provision on which Mrs S relies is s 49L of the Act. That section relevantly provides:

9 Section 4 of the Act defines ‘disability’ to mean:

10 The test of what constitutes discrimination on the ground of disability is set out in section 49B of the Act, which states:

11 Section 4A of the Act provides that if:

(a) an act is done for 2 or more reasons, and

(b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act),then, for the purposes of this Act, the act is taken to be done for that reason.

ONUS OF PROOF

12 In determining whether the applicants have substantiated their complaints, we have applied the civil standard of proof. However we have taken into account the gravity of the allegations and the serious consequences of any adverse findings to the respondent: see the remarks of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR at 361-362.

Background

13 M, the elder of the applicants, was born in 1981 and attended School 1 from 1994 until May 1997 when her parents withdrew her from that school. She entered School 1 in Year 6 and left when she was in Year 9. Her younger sister, C, was born in 1982. She commenced at School 1 six months after her sister. She was then in Year 5.

14 C was born with a cleft palate and has undergone 17 operations to correct that condition. At all relevant times her hearing was impaired and she wore a hearing aid. Since pre-school she received speech pathology to correct language and speech problems. While enrolled at School 1, she suffered a speech impediment.

15 M suffers from a condition known as Attention Deficit Hyperactive Disorder (ADHD).

16 It is not in dispute that both applicants suffer from a disability as defined by the Act.

17 The schools, the subject of this inquiry, are State Government schools, located in regional NSW. At the time M and C were enrolled (the relevant period), about 1400 students attended School 1, from kindergarten to Year 12. Average class size was 28.

18 Approximately 42 students with moderate to severe intellectual disabilities attended School 1. Six special classes accommodated these students.

19 School 2 is a State Government High School located in the same region as School 1.

ADHD

20 We acknowledge that there is a difference between Attention Deficit Disorder and ADHD. However, in this decision, for convenience we will use these labels interchangeably. A publication produced by the respondent, Collaborative Management of students with ADHD, describes ADHD as

“...a mixed group of disruptive behaviours. These behaviours can have many causes and effects and their characteristics merge with normal behaviour. ADHD is a medically diagnostic label given when these behaviours cause difficulty with the child’s development; behaviour and performance; family relations and social interactions. Individuals with the disorder may be distractible, inattentive, impulsive and sometimes hyperactive.”

21 The publication states that ADHD can affect school performance and that students with this disorder may have trouble with the following: remaining seated; following instructions; concentrating on one task; taking turns; finishing work; understanding and following rules; organising tasks; working and playing in groups.

22 Paediatrician, Dr Ingall, diagnosed M as suffering from ADD in about 1991. In a report dated June 17 1999, Dr Ingall states that M suffers from a combination of “mild cognitive impairment, mild to moderate social immaturity and moderate ADD with hyperactivity.” According to Dr Ingall, M displays the symptoms of ADHD: she is impulsive, inattentive and/or hyperactive.

23 Dr Ingall prescribed medication to assist M with her learning and behavioural difficulties while she was at School 1.

ISTB

24 Throughout the relevant period, School 1 utilised the services of the Behaviour Support Unit, a unit operated by the respondent to assist students with behavioural problems. This unit operated the Itinerant Support Teacher Behaviour (ISTB) program, an outreach program designed to provide assistance to students with behavioural problems (and their teachers), within the school environment. Teachers attached to the program visited the students enrolled in the program and liased with their school. M was referred to the ISTB in 1994. Mrs M, an ISTB teacher, devised and implemented a special behaviour program for M in consultation with her teachers. For most of 1994 and until June 1995, M was seen twice a week by Mrs M, both in and out of the classroom.

Educational standards of the applicants

25 In 1996, C then 13 years of age, was referred by School 1, to the Regional Health Service for assessment because of learning difficulties. A report prepared by the Health Service concluded that C presented significant delays in fine motor coordination demonstrating an age equivalent of about seven years - five behind C’s chronological age. She was also tested for visual perceptual skills and scored the equivalent of an average 8 year old. The report concluded these significant delays in key skill areas would affect her academic performance, especially in the areas of writing and reading.

26 The report recommended that C be provided with assistance to cope with academic work and recommended a number of strategies including additional time to complete work, use of a scribe during exams and occupational therapy.

27 M was also referred to the Health Service for assessment in February 1996. The Health Service concluded that M demonstrated a four-year delay in fine motor skills and a seven-year delay in her visual perceptual skills. The report concluded that this would directly affect M’s academic performance especially in the areas of writing, spelling and reading. Similar strategies to those proposed for her sister were recommended.

School 1’s Discipline Policy

28 School 1 operated what it described as a “Merit and Behaviour Code” (the Code) for students enrolled in Years 7-12. The Code’s stated objective is to “foster in students a sense of pride in all that they undertake, the development of self-discipline, and a genuine concern for their welfare as well as that of their peers.”

29 Under the Code meritorious behaviour is to be formally recognised and rewarded. Students are issued with merit certificates for academic, sporting or civic achievement. Once a student has obtained four merits certificates they progress to a bronze award. An additional four certificates leads to a silver award. The highest accolade, the gold award, is issued to students who earn a minimum of twelve certificates across three recognised categories: sport, academia and civic achievement. Award recipients are presented with certificates at school assemblies. Recipients also receive certain privileges, such as discounted prices from nominated local retailers.

30 The Code establishes what is described as a “level system” as a mechanism for dealing with inappropriate behaviour. Under this system all students are placed on one of five defined levels. At the day of enrolment and at the beginning of each year, all students are placed on Level 1, entitling the student to privileges such as attending school excursions. These privileges are lost if a student is downgraded to Level 2, 3, 4 or 5 for inappropriate behaviour.

31 The level on which an offending student is placed is determined by the severity of the inappropriate behaviour, with Level 5 being for the most extreme behaviour. Examples of behaviour that might lead to a demotion to Level 5 include violence against another student or staff member or abusive language. The length of time an individual student will spend on any particular level is determined by a number of factors, most importantly, the nature and frequency of the inappropriate behaviour. Once the student had displayed appropriate behaviour for a period, as agreed between the relevant staff member and the student, the student returns to level one. In this decision we will adopt the term used by the applicants, “on a level”, to describe the situation where a student has been placed on a level other than Level 1.

EVIDENCE

Application of School 1’s Discipline Code: C

32 It is not in issue that C encountered fewer problems with school discipline than her sister. During her two-year enrolment at School 1 there were only six major incidents regarding breaches of school discipline policy.

Toilet Block Incident 14 March 1995

33 In March 1995, C was suspended from School 1 for two days following an incident in the school toilet block. C gave evidence that she grabbed another student who had been taunting her, saying she had AIDS. According to C, no action was taken against the students who had teased her.

34 Following the incident, a teacher, Mr P, interviewed the students involved and prepared a report. The report stated that a student, Zion, had been screaming, and that appeared to have been the reason for C’s attack. C admitted to locking herself in a toilet cubicle with Zion. C shook Zion to stop her screaming. Zion fell to the ground. C admitted to stepping on Zion’s chest and ankle. Zion made some efforts to defend herself and tried to bite C.

35 On the basis of this report, Principal C concluded that C had been the aggressor. The report made no mention of the AIDS taunts.

36 Principal C gave evidence that at a meeting with C’s parents following the incident he outlined his understanding of the incident based on Mr P’s report. According to Principal C, C was present at that meeting and conceded that that account was correct.

37 Zion was suspended from the playground for her part in the incident.

Application of School 1’s Discipline Code: M

General

38 M gave evidence that she was always “on a level”. She said she was often in trouble for things she didn’t do because: “The teachers didn’t care about me”. She said that the principal often stood over her and forced her to confess to things she had not done; she was scared of him. Principal C characterised M’s disciplinary file for 1996 and 1997 as “voluminous.”

39 M gave evidence that after leaving School 1 she enrolled at the local TAFE. She enjoyed TAFE; had recently obtained her Year 9 certificate and could now read.

Ruler incident

40 M gave evidence of an incident that occurred during a maths class, where students had been throwing wooden blocks at her. She deflected them using a ruler. According to M, her teacher, Teacher R, blamed her for the incident, grabbed her by the hood of her jacket and swung her out of the classroom, shutting the door. She said the principal yelled at her and immediately placed her on Level 4.

41 Teacher R disputed M’s account. According to him M had been disruptive in class; he instructed her to stop; she refused and proceeded to crawl around the class; M then picked up a large wooden ruler and motioned to strike some of the students; he asked her for the ruler; she refused and threatened to strike him. This account is consistent with a file note prepared by Teacher R following the incident. A hand-written note taken by the (then) Deputy Principal, Mr D, following the incident, stated that M admitted that she tried to strike Teacher R and other students. This note was not signed by M.

42 M said in evidence “ Teacher R hated me so I hated him back”.

Regional Art Gallery Excursion

43 M gave evidence that prior to a school excursion to a regional Art Gallery, she advised her art teacher, that she was on the last day of a Level 2 detention. According to M he replied, “Don’t worry, you’ll be off the level by then. Just come.”

44 The day after the excursion M was reprimanded for attending the excursion on the grounds that she was still on a level. According to M, she explained to Deputy Principal E that her art teacher had given her permission to attend. As punishment, Deputy Principal E placed M on Level 4.

Questacon Maths Excursion

45 M gave evidence that Teacher R stopped her attending a class excursion to the Questacon Exhibition in 1996, despite the fact she was not on a level at that time and had paid the excursion fees. She attended the exhibition with her mother, independently of the school.

46 Teacher R’s evidence contradicted that of M. According to him M was on level at the time of the exursion: thus her exclusion.

Hair cutting incident

47 M gave evidence that during a maths class the student seated immediately behind her, Peters, cut her hair. According to M, she grabbed the scissors in retaliation and snipped Peters’ hair. She was suspended for three days. M gave evidence, corroborated by her mother, that her parents did not allow her to take sharp objects to school.

48 A file note prepared by Teacher R following the incident stated that during the class Peters informed him that M had cut her hair. He questioned students who claimed that Peters had not provoked M.

49 Deputy Principal E gave evidence that at an interview following this incident M explained to her she did not actually see Peters cut her hair but thought she must have done so as other students were laughing.

Harassment of C

The grass-whipping incident

50 C gave evidence that during a Physical Education class, in Year 6, she was tormented by some classmates in the presence of the supervising teacher, Teacher X. Two students, Brown and Dillon, whipped her with whips made from plaited grass leaving welts on her legs. C said she reported this to Teacher X who dismissed her complaint saying, “I don’t believe you, get back in line and get on with play.”

51 An undated note prepared by Teacher X following the incident tendered in evidence, stated: a student complained to him that C had been throwing grass; he reprimanded C; at no stage did he see grass being thrown at C or any marks on her legs, nor did C complain to him on that day.

52 Following the alleged incident, C’s parents voiced their concerns with what they considered to be the lenient treatment of Brown and Dillon and requested a meeting with the school. A file note prepared by Principal C states that at the meeting it was agreed that he would talk to C and the boys, about their behaviour. It was also agreed that C be referred to a member of staff to assist her develop strategies to deal with teasing.

Bus Line Incident

53 C gave evidence that in September 1996, while standing in line to board the school bus, she was savagely kicked by fellow student, White. According to C, Deputy Principal E, who had been supervising the students, “just looked away”.

54 Following the incident, C saw a doctor for treatment. A medical report tendered in evidence, stated C had been treated for severe bruising.

55 Deputy Principal E gave evidence that following the incident she interviewed all students and concluded that the incident was the result of the “ general chaos on the bus line ...there was no evidence that the injury was deliberately caused.”

56 C claimed that the offending student was placed on a Level 2; Deputy Principal E said in evidence that no action was taken against any student.

AIDS taunting

57 C gave evidence that throughout her time at the school she was repeatedly taunted about having AIDS and complained of this to many teachers. She recalled one occasion when she complained to Teacher X who said “run along you are making it up”. Teacher X denied this. According to C, other teachers said they would take action but she saw no evidence of this; the tormenting continued.

58 C said in evidence she was always hiding because of the harassment. She claimed, she begged the Principal C to suspend her so she could escape her tormentors.

59 Mrs S gave evidence that her daughter repeatedly told her was being harassed at school. According to C’s father (with the notable exception of Teacher McK), the school took no action.

60 Principal C gave evidence that when he become aware of the harassment he made a point of lecturing a school assembly that teasing was unacceptable. In addition he arranged for a similar warning to be given by the head teacher of C’s Year separately to students under his charge. It was his understanding that after this action, the harassment abated for about 12 months.

61 Teacher McK gave evidence that he had outlined to C a number of strategies to deal with the teasing. He advised her to try and ignore it and to report to him if it became intolerable. He said that where any teasing occurred, of which the teachers were aware, the perpetrators were punished.

Harassment of M

Balcony incident 23 March 1995

62 M gave evidence that she initially enjoyed School 1 and enjoyed a good relationship with her teachers. However on entering high school the situation deteriorated. She said a gang of Year 8 students constantly bullied her. She claimed to spend most lunch breaks in the library in order to escape these students.

63 M gave evidence that on one occasion two members of the gang, grabbed her, and attempted to throw her over the balcony. She screamed and reported this to Teacher D. Later that day, she told Principal C of the incident whom, according to M, was dismissive, saying, “Don’t be silly, they wouldn’t have tried to push you off.”

64 Mr D gave evidence that he investigated M’s allegation and concluded that one student, Russell, had threatened to throw M over the balcony but no attempts were made to carry out this threat. The two offenders were suspended.

Bronze Level Award

65 M gave evidence that in mid-1996 she was awarded a Bronze Level Award, however, was unable to enjoy any of the benefits of this award as it was taken from her shortly after. According to M, her name was not published in the school newspaper nor was the award presented to her at assembly by the principal, as was customary.

66 Principal C conceded in evidence that he may have said to Mrs S that some teachers were dismayed with the decision to grant M a bronze award because of her general misbehaviour throughout the year; he denied taking steps to prevent M being placed on the award. He could not recall the precise reason why M was not presented with the award but thought the reason may have been the short period she held the award.

Support provided to M

ISTB

67 Mr B, the Executive teacher of the Behaviour Support Unit in School 1’s area, gave evidence that M was referred to the unit in February 1994. A program was devised and implemented by Mrs M who was employed by the unit. In his opinion, and that of Principal C, M responded positively to the program. Her behaviour remained a concern and at the end of 1994 a special transition program was developed to assist M with the transition to secondary school. According to Mr B numerous meetings were held between the ISTB unit and M’s teachers in an effort to provide consistent and appropriate strategies to assist staff deal with M’s behaviour. For most of 1994 to mid-1995 M was seen by the unit twice a week, both in and out of the classroom. Intervention ended in about June 1995 when it was perceived that she had reached a point when she needed to be more independent and showed signs of being able to cope in the class room.

68 M gave evidence that she enjoyed her classes with Mrs M. “She was nice…she taught me how to relax…she told me not to worry about what other people said”. In evidence M indicated that she was upset when the decision was made, “to take Mrs M away.”

69 Mr B gave evidence that at the end of 1996 M was again referred to the ISTB because of the School’s concern with M’s behaviour. The ISTB, in consultation with M’s parents and teachers, developed a special program for M that included a “time out” arrangement that she could activate if she felt upset or agitated.

70 In answer to a question from the Tribunal, Principal C replied that he believed the resources made available by the Department were probably adequate to deal with a student, such as M, with ADHD. The resources available at district level included itinerant teacher support to assist with vision and hearing and behaviour disorder; and at the school level, a support teacher to assist with M’s learning difficulties. Specialised programs were also formulated in Maths and English for students such as M and C. Students allocated to the support teacher were regularly assessed and taken off the program if there were a student with greater need.

71 Principal C disputed M’s claim that she received no assistance with reading and maths. He said that M received help with reading from various support teachers, including Mrs S. A special maths program also had been put in place for M. He stated that he believed that M “ certainly did have additional support, whatever was available, bearing in mind that with a large school only a small amount of support is available for individual children, but whatever support was available, was certainly offered to her.”

School Counsellor

72 Prior to 1996, Mr N had been the District School Counsellor (DSC) responsible for School 1 and other schools in the region. From 1996 he was based at School 1. Mr N gave evidence that he did not see M or C in 1994 and had irregular contact with them in 1995.

73 He gave evidence that he met with M’s paediatrician, Dr Ingall, on a regular basis. He also liased with various specialists about C’s hearing difficulties.

74 M said she did not trust Mr N, following an incident where he repeated to the principal her remark that she was pleased to have been suspended. Mr N said in evidence he could not recall that conversation, however, he would report a student if in his view they had been manipulating the School’s discipline Code.

75 Mr N was aware that C was unhappy at school but he could not recall whether she had told him she had been teased.

76 In answer to a question from the Tribunal, Mrs S said that she spoke to Mr N on at least two occasions about special reading classes for M. According to Mrs S, M was referred for assessment but she was not advised of the results. No further action was taken. In her opinion, the ISTB program was restricted to lifestyle skills such as learning to deal with stress and did not extend to reading tuition. Mrs S later responded to questioning from the Tribunal that she had been aware that a special timetable had been developed for M, for some classes.

77 In cross-examination, Mrs S agreed with the proposition that M’s behaviour may have impeded her capacity and ability to read.

Communication with staff about M’s condition

78 Mrs S gave evidence that when Principal C was appointed principal of School 1 in 1994, she advised him of M’s condition; he responded, “If I were you I’d keep that quiet or she will be teased.” Mrs S said she had suggested it would be better if all teachers were informed of her daughter’s ADHD, and he replied, “Well it’s my school and its best left in my hands.” Principal C denies this.

79 Mrs S gave evidence that she asked Principal C if she could she talk to individual members of the teaching staff about M’s ADD; Principal C refused to allow this, unless he was present. Principal C denied this; all parents were free to meet with teaching staff; they need only arrange an appointment independently of him, through the front office. His practice was not to only attend meetings between parents and teachers unless a serious matter was to be discussed.

80 Mrs S gave evidence that she attempted on a number of occasions to discuss M’s medical condition with Deputy Principal E. She recalled that on one occasion, the Deputy Principal refused her request to ask M’s teachers to complete a medical evaluation form for M’s pediatrician, saying, “I don’t think the teachers should be doing this, then they will know about the ADD.” Deputy Principal E denies this.

81 Teacher D gave evidence that in early 1996 he was asked to complete a Pupil Progress profile for Dr Ingall. He interviewed all M’s teachers in order to complete the form.

82 Mrs S gave evidence that at a meeting initiated by Deputy Principal E in early 1997, the Deputy Principal, said words to the effect, “No matter how much education you give M it will never do her any good, she would never learn, it is a waste of time, a lost cause… You need to put a great deal of thought into whether it’s worth her continuing at school.” Deputy Principal E denies this. However she agrees that she did say something along the lines that if the S family was of the view that the school did not suit M’s needs, they should consider removing her.

83 Deputy Principal E said in evidence that M was not treated differently to other students, but in her opinion M’s family expected her to be.

84 In evidence, Teachers A and R said that they had been aware that M had behavioural problems but had been unaware she had ADHD throughout the period that they had taught her.

Enrolment at School 2

85 In late 1997, Mrs S applied to enrol her daughters at School 2. C’s enrolment was accepted, subject to certain conditions.

86 The principal of School 2 wrote to M’s parents on December 12 1997, advising of the decision not to accept M as a student. The letter cited Departmental policy which provided that enrolment may be refused on the grounds “of previously documented violent behaviour if there is evidence that the student has not learned the appropriate skills to manage this behaviour.” The letter cited several examples of M’s allegedly violent behaviour

Apprehended Violence Order

87 Principal C gave evidence that throughout the period M and C attended School 1, their father had subjected he and other staff members to repeated threats. On 26 March 1996 Principal C wrote to the Department's District Superintendent reporting an incident where, he alleged Mr S had said, “If either of my daughters are hit again by anyone I will be up there after you personally… and that means in your personal life as well.”

88 Principal C gave evidence that on 13 March 1997 he met with Mr S to discuss M. According to Principal C, Mr S said “Don’t you speak to my daughter that way…she is disabled”. The meeting deteriorated and concluded with Mr S shouting, “If you speak to my daughter that way again, I will smash your face in.” A contemporaneous note taken by Deputy Principal E, who attended this meeting is consistent with this account.

89 Mr Smith denies threatening Principal C.

90 Principal C gave evidence that the 13 March meeting prompted his decision to apply for an AVO against Mr S. An interim AVO was granted by the Ballina Local Court on 22 April 1997, prohibiting Mr S from contacting Principal C and from approaching the school, except by invitation of the school’s administrators or, prior arrangement.

FINDINGS AND CONCLUSIONS

General

91 Not surprisingly, given the passage of time since the events, the subject of the applicants’ complaint, occurred, significant inconsistencies in the evidence have emerged. The Tribunal notes that the applicants and their mother, unlike the respondent’s witnesses, did not have the advantage of detailed contemporaneous records to assist them with their recollection of events. Accordingly, in relation to some matters the applicants could not assist the Tribunal with details and, on occasion, their recollection of particular events was faulty. This is not intended as a criticism of the applicants or their mother. Rather it acknowledges that applicants often have difficulty presenting evidence when the behaviour complained of spans a lengthy period and they do not have the benefit of notes taken at the time. In these circumstances evidence may be reconstructed inaccurately from faulty memories rather than from memories refreshed by reference to documents or other contemporaneously recorded material.

92 A large amount of material about M and C’s experience at School 1 and their interaction with their peers was presented to the Tribunal by the applicants. Some of this evidence was not strictly relevant but contributed to the Tribunal’s overall understanding of the background to the complaint. While we have not referred to all of the evidence put to the Tribunal, we have taken into account all relevant and cogent evidence.

Direct Discrimination -Less Favourable Treatment in application of School’s Code

93 We understand from the applicants’ submissions that the claim of less favourable treatment in relation to the application of the Code can be described as follows:

First, School 1 punished C, and in particular M, more harshly than students in comparable circumstances, who did not suffer from the applicants respective disabilities; and

Second, M, in contrast to students who did not suffer from ADHD, was denied certain rewards and privileges, otherwise available under the Code.

94 The Tribunal must determine whether the evidence supports a finding that School 1, as alleged, in administering its discipline policy, afforded M and C less favourable treatment than students without a disability, in circumstances not materially different. If the Tribunal finds this to be the case, we must then determine whether such adverse and disparate treatment, was on the grounds (or one of the grounds) of the girls’ respective disabilities.

95 It is evident that while the Code sets out detailed guidelines relating to the application of School 1’s discipline policy, it affords the staff member charged with its administration, significant discretion. For example, the Code provides that a student may be placed on Level 2 for, among other reasons, “repeatedly causing problems in class and /or playground”. What constitutes a “repeated problem” is a matter of subjective assessment. Similarly, while the Code sets out the consequences of a Level 2, 3, 4 or 5 placement, the responsible staff member has available a range of disciplinary options, within defined parameters.

96 Before considering this aspect of the complaint, we make some preliminary observations about the procedures employed by School 1 in investigating allegations of inappropriate behaviour involving M and C. Mrs S led some evidence, which suggested that staff investigating incidents involving M and C, were biased. We are not persuaded that this was the case but nor are we persuaded that the School always reached the correct conclusion as to the veracity of competing versions of events about incidents involving the applicants. It appears to us from the evidence presented, that reasonable, and in some cases exhaustive, efforts were made to interview relevant witnesses in an effort to determine the veracity of conflicting accounts. For example, the evidence in relation to the "balcony incident" reveals that extensive and timely efforts were made to investigate M’s complaint. There is no evidence to suggest in relation to any incident referred to in evidence, which the interviewing teachers failed to interview M or C, or reached conclusions unfavourable to either applicant, that could not be supported on the evidence available.

97 This is not to say that the conclusions reached by the school were in all cases, correct. The task of investigating an incident was no doubt made difficult by the fact that the evidence of some students was invariably infected by personal loyalties and dislikes. Faced with conflicting evidence, the school, like any court or tribunal will invariably err in its determinations, from time to time.

98 In relation to M, Mrs S nominates four examples, which, she asserts, point to evidence of less favourable treatment. These include the “scissor incident", the “ruler incident" and her daughter's exclusion from the Questacon and art exhibition excursions. These, argue Mrs S, stand in marked contrast to the more lenient punishment meted out to the students involved in the comparable, if not more serious, balcony incident.

99 In relation to the scissor incident, the Tribunal accepts the evidence of M that she cut P’s hair because she genuinely believed P had cut hers. However the evidence does not support a finding that M’s hair was in fact cut or that M had been provoked by P. In light of the school’s findings, M’s three-day suspension would appear to be consistent with the disciplinary parameters set out in the Code. There is nothing in the Code to suggest that M’s punishment, in this instance, was unnecessarily harsh.

100 In relation to the ruler incident, while there are some minor inconsistencies between the evidence of M and Teacher R, M’s account of this incident given in evidence-in-chief is broadly consistent with that of her teacher’s. The evidence shows that M had been disruptive in class, Teacher R instructed her to pack away her equipment; she refused and motioned to strike other students with the ruler. She left the class without permission, ruler in hand. There is no evidence that M’s three day suspension was either inconsistent with the Code or more severe than the punishment that would have been afforded a student without a disability, in comparable circumstances.

101 The critical issue raised in relation to the Questacon incident, is whether on the relevant day M, was as claimed, on Level 1 and thus entitled to attend the excursion. Teacher R’s evidence, that she was not on Level 1 at the time, is supported by the School’s records (RD 47-50). On this point the evidence of Teacher R is preferred.

102 The Code makes clear that to attend an excursion, a student must be on Level 1. The Code provides that the ban on Level 2-5 students attending an excursion is mandatory. There is no evidence before the Tribunal to suggest that in practice, this provision was waived. Accordingly we are not persuaded that the ban on M attending the Questacon excursion could be characterized as less favourable treatment.

103 Mrs S asserts that the three-day suspension of her daughter following the hair-cutting incident stands in marked contrast to the lenient treatment of the offending student/s involved in the balcony incident. The best evidence in relation to the balcony incident is that a group of students had been teasing M and threatened to throw her off the balcony. One, Russell, actually grabbed her. The school took prompt action and interviewed all involved. The Tribunal accepts M’s evidence that she was terrified and genuinely believed that the girls intended to throw her off the balcony. This caused her great distress. However the finding made by the school that while M had been threatened, no attempt was made to throw her over the balcony, was clearly open to it on the basis of their investigations.

104 We understand Mrs S to argue that the two day suspension of Russell represents the punishment benchmark for behaviour involving threats of physical violence against a fellow student. It follows, argues Mrs S, that her daughter’s three-day suspension following the hair cutting incident represents less favourable treatment.

105 We do not agree. The Code makes clear that a range of factors must be taken into account in imposing punishment. These include considering whether the incident represents yet another example of recalcitrant behaviour. But in any event, we are not satisfied that this one example of different treatment for what can at best be described as broadly comparable misdemeanours is evidence of less favourable treatment.

106 None of the individual incidents relied on by Mrs S to establish differential treatment of M resulted in punishment that could be said to fall outside the parameters set by the Code. No evidence has presented that indicates that the Code represents nothing more than a document of intent, selectively administered. Nor are we persuaded, that taken as whole, these incidents indicate a pattern of unfavourable treatment on the part of the School.

107 As we are not satisfied that the evidence supports a finding that M was subject to less favourable treatment, it is unnecessary for us to determine whether the treatment was referable to her disability.

108 In relation to C, the only significant example of inappropriate behaviour raised by Mrs S was the “toilet block” incident. There is no evidence to support a finding that C’s suspension, following this incident was more harsh than would have been afforded to a student without C’s disability, in comparable circumstances. Accordingly this head of claim in relation to both applicants is dismissed.

Bronze Merit award

109 The evidence shows that in September 1996, M achieved a bronze certificate but the school failed to formally acknowledge this achievement in the customary manner. Public acknowledgment of an award recipient is a central plank of the Code. The school have not challenged Mrs S’s assertion that all students granted an award are publicly acknowledged and receive various benefits. There is no evidence before us, of examples of students granted an award under the Code, but not publicly acknowledged. We are satisfied that M’s denial of the customary benefits associated with award status represents a detriment. On the face, it appears to us that there is some evidence that the treatment afforded to M was less favourable than that afforded to other students without ADHD.

110 However to succeed in this claim of unlawful discrimination, the applicants must also establish on balance, that the decision not to present M with the award was on the grounds of her disability. Why was M’s bronze award not formally acknowledged? Was her disability one of the reasons? The evidence establishes that there was some staff disquiet surrounding M’s award. Was this the reason M did not receive the customary acknowledgments and benefits that went with the bronze award? The evidence is unclear. For all we know staff concern may have played no role, and as suggested on behalf of the respondent, the logistics of the situation may have dictated that there was simply insufficient time to present the award, as M was returned to a level, almost immediately, because of inappropriate behaviour.

111 In cases where there is no direct evidence of the discrimination, the applicant may use, in support, inferences drawn from the primary facts: see Fenwick v Beveridge Building Products Pty Ltd (1986) EOC 92-147.

112 It is open to the Tribunal, having taken into account all the circumstances surrounding the respondent’s treatment of the applicant, to make a finding of unlawful discrimination. However such a finding cannot be inferred where more probable and innocent explanations are available on the evidence: Department of Health v Arumugam (1987) EOC 92-195; (1988) VR 319; Hafez -v- Warilla Women's Refuge Ltd, Clegg and McEwan [3 of 1993 & 40 of 1995] NSWEOT.

113 In this Inquiry we have to undertake the same exercise, asking the question, whether the evidence taken as a whole supports the inference that M’s disability was an operative factor in the actions of the School in relation to the bronze award. M need not establish that her disability was the only reason for her alleged discriminatory treatment. Section 4A of the Act provides that if an act is done for two or more reasons, and one of the reasons consists of unlawful discrimination, the act is to be taken to have been for the unlawful discriminatory reason.

114 Mrs S asserts that as all other students who achieved an award were granted the customary entitlements that go with award status, it follows that M’s disability was an operative factor in the decision not to bestow M with these same benefits.

115 The respondent on the other hand maintains that no formal decision was made not to present M with her award; from the school’s records it is not entirely clear why this occurred; it was probably a bureaucratic oversight; M’s disability played no part in the “decision”.

116 The Tribunal does not underestimate M’s disappointment at School 1’s failure to acknowledge publicly her not inconsiderable achievement. She justifiably believed she deserved, and was entitled to the benefits that came with the award. Here was a student, constantly in strife and in breach of the Code who uncharacteristically had managed to fulfil the requirements for a bronze award. This was no small achievement. The Department’s literature on ADD and a key part of the ITSB program advocated that students suffering from ADD should receive positive reinforcement for “appropriate” behaviour. But however ill-advised this decision (or oversight) might have been, and disappointing to M, on balance we are not satisfied that the evidence taken as a whole permits us to draw the inference that there existed a causal link between M’s disability and the School’s failure to publicly acknowledge her bronze award. Accordingly this part of the claim is dismissed.

Indirect Discrimination -Application of School’s Discipline Code

117 We understand Mrs S to argue that the requirement that M comply with the Code constitutes indirect discrimination contrary to the provisions of section 49B(1)(b) of the Act. Mrs S submits there were times when M “simply was not capable of controlling her behaviour” and thus the requirement that M comply with the code was unreasonable.

118 Indirect discrimination occurs when a requirement or condition, neutral in its terms and apparently applying equally to all persons, in fact disadvantages a particular group. Section 49B(1)(b) of the Act provides that a person indirectly discriminates against another where it:

requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

119 To establish whether or not a group (or individuals within the group) is/are subject to indirect discrimination, it is first necessary to identify the pool of persons or group concerned. In this case, it appears to us that the relevant group is made up of those students suffering from ADD or ADHD who attend School 1. Obviously, the wider group against whom the treatment of the subject group must be compared is the body of school students at this particular school. This is so because it is this body of students whom is obliged to comply with the code of conduct in question.

120 It is of interest and relevance to consider some of the aspects of ADD. In its document, Attention Deficit Disorder: Support Statement for School Personnel (Dept of School Education, March 1993) the signs of ADD are listed. A child who frequently fidgets; has difficulty remaining seated; is easily distracted; has difficulty awaiting a turn; who blurts out answers; has difficulty following instructions; does not sustain attention; often moves from one incomplete task to another; cannot play quietly; talks excessively; often interrupts or intrudes; does not seem to listen; often loses necessary items; and who engages in physically dangerous activities may be diagnosed as suffering from ADD if eight out of these 14 factors are present for six months or more: Ibid, p2.

121 The document notes that various problems, including behavioural difficulties, are frequently associated with ADD. A child with ADD may have learning difficulties; be resistant to authority figures; be physically aggressive or display disturbed conduct; and have poor peer relations. The document goes on to say:

“ADD is not a learning difficulty, but it is a disorder associated with learning difficulties…

Adolescents with ADD may experience difficulties in school because of the increased number of teachers involved in delivering secondary school education, the short duration of class periods, greater emphasis on individual self control, organisation and responsibility for completion of assignments…” op cit pp2-3

122 It is clear therefore that the Respondent has a good understanding of the syndrome and its effects on the behaviours of children affected by it. No evidence has been given as to the number of children with ADD who attend the School. For all we know, or have been told, there may only be one student in this category, the applicant M. We will return to this question, as it assumes some significance in the ultimate disposition of the case.

123 The central question for us to determine is whether, having regard to the circumstances of this particular case, it was reasonable to demand that M comply with the Code. The circumstances of the case encompass both objective and subjective factors. No sensible person would dispute that it is reasonable for a community, an organisation or a school to set rules and standards of conduct for its members/students. The point is so trite it needs no further discussion. It is obvious in this case that the Code was designed to apply to all in a neutral and equal fashion. The framers of the Code had no intention of discriminating against anyone by imposing the Code on the student body, and did not foresee any discriminatory consequences. But did it have indirect discriminatory consequences nonetheless?

124 It is argued for the Respondent that while there are many instances where M did not comply with the Code, there is no evidence that M could not comply. The essence of the applicant’s case, however, is that while she could at times comply with the Code, the fact that she regularly breached the Code, and was frequently subject to disciplinary action, leads to the inevitable inference that she was not able to comply with Code in a substantial and regular fashion. The second limb of her case is that, to comply, she needed a substantially greater degree of support from specialist teaching staff than she was given.

125 We have been told that the issue, as far as the school was concerned, was not one of resources. The evidence of the Respondent’s witnesses was that she was taken out of the ITSB program to enable her to develop her skills and to reduce her dependency on the program and was reinstated about 18 months later.

126 Before proceeding to examine the question of whether the condition to comply with the Code was reasonable or otherwise, it is necessary to deal with the threshold issue of comparing the applicant’s group with the wider group of students at her school. The test of indirect discrimination set out in s 49B(1)(b) requires the applicant to show that a substantially higher proportion of persons belonging to the main student body (of which her group, children with ADD or ADHD form a sub-group) are able to comply with the condition or requirement than members of her group. This task entails first, identifying these two groups, namely the group with which the applicant belongs; and second, a comparison between status groups, or the sub-group with the main group.

127 That this comparison must be undertaken is clear from the construction of s49B(1)(b) and the approach consistently followed by the authorities. (Mr McDonald takes issue with this point, being of the opinion that there is nothing in the wording of this section which (relevantly) states “requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability…. comply or are able to comply, being a requirement which…” to support the proposition that the Tribunal must determine whether the aggrieved person belongs to a group of persons with a similar disability (the sub-group).The only relevant group for the purpose of this section, contends Mr McDonald, is the school population which does not have that disability and in this case, can clearly (from the evidence ) comply. However as interpretation of legislation is a question of law, Mr McDonald accepts in accordance with s 78(2) of the Administrative Decisions Tribunal Act 1997 that that question is properly to be decided in accordance with the opinion of the judicial member.)

128 Missing from the evidence before the Tribunal is any material, which enables us to define and quantify the status group with which M can be said to belong. It may be that M’s disability is unique and there are no other students who suffer from the form of ADD or ADHD, which M suffers. It may be that she is but one of a number of a group of students who attended the school at the relevant period who suffered from a broadly similar condition. We simply do not know. Secondly, we have no evidence before us enabling us to estimate the degree of compliance with the Code practised by members of that group and the main student body. It is false logic to say, “M suffers from ADD. She has difficulty complying with the Code. Therefore all ADD sufferers are unable to substantially comply with the Code. ” We cannot extrapolate from the particular to the general in this sense. While there is some general evidence before us that some ADD students demonstrate behavioural problems in the school environment this does necessarily mean that they cannot or do not substantially comply with the Code. It may be that all ADD sufferers at the school do in fact have difficulty complying with the Code. On the other hand, M may be the only one of her sub-group who cannot substantially comply with it. We do not know, and any conclusions on this score we purported to make would be merely speculative.

129 Although it seems to us that, as a matter of law, the Department is entitled to succeed on this basis, we have a particular concern in relation to this case. While we consider that the condition that all students comply with the tenets of the school’s discipline code is not unreasonable, it seems to us that it was unreasonable of the school to enforce the disciplinary provisions of the Code in an inflexible fashion to all students irrespective of their particular differences. In Commonwealth Bank v Human Rights and Equal Opportunity Commission (1998) 150 ALR 1, the Federal Court held that the test of unreasonableness is an objective one in which the nature and extent of the discriminatory effect is weighed against the reasons advanced in favour of the requirement or condition and all the circumstances are taken into account. In short, in assessing whether or not a condition or requirement is unreasonable, a balancing exercise is undertaken.

130 The Department understands (because its own literature reveals this to be so) that children with ADD may have a tendency to impulsivity. If a child has that particular problem, he or she may well have far greater difficulty complying with codes of conduct, rules, laws, directions, demands and requests. It understands that their condition is often (although not always) characterised by outbursts of physical aggression – such children have difficulty with impulse control when they become frustrated or annoyed.

131 While such behaviour is clearly unacceptable, and it is reasonable to require that such children respect others and their property, it seems to us that it is unreasonable to apply a disciplinary regime in blanket fashion to all children regardless of their subjective features. This is particularly so if a child needs special support to enable him or her to comply with the requirement or condition and is not provided with that support.

132 While we accept the evidence put forward by the school that the reason for withdrawing M from the ITSB program was unrelated to resourcing issues but motivated by a concern to encourage M to be independent, the fact remains that the withdrawal of M from the ITSB program in mid-1995 meant that she was without the support of a special teacher or anyone else dedicated to supporting children with behavioural and learning difficulties for a period of 18 months. During this time she was constantly the subject of disciplinary action, her behaviour deteriorating to such an extent towards the end of the 18 month period, that the school was forced to reinstate her on the program.

133 We are conscious of the fact that teaching is an arduous profession and that most teachers are professional and humanitarian in their approach to children. We do not suggest in any way that the staff of School 1 were malicious or even negligent in their attitudes towards M. Indeed the evidence indicates that some teachers went to great lengths to assist and support M . However, with the benefit of hindsight, we consider, that it was asking too much of teachers with classes of about 25 to 30 students to provide the degree of attention, support and special care that M needed to progress in her studies and to comply substantially with the school’s code over the long term. Not only was M an ADD sufferer she was well behind her colleagues academically; her visual perceptual skills, critical to writing and reading were seven years behind the average. In those circumstances, it was unreasonable to expect that she could significantly modify her behaviour as a result of being frequently disciplined in the absence of that attention, support and special care. It was in our view therefore unreasonable to punish her in the same fashion as any other member of the student body if she failed to comply with the requirements of the Code.

134 The evidence revealed that two of M’s teachers had not been aware M suffered from ADHD. While on balance we are not persuaded that the evidence supports Mrs S’s contention that the school authorities took active steps to prevent teaching staff being appraised of M’s disability, the fact that, for whatever reason, two staff members were ignorant of this critical fact, points to the need for a specialised program such as the ITSB where staff were fully briefed on M’s condition and had at their disposal the resources to offer her the special attention her disability demanded.

135 To apply the disciplinary regime inflexibly to her was exactly the same as applying a mandatory sentencing regime – a form of punishment and social control, which has been shown to be largely ineffective in modifying the conduct of people with significant psychiatric or psychological difficulties. In our view, the school’s Code ought be amended to allow for greater flexibility in dealing with students with such problems.

Harassment

136 Mrs S asserts that C, and to a lesser extent M, were subjected to continued harassment by their peers and that this constitutes the denial or limitation of access to a benefit (the benefit being the enjoyment of the school experience) contrary to the provisions of s 49L(2)(a) of the Act; or alternatively, the detriment of bullying and harassment, contrary to the provisions of s 49L (2)(c) of the Act.

137 It would appear to us that this head of complaint could be characterised as falling within the definition of both direct and indirect discrimination as set out in s 49B(1)(a) and s 49B(1)(b) respectively.

138 We turn first to consider whether this claim falls within the test of indirect discrimination. The threshold issue for us to determine is whether the evidence supports a finding that the school, as alleged by the applicants, failed to act to prevent the harassment of C and/or M and if so, whether this failure to act could be characterised as a requirement or condition that the applicants accept a school environment characterised by continual peer harassment directed at them.

139 Ms S asserts that School 1’s failure to act to prevent the harassment of C is evidenced by the school’s failure to:

140 We turn first to the specific complaints namely the “bus line” and “grass whipping” incidents. We understand Mrs S to argue in relation to the bus line incident, that the school’s finding that C had been accidentally tripped, is simply implausible in light of C’s account and the severity of her injuries; it represented yet another example of the school authorities turning a blind eye to C’s harassment. While we accept the applicants’ evidence that C suffered bruising following the incident, we are not persuaded that this injury establishes that it was unreasonable for Deputy Principal E to reach the conclusion she did. Nor from the evidence presented would it appear that it was unreasonable for Deputy Principal E to prefer the evidence of other students over C, in this instance.

141 In relation to the grass-whipping incident, it is evident that there had been an altercation involving C and the two boys. The school intervened and warned C and the boys to stay away from each other. C’s father, displeased with this outcome, demanded the boys be suspended for their part in the incident.

142 In relation to this incident, the School did not accept C’s account but it did accept there was friction between the three and took steps to prevent any future altercation. There is no evidence to indicate that the school’s investigators ignored relevant information put forward by C or failed to make reasonable inquiries in relation to the incident. Nor does the evidence support a finding that the conclusion reached by the school was unsustainable.

143 We understand Mrs S to argue that the School’s refusal to suspend the two boys, despite her husband’s protests, represents further evidence of the School’s inertia in dealing with C’s harassment. In our view the decision not to suspend the two, cannot be seen as tolerating the harassment of C, but the logical outcome given the school’s conclusions as to the part the boys played in the incident, a conclusion not shared by Mr S.

144 It is not in dispute that C was teased and harassed by some students throughout much of her time at School 1. The evidence suggests that one of the reasons C may have been targeted for harassment was that she was different. She wore a device to assist her hearing and she was often absent for school for medical reasons. No doubt the taunting greatly affected C’s enjoyment of her school experience and caused her a great deal of pain, as it would any child.

145 The evidence shows that in primary school C reported this teasing to Mr McK who raised this with Principal C. The offending students were interviewed. The principal lectured a general school assembly and class assemblies, emphasising that harassment of fellow students was unacceptable and the perpetrators would be disciplined. The Tribunal accepts Mr McK’s evidence that he met with C and assisted her with strategies to deal with the teasing. The evidence shows that other teachers, such as Mr P, also took steps to stop the taunts.

146 C’s evidence was that the teasing was relentless. In contrast, the evidence of Principal C was that it abated for a period of about twelve months (after the school assembly lectures). No doubt to the victim of painful taunts the experience seems endless.

147 It is understandable that C and her parents were frustrated and upset by the continuation of the taunts. It is also understandable that they may have held the view, as expressed by Mr S in his evidence to the Tribunal, that (with the exception of Mr McK) the school failed to take appropriate and decisive action. After all, Mr and Mrs S were of the view that the school and its staff were in a position to temper the excesses of C’s tormentors.

148 However, the evidence does not support a finding that the school failed to act or turned a blind eye to C’s treatment. It may be that there were other, more appropriate options available to the school that would have assisted the situation. But the evidence does not support a finding that School 1 failed to act or made a half-hearted attempt to deal with the problem.

149 Accordingly we are not persuaded that School 1’s actions could be said to indicate that it imposed a condition of enrolment that C endure harassment from her peers.

Harassment –Direct Discrimination

150 The complaint of harassment could also be characterised as constituting direct discrimination. To succeed on this basis the applicant would need to establish that School 1 failed to take action to prevent peer harassment of C and in doing so treated her less favourably than a student without her disability, in circumstances not materially different. The applicant would also need to show that such differential treatment was on the grounds of C’s disability. It is unnecessary to consider this head of complaint in detail as, as outlined above, we are not persuaded that the evidence establishes that School 1 failed to act, as alleged.

151 It is also claimed that School 1 failed to take appropriate action in dealing with incidents of harassment involving M. In support of this claim the applicant refers primarily to the balcony incident.

152 The evidence in relation to the balcony incident shows that the school took immediate action to investigate the incident. From this investigation it was concluded that student Jones threatened to throw M over the balcony but had not physically attempted to do so. Jones was suspended for two days.

153 We understand Mrs S to argue that the school was cavalier in dealing with the seriousness of this incident, as demonstrated by the light punishment afforded to M’s attackers. It is entirely understandable that M’s parents were gravely concerned. However, there is nothing in either the school’s practice or formal policy that would indicate that the punishment afforded the offender was uncharacteristically light.

154 We are not persuaded on the evidence presented that School 1 failed to act or took ineffectual action when confronted with an incident where M had been attacked and harassed by other students. Accordingly this claim is dismissed.

Enrolment at School 2

155 We understand the applicants to argue that School 2’s decision not to accept M’s 1997 enrolment application represents direct discrimination contrary to the provisions of s 49 (L)(1)(a) of the Act.

156 There is limited evidence before the Tribunal on this part of the complaint. By letter, dated December 12 1997, the principal of School 2 outlined the reason for the rejection of M’s enrolment “there is insufficient evidence that M has not learned the appropriate skills to manage this [violent] behaviour.”

157 In submissions, Mrs S challenges School 2’s assessment and asserts that a number of incidents referred to in the December 12 letter had simply not occurred. No evidence is before the Tribunal to assist us in determining whether this was the case. But even if Mrs S’s contention is correct, the evidence makes clear that C did have a history of some violent behaviour throughout the relevant period.

158 The direct evidence before us indicates M’s enrolment was rejected because of her record of inappropriate behaviour, involving violence. It is not in issue that the respondent grants schools discretion to refuse enrolment where the student has a history of violent behaviour. There is no evidence before us to support a finding that School 2 has not, or would not, exercise its discretion to reject an enrolment application from a student with a comparable behavioural record, to M who did not suffer from ADD.

159 We are not satisfied that the evidence establishes that School 2, in refusing M’s enrolment, has subjected her to less favourable treatment than a student without ADHD. Accordingly this head of the claim is dismissed.

Victimisation

160 Mrs S asserts that Principal C in applying for an AVO against her husband acted contrary to the provisions of s 50 of the Act. Section 50 provides:

161 In Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808, the former Equal Opportunity Tribunal set out at p 78,986, the four elements required to make out a complaint of victimisation.

“The elements of victimisation can be described as a four-fold requirement. Firstly, the respondent must have caused the applicant to undergo or experience something. Secondly, the applicant must have suffered some consequential detriment in any circumstances. Thirdly, that detriment must have occurred on one of the grounds set out in sub-paragraph (a) to (d) of Section 50(1). Fourthly, it must appear that the applicant did one of the things referred to in sub-paragraphs (a) to (d). Under sub-section (2) the respondent has a complete answer to the claim if it is shown the allegation of discrimination was not made in good faith.”

162 This Tribunal has consistently followed this approach. See for example Lal v President, Anti-Discrimination Board of New South Wales [2000] NSWADT 68 at 41 and Crewdson -v- President, Anti-Discrimination Board of New South Wales [2000] NSWADT 60 at 45.

163 Mrs S contends that Principal C decided to take out the AVO as he was aware of the family’s intention to institute legal proceedings under the Act. Ms Winters, for the respondent, argues that this contention is unsustainable. An interim AVO was granted on April 22 1997 and the President of the Board did not contact the Director- General of the Department in relation to the complaint until 24 November 1997. She further argues that, in any event, neither Mr S nor the applicants suffered any detriment, as the terms of the AVO did not prevent the collection of M and C from school.

164 It is clear from the evidence that Principal C applied for the AVO some time before being formally advised that proceedings under the Act were to be initiated. However, to fall within s50(1), it is enough that the discriminator suspects that the person victimised has done, or intends to do, any of the things set out in ss50(1) (a) –(d). There is some evidence to suggest that Principal C was aware that Mr and Mrs S intended to lodge a complaint or suspected this to be the case. (See, for example, the letter dated 26 March 1996 from Principal C to the Department’s District Superintendent).

165 However while Principal C may have suspected that Mr and Mrs S were considering lodging a complaint with the Board, we are not persuaded that this was the trigger or linked to his decision to apply for an AVO. We accept the respondent’s evidence that Mr S threatened Principal C in the early part of 1997 and on various other occasions throughout the relevant period. It is clear from the evidence that these threats increased in both intensity and frequency in the early of 1997.

166 Section 4A of the Act does not apply to behaviour alleged to fall within s 50. That is, in relation to this case, it would not be enough to prove that one of a number of reasons, not necessarily the dominant or substantial one, for Principal C’s decision to take out an AVO, was an alleged desire to retaliate against Mr and Mrs S for initiating proceedings under the Act. But in any event, we have been provided with no evidence which would allow us to reach a conclusion that the AVO decision and the lodgement of the complaint to the Board were related. We accept Principal C’s explanation that the situation with Mr S was becoming increasingly difficult; his patience had been tried; he had “had enough”.

167 Accordingly, this head of claim is dismissed.

ORDERS

1. That the complaint be dismissed.

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Citations

S on behalf of M and C v Director General, Department of Education and Training [2001] NSWADT 43

Cases Citing This Decision

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Cases Cited

6

Statutory Material Cited

2

Briginshaw v Briginshaw [1938] HCA 34

Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44

Lal v President, Anti-Discrimination Board of New South Wales [2000] NSWADT 68

CITATION:	S on behalf of M & C -v- Director General, Department of Education & Training [2001] NSWADT 43
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Mrs S on behalf of C & M RESPONDENT Director General, Department of Education & Training
FILE NUMBER:	50 of 1998
HEARING DATES:	03/04/2000 04/04/2000 05/04/2000
SUBMISSIONS CLOSED:	08/31/2000
DATE OF DECISION:	03/21/2001
BEFORE:	Britton A - Judicial Member; McDonald O - Member; Mooney L - Member
APPLICATION:	Disability Discrimination - Education
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR at 361-362 Fenwick v Beveridge Building Products Pty Ltd (1986) EOC 92-147 Department of Health v Arumugam (1987) EOC 92-195 Hafez -v- Warilla Women's Refuge Ltd, Clegg and McEwan [3 of 1993 & 40 of 1995] NSWEOT Commonwealth Bank v Human Rights and Equal Opportunity Commission (1998) 150 ALR 1 Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 Lal v President, Anti-Discrimination Board of New South Wales [2000] NSWADT 68 Crewdson -v- President, Anti-Discrimination Board of New South Wales [2000] NSWADT 60
REPRESENTATION:	APPLICANT In person RESPONDENT S Winters, barrister
ORDERS:	1. The complaint is dismissed