State of Victoria v Turner
[2009] VSC 66
•4 March 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION No. 5024 of 2008
| STATE OF VICTORIA | Appellant |
| v | |
| REBEKAH TURNER (BY HER NEXT FRIEND, ANJA TURNER) | Respondent |
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JUDGE: | Kyrou J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9-11 February 2009 | |
DATE OF JUDGMENT: | 4 March 2009 | |
CASE MAY BE CITED AS: | Victoria v Turner | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 66 | |
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Victorian Civil andAdministrative Tribunal Act 1998 – appeal under s 148.
Equal Opportunity Act 1995, ss 9, 37 – complaint alleging indirect impairment discrimination – whether Tribunal impermissibly reformulated the condition imposed by the State for access to education – whether reformulation breached rules of natural justice – whether Tribunal impermissibly extended the period within which discrimination occurred – whether the condition imposed was unreasonable – applicable principles – effect of government policy or program – whether Tribunal failed to take into account relevant considerations.
Remedies under s 136, Equal Opportunity Act – applicable principles – whether order for provision of full-time teacher’s aide within power – whether monetary compensation awarded for depression within power – whether order for provision of remedial tuition uncertain and involved impermissible delegation to a third party.
Victorian Civil and Administrative Tribunal Act, s 117 – whether reasons given for award of compensation comply with s 117 – whether inadequacy of reasons constitutes error of law.
Charter of Human Rights and Responsibilities Act 2006, ss 8, 32, 49 – whether Court can apply post-Charter principles that did not apply to proceeding before Tribunal.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P Hanks QC with Ms R Doyle | Maddocks |
| For the Respondent | Ms D Mortimer SC with Ms F Gordon | Access Law |
TABLE OF CONTENTS
Introduction and summary.................................................................................................................. 1
Facts....................................................................................................................................................... 2
Ms Turner’s impairments and school history................................................................................ 2
Complaint to Equal Opportunity Commission and referral to Tribunal..................................... 2
Particulars of complaint and State’s defence in Tribunal proceeding.......................................... 3
Hearing before Tribunal and orders made by Tribunal................................................................ 6
Notice of appeal and alleged errors of law.................................................................................... 10
Findings of the Tribunal that are not impugned in the appeal.................................................. 12
Relevant statutory provisions........................................................................................................... 14
Reformulation of alleged discriminatory condition....................................................................... 15
Breach of natural justice in reformulation of alleged discriminatory condition........................ 21
Extension of the period of the claim of discrimination................................................................. 25
Compensation for discrimination in the extended period.......................................................... 29
Breach of natural justice in extension of the period of the claim of discrimination................. 30
Was the alleged discriminatory condition ”not reasonable”?...................................................... 31
Legal principles – “not reasonable” requirement in s 9(1)(c), EO Act....................................... 34
Unreasonableness of “no full-time teacher’s aide” condition..................................................... 39
Reversal of onus............................................................................................................................ 41
Failure to take into account relevant considerations................................................................... 43
Financial considerations and impact on other students............................................................... 43
Program for Students with Disabilities...................................................................................... 48
Impact on Ms Turner................................................................................................................ 58
Order requiring provision of full-time teacher’s aide................................................................... 62
Legal principles – remedies under s 136, EO Act........................................................................ 67
Parties’ submissions....................................................................................................................... 71
Court’s decision............................................................................................................................. 73
Validity of order under s 136(a)(i), EO Act............................................................................... 76
Validity of order under s 136(a)(iii), EO Act............................................................................. 79
Order requiring payment of compensation for depression.......................................................... 82
Absence of causal link between unlawful discrimination and depression................................ 85
“Home based issues” as one of the causes of Ms Turner’s depression....................................... 91
Inadequate reasons for order of compensation for depression................................................... 92
Legal principles – error of law where reasons do not comply with s 117, VCAT Act................. 93
Court’s decision......................................................................................................................... 94
Order requiring provision of remedial tuition............................................................................... 95
Charter of Human Rights and Responsibilities Act.................................................................... 102
Summary of Court’s decision on the questions of law................................................................ 104
Proposed orders................................................................................................................................ 105
HIS HONOUR:
Introduction and summary
This is an appeal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (“VCAT Act”) from an order of the Victorian Civil and Administrative Tribunal (“Tribunal”) to uphold in part the complaint of discrimination in relation to access to education made by Rebekah Turner (“Ms Turner”)[1] against the State of Victoria (“State”) under the Equal Opportunity Act 1995 (Vic) (“EO Act”).
[1]The Tribunal’s reasons refer to Ms Turner as “Becky”.
Ms Turner suffers a brain dysfunction which results in a learning disorder and other impairments. At the time the complaint was made in 2005, she was 13 years of age and attended Sherbrooke Community School.
The complaint alleged that the State, acting through the Department of Education and Early Childhood Development (“Department”), indirectly discriminated against Ms Turner in relation to her access to education by imposing a condition that she access education without a teacher’s aide. Ms Turner alleged that she was unable to comply with this condition, that others without her impairment could comply with it and that it was not reasonable.
The Tribunal found that the State had indirectly discriminated against Ms Turner in relation to a number of subjects taught in various schools operated by the State over a number of years. Although the Tribunal did not find that Ms Turner had been discriminated against in all subjects over all the years covered by the complaint, on 7 February 2008 it ordered, among other remedies, that the State provide a full-time teacher’s aide for Ms Turner for all her Victorian Certificate of Education (“VCE”) subjects in the years 2008 to 2010.
For the reasons set out in this judgment, I have concluded that the Tribunal erred in law in relation to some of the remedies it awarded in favour of Ms Turner (including the full-time teacher’s aide) and in making findings of discrimination which extended beyond the claim period.
For convenience, I have included a glossary of defined terms and abbreviations at the end of this judgment.
Facts
Ms Turner’s impairments and school history
Ms Turner’s brain dysfunction, from time to time, manifests itself in varying symptoms of varying severity. Since 1999, she has had attention deficit hyperactivity symptoms and anxiety features at a sub-clinical level at various times. She had clinical depression in July 2002 and a double depressive disorder in November 2004 which had ceased to be at a clinical level by mid-2006. From at least 2000, she has had a severe language disorder and a severe learning disability. Throughout that period, she has had a severe receptive language disorder and an expressive language disorder. The latter disorder was at first moderate, but by 2005 had become severe. The underlying or primary cause of these disorders and symptoms was her brain dysfunction.
From 1999, Ms Turner attended schools operated by the State. In 1999 and 2000, she attended Kilsyth Primary School in Years 2 and 3. In 2001 and 2002 and for part of 2003 (until September), she attended Kalinda Primary School in Years 4, 5 and 6. In 2003 (from September), 2004 and 2005, she attended Sherbrooke Community School in Years 6, 7 and 8. In 2006 and 2007, she attended Ringwood Secondary College in Years 9 and 10.
Complaint to Equal Opportunity Commission and referral to Tribunal
Ms Turner, through her mother and next friend, Anja Turner, lodged a complaint dated 14 February 2005 with the Equal Opportunity Commission of Victoria, which is now known as the Victorian Equal Opportunity and Human Rights Commission (“Commission”).
The complaint alleged that the State is an educational authority for the purposes of the EO Act, that Ms Turner attended a school operated by the State and had done so since February 1999, that she has an impairment for the purposes of that Act and that the State has indirectly discriminated against her by limiting her access to the education benefits provided by the State. The complaint alleged that the discrimination took the form of the imposition of a condition or requirement that Ms Turner “be educated without an appropriate program of assistance”, which was said to be unreasonable. The remedies sought in the complaint were: compensation; an order requiring the State to provide appropriately advised remedial education tuition; and an order requiring ongoing appropriately advised in-class support for Ms Turner for the balance of her education by the State.
The Commission was not able to resolve the complaint and the complaint was referred to the Tribunal in May 2005.
In July 2005, the State applied to strike out the complaint. That application was unsuccessful, but the Tribunal directed that Ms Turner file amended particulars of complaint. In December 2005, the complaint was struck out with a right of reinstatement because neither Ms Turner nor her representatives appeared at a directions hearing. The complaint was reinstated in January 2006. A second complaint was then lodged with the Commission relating to Ms Turner’s schooling after the lodgement of the first complaint. Ultimately, the parties agreed that the first complaint should be amended to include this additional period and that the second complaint should be withdrawn.
Particulars of complaint and State’s defence in Tribunal proceeding
Ms Turner filed and served second further particulars of complaint dated 22 March 2006 in respect of the consolidated complaint (“Particulars”).
Paragraph 5 of the Particulars listed the schools that Ms Turner attended from 1999 to the date of the Particulars and paragraph 5A stated that Ms Turner “will for the foreseeable future attend a school operated by the [State]”. Paragraph 6 described Ms Turner’s impairments. Paragraph 8 stated that “[t]he consequences of the impairments is that in an educational setting in the absence of a full time teacher’s aide”, Ms Turner sustains “diminished educational outcome”, “diminished classroom participation”, “diminished access to the curriculum” and “exacerbation of [her] depression and anxiety”. Paragraph 8A stated that the State was at all times aware, or ought to have been aware, of Ms Turner’s need “to have a full time teacher’s aide and an appropriately advised and resourced program of assistance”.
Paragraphs 9, 10, 11 and 12 of the Particulars stated:
9The [State] has not ever provided [Ms Turner] with a teacher’s aide or an appropriately advised and resourced program of assistance at any material time and apparently for the foreseeable future will not do either.
…
10The [State] has indirectly discriminated against [Ms Turner], within the terms of section 9 Equal Opportunity Act 1995, in that the [State] has imposed a requirement or condition that [Ms Turner] be educated without a teacher’s aide.
…
11The discrimination is contrary to section 37(2) Equal Opportunity Act 1995 in that the [State] has limited [Ms Turner’s] access to a benefit provided by the [State], being:
(a)access to the curriculum
(b)participation in the class room
(c)educational outcome
12[Ms Turner] claims by way of remedy:
a.Compensation for:
i.humiliation, suffering, anxiety and depression
ii.causing a stress related variant of panic disorder;
iii.Worsening a language disorder;
b.An order requiring the [State] to provide appropriately advised remedial educational tuition for [Ms Turner],
c.An order requiring the [State] to provide a full time adequately trained teacher’s [aide] for the balance of her education by the [State].
It is to be noted that although paragraphs 9 and 10 of the Particulars refer to “a teacher’s aide”, paragraphs 8, 8A and 12 refer to a “full time” teacher’s aide. The significance of this distinction is discussed below under the heading “Reformulation of alleged discrimination condition”.
The State filed and served further amended particulars of defence dated 21 June 2006 (“Defence”).
In the Defence, the State admitted that it was an educational authority and that it operated the schools that Ms Turner attended. The State did not admit that Ms Turner suffered the impairments she alleged and denied the allegations in paragraphs 8 and 8A of the Particulars. In paragraph 9 of the Defence, the State said that during the period 1999 to June 2006, Ms Turner did not meet the eligibility criteria for severe language disorder under the Department’s Program for Students with Disabilities (“PSD”). In paragraph 10 of the Defence, the State made assertions about the additional support and assistance it provided to Ms Turner “to the present date”, namely 21 June 2006. In paragraphs 11 and 12 of the Defence, it made assertions about additional assistance that was being provided to Ms Turner “in 2006”.
Paragraph 13 of the Defence responded as follows to the allegation of discrimination in paragraph 10 of the Particulars:
13 As to paragraph 10:
(a)It says that between 1999 and June 2006, it imposed a requirement that for students with a language disorder to be eligible under the [PSD] students must satisfy criteria for a severe language disorder set out by the Program (“the Program requirement”);
(b)it says that it has imposed a requirement that [Ms Turner] be educated without a full time teacher’s aide (“the teacher’s aide requirement”);
(c)it otherwise denies the allegations therein.
It can be seen from the above that the State defined the requirement relating to a teacher’s aide in terms of the non-provision of a “full time teacher’s aide” and conceded that it imposed such a requirement.
In paragraphs 14 and 15 of the Defence, the State alleged that Ms Turner “does and can” comply with the “Program requirement” and the “teacher’s aide requirement” and that the majority of students without Ms Turner’s impairments can comply with those requirements. In paragraph 16 of the Defence, the State denied that the abovementioned requirements were not reasonable. In paragraphs 17 and 18, the State denied that it had discriminated against Ms Turner and that she is entitled to the relief specified in paragraph 12 of the Particulars or any other relief.
Hearing before Tribunal and orders made by Tribunal
The hearing of the complaint before the Tribunal took place over 28 days and was spread between July and December 2006 due to various logistical reasons. The Tribunal heard evidence from a number of witnesses called by both parties, including expert witnesses. Various documents were also tendered, including Ms Turner’s school reports and a number of medical reports. Some documents were the subject of confidentiality orders before the Tribunal and before me.
On 22 May 2007, the Tribunal published a document headed “Order” (“2007 Order”) which provided as follows:
Pursuant to s 136 of the Equal Opportunity Act 1995 –
1This Tribunal finds the complaint proven in part. It finds that the [State] breached section 37(2)(a) of the Act in that it indirectly discriminated against [Ms Turner] on the basis of her impairment by imposing a requirement or condition that she access her education at Kilsyth Primary School in 2000 in maths and English, at Kalinda Primary School in 2002 and 2003 in maths and English, at Sherbrooke Community School in 2004 and 2005 in maths and connected curriculum and at Ringwood Secondary College from 1 February 2006 to 22 March 2006 inclusive in history, maths, English and science without a full-time teacher’s aide, so limiting her participation in and access to curricula in those classes, and diminishing her opportunity to attain successful educational outcomes in those classes, thereby limiting her access to benefits provided by the [State].
2In all other respects, this complaint is found not proven and is dismissed.
3The issue of remedy will be addressed at a directions hearing to be held at 10.00 am on 9 July 2007 at 55 King Street, Melbourne.
4The parties’ costs are reserved. The parties have liberty to apply on reasonable notice to the Tribunal and to each other.
Also on 22 May 2007, the Tribunal published reasons for the 2007 Order. The reasons dealt with the substantive issue of whether the State had breached the EO Act and accordingly, I will refer to them as the “Substantive Decision”. The Substantive Decision extends over 118 pages and contains a detailed discussion, particularly of the factual issues.
Before the directions hearing to deal with remedies could take place, the State sought leave to appeal to this Court in respect of the 2007 Order. A Master granted leave to appeal but this was subsequently overturned by Warren CJ on the basis that the 2007 Order was not an order within the meaning of s 148 of the VCAT Act but simply a document setting out the Tribunal’s findings.[2] Following the Chief Justice’s decision, the Tribunal convened a directions hearing to deal with remedies.
[2]Victoria v Turner (2007) 17 VR 217.
The directions hearing took place on 17, 19 and 20 December 2007. Both parties presented limited oral and documentary evidence, including expert evidence, at the directions hearing. That evidence was principally directed at how Ms Turner was performing at school and her future education plans.
On 7 February 2008, the Tribunal published a document headed “Findings, Declarations and Orders”. This document was amended by consent on 25 February 2008. The amended document, which I will refer to as the “2008 Order”, provided:
Pursuant to section 136 of the Equal Opportunity Act 1995 (the EO Act) and sections 124 and 130 of the Victorian Civil and Administrative Tribunal Act 1998–
1The Tribunal finds the complaint proven in part as follows. It finds and declares that the [State] contravened section 37(2)(a) of the EO Act in that it indirectly discriminated against [Ms Turner] on the basis of her impairment. It [did] so by imposing a requirement or condition that she access her education at Kilsyth Primary School in 2000 in mathematics and English, at Kalinda Primary School in 2002 and 2003 in mathematics and English, at Sherbrooke Community School in 2004 and 2005 in mathematics and connected curriculum, and at Ringwood Secondary College from 1 February 2006 onwards in history, English, maths and science, without a full-time teacher’s aide. By doing this, it limited her participation, and access to the curriculum, in those classes and diminished her opportunity to obtain successful educational outcomes in those classes.
2The Tribunal orders that, as soon as practicable after the start of the 2008 school year (but no later than the dates set out in sub-paragraphs (a) to (e) below) and until the end of the 2010 school year or the completion of [Ms Turner’s] final examinations (whichever happens sooner) –
(a)the [State], for each school year, develop, produce and implement (under the supervision of a special education teacher and a speech pathologist) an individual learning plan for [Ms Turner]. The individual learning plan for semester 1 2008 in each of [Ms Turner’s] Victorian Certificate of Education (VCE) subjects for 2008 to be taught by Ringwood Secondary College will be developed in draft form by no later than 25 February 2008 and by 28 February 2008 for Auslan to be taught by Forest Hill College. The finalised individual learning plans in all of [Ms Turner’s] VCE subjects for 2008 will be implemented from 6 March 2008 onwards;
(b)the [State] provide a full-time teacher’s aide to [Ms Turner] for all of her VCE classes. The [State] will appoint a teacher’s aide to an ongoing position by 14 March 2008 to provide the assistance set out in this order (Teacher’s Aide). The Teacher’s Aide will commence in the position as soon as possible after the appointment, such commencement to occur no later than 4 weeks after the date of appointment;
(c)from 21 February 2008, the [State] must provide to [Ms Turner] a teacher’s aide from the existing staff at Ringwood Secondary College to provide the assistance set out in this order until such time as the Teacher’s Aide commences in the ongoing position as outlined in paragraph (b) (temporary Teacher’s Aide). The [State] will provide and pay for training for the temporary Teacher’s Aide, such training to be conducted and supervised by a special education teacher and a speech pathologist and to commence on or before 29 February 2008;
(d)the [State] provide and pay for all necessary training for the Teacher’s Aide, such training to be conducted and supervised by a special education teacher and a speech pathologist. This training is to commence within 2 days after the commencement of the Teacher’s Aide in the ongoing position in accordance with order 2(b) above;
(e)the [State] provide remedial tuition for [Ms Turner] through the delivery of such of the programs set out in the report of Professor Kerry Hempenstall (exhibit RB) as Professor Hempenstall from time to time recommends to be undertaken by [Ms Turner], such delivery to occur at school. The Teacher’s Aide will commence training in the delivery of the programs within 10 days after the commencement of the Teacher’s Aide in the ongoing position in accordance with order 2(b) above. Delivery of the programs to [Ms Turner] in accordance with Professor Hempenstall’s recommendations will commence no later than 7 April 2008.
3The Tribunal orders that, to assist Professor Hempenstall in making recommendations under paragraph 2, the [State] must, at the start of each school year and (at any other time when Professor Hempenstall requests such information) provide to Professor Hempenstall information about [Ms Turner’s] school subjects, school timetable, and educational commitments (including homework commitments).
4By 22 February 2008 and until further order of this Tribunal or a Court, the [State] must:
(a)pay into an interest-bearing trust account established by the [State] for the benefit of Rebekah Turner $82,000 as compensation for the loss, damage or injury suffered by her in consequence of the contravention of the EO Act mentioned in paragraph 1; and
(b)maintain that account.
5The Tribunal orders that in all other respects [Ms Turner’s] application under section 136 of the EO Act is dismissed.
6In all other respects the Tribunal finds the complaint not proven and orders that in those respects it is dismissed.
7The parties’ costs of and incidental to this proceeding are reserved. The parties may apply for those costs (and for other costs already reserved) on reasonable notice to the Tribunal and each other.
8The parties have liberty to apply, including liberty to apply to have any of these orders varied or revoked or to make further provision concerning anything mentioned in these orders.
Also on 7 February 2008, the Tribunal published reasons for the 2008 Order. The reasons extend over 33 pages. I will refer to them as the “Remedy Decision”.
It is to be noted that although the 2007 Order stated that the Tribunal found discrimination in the years 2000, 2002, 2003, 2004, 2005 and “from 1 February 2006 to 22 March 2006” in various subjects, the 2008 Order stated that the Tribunal found discrimination in the years 2000, 2002, 2003, 2004, 2005 and “from 1 February 2006 onwards” in various subjects. The significance of this distinction is discussed below under the heading “Extension of the period of the claim of discrimination”.
The Tribunal’s findings in relation to discrimination are summarised in the table below which is based on a table that was prepared by the State and agreed to by Ms Turner for the purposes of the appeal:
Year
School
Subjects studiedSubjects for which Tribunal found discrimination 1999, Year 2 Kilsyth Primary School English, Integrated Studies, Maths, PE, Art, Music, Indonesian No findings of discrimination 2000, Year 3 Kilsyth Primary School English, Maths, Integrated Studies Maths, English 2001, Year 4 Kalinda Primary School English, Maths, Integrated Studies, Computer Studies, Visual Arts, PE, Music, Japanese No findings of discrimination 2002, Year 5 Kalinda Primary School English, Maths, Integrated Studies, Art, PE, Computer Studies, Music, Japanese Maths, English 2003, Year 6 Kalinda Primary School English, Maths, Integrated Studies, Art, PE, Computer Studies, Music, Japanese Maths, English 2004, Year 7 Sherbrooke Community School Maths, Connected Curriculum, Graphic Communication, Science, Creative Writing Maths, Connected Curriculum (Literacy, English, Science, Health and Information Technology) 2005, Year 8 Sherbrooke Community School Maths, Connected Curriculum, Craft, Woodcraft, Art, Music, Acrobatics, Psychology, Media, Food Nutrition, Health Maths, Connected Curriculum (Literacy, English, Science, Health and Information Technology) 2006, Year 9 (Semester 1) Ringwood Secondary College History/Curriculum Support, English, Maths, Science, Geography, Art, Visual Communication, PE For period 1/2/2006-22/3/2006: History, Maths, English and Science 2006, Year 9 (Semester 2) Ringwood Secondary College History/Curriculum Support, English, Special Maths, Science, Geography History, Maths, English and Science 2007, Year 10 Ringwood Secondary College English, General Maths, Science, History, Technology – Textiles History, Maths, English and Science
The State sought leave to appeal against the 2008 Order. Leave was granted on 25 June 2008 on condition that the State pay Ms Turner’s reasonable costs of the appeal.
Notice of appeal and alleged errors of law
In its notice of appeal dated 8 July 2008, the State sets out 17 questions of law in respect of which it alleges the Tribunal fell into error. In broad terms, the questions of law deal with the following issues:
(a)Did the Tribunal impermissibly reformulate the alleged discriminatory condition from a condition that a full-time teacher’s aide will not be provided for all subjects, to a condition that a full-time teacher’s aide will not be provided for some subjects?
(b)Did the Tribunal breach the rules of natural justice in reformulating the alleged discriminatory condition?
(c)Did the Tribunal impermissibly extend the period of the claim of discrimination beyond 22 March 2006, and did it impermissibly award compensation in respect of the extended period?
(d)Did the Tribunal breach the rules of natural justice in impermissibly extending the period of the claim of discrimination?
(e)Was the alleged discriminatory condition not reasonable? Did the Tribunal reverse the onus of proof in determining this issue? Did the Tribunal fail to take into account relevant considerations (such as financial considerations, the PSD and the impact on Ms Turner and other students in providing Ms Turner with a full-time teacher’s aide) in determining this issue?
(f)Was the order for the provision of a full-time teacher’s aide for all of Ms Turner’s VCE subjects in 2008 to 2010 authorised by s 136 of the EO Act?
(g)Was the award of compensation of $20,000 for Ms Turner’s depression in 2002 and 2004 within the Tribunal’s power and did the Tribunal fail to properly apply causation principles in relation to, and provide adequate reasons for, its decision to award this amount?
(h)Was the order requiring the provision of remedial tuition uncertain and did it involve an impermissible delegation to a third party?
The notice of appeal does not raise for consideration by this Court whether the orders made by the Tribunal involve any impermissible “double dipping” resulting from multiple remedies being awarded to Ms Turner for the same contravention of the EO Act or the same loss under the different “limbs” of s 136(a) of the EO Act, which is set out in paragraph 44 of this judgment.
Each of the 17 questions of law will be discussed below under an appropriate heading. As a number of the questions of law overlap, some of them will be dealt with collectively under a single heading. However, the full text of each question will be set out below whether it is dealt with on its own or in conjunction with other questions.
Before me, Ms Turner relied on the Charter of Human Rights and Responsibilities Act 2006 (Vic) (“Charter”) in relation to the interpretation of s 136 of the EO Act. Notice was given to the Commission in accordance with s 35 of the Charter. The Commission notified the Court that it would not intervene in the proceeding. I discuss the Charter below under the heading “Charter of Human Rights and Responsibilities Act”.
Findings of the Tribunal that are not impugned in the appeal
While the State submitted in the appeal that the Tribunal erred in its findings of discrimination and that the 2008 Order should be quashed, the State did not specifically seek to impugn the following findings of the Tribunal:
(a)the Tribunal’s finding that Ms Turner suffered the impairments set out in paragraph 7 of this judgment;
(b)the Tribunal’s findings that Ms Turner was not able to comply with the condition that she access the State’s education benefits without a teacher’s aide in the subjects set out in the fourth column of the table in paragraph 30 of this judgment; and
(c)the Tribunal’s assessment of compensation of $10,000 per year for the discrimination the Tribunal found had taken place in 2000, 2002, 2003, 2004 and 2005.
In relation to the impairments suffered by Ms Turner, in paragraphs 91 to 93 of the Substantive Decision, the Tribunal found that Ms Turner’s language disorder, learning disability and double depressive disorder are all impairments within the meaning of s 4 of the EO Act, which resulted in Ms Turner learning more slowly than people without those impairments. The Tribunal held that a feature of Ms Turner’s severe language disorder and learning disability is an impaired ability to hold in mind and process information which is complex, or which is communicated to her in large chunks, or which is communicated to her without repetition or additional explanation. It also held that a feature of these impairments is an impaired ability to find the words Ms Turner wants to express herself and that a feature of Ms Turner’s depression is an impaired ability to concentrate and stay on‑task. The Tribunal also held that there is nothing in the evidence to suggest that it is possible to predict when the abovementioned difficulties (such as the need for information to be repeated or clarified) will arise.
During the proceeding before the Tribunal, the State conceded that a higher proportion of Ms Turner’s peers without her impairments could comply with the condition that they access the State’s education benefits without a teacher’s aide.
Throughout the Substantive Decision, the Tribunal consistently found that Ms Turner’s lack of educational progress compared to her peers without her impairments was partly due to the lack of additional assistance (such as one on one assistance) provided to her at the various schools and in part due to her language and learning disorders (irrespective of whether or what additional assistance was provided). The Tribunal held that each factor contributed substantially to Ms Turner’s lack of educational progress.
The Tribunal used the composite expression “condition or requirement” to describe the non-provision of a teacher’s aide without deciding if it was one or the other. In this judgment, I will use the expression “condition” to encompass both terms.
Relevant statutory provisions
Ms Turner’s complaint alleged a contravention of s 37(2)(a) of the EO Act. Section 37(2)(a) provides that an educational authority must not discriminate against a student “by denying or limiting access to any benefit provided by the authority”. It was common ground before the Tribunal and before me that the State is an educational authority within the meaning of s 37(2).
In order to succeed in a claim of discrimination under the EO Act, a complainant must make out a claim of either direct or indirect discrimination on the basis of an attribute.[3] It was common ground before me that Ms Turner’s impairments were an attribute for the purposes of the EO Act and that her complaint was in respect of indirect, rather than direct, discrimination.
[3]EO Act, s 7(1).
Section 9 of the EO Act sets out when indirect discrimination takes place. It provides:
9 Indirect discrimination
(1)Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice—
(a)that someone with an attribute does not or cannot comply with; and
(b)that a higher proportion of people without that attribute, or with a different attribute, do or can comply with; and
(c)that is not reasonable.
(2)Whether a requirement, condition or practice is reasonable depends on all the relevant circumstances of the case, including—
(a)the consequences of failing to comply with the requirement, condition or practice;
(b)the cost of alternative requirements, conditions or practices;
(c)the financial circumstances of the person imposing, or proposing to impose, the requirement, condition or practice.
(3)In determining whether a person indirectly discriminates it is irrelevant whether or not that person is aware of the discrimination.
Section 136 of the EO Act sets out the orders that the Tribunal may make in respect of a complaint of discrimination under that Act. It provides:
136 What may the Tribunal decide?
After hearing the evidence and representations that the parties to a complaint desire to adduce or make, the Tribunal may—
(a)find the complaint or any part of it proven and make any one or more of the following orders—
(i)an order that the respondent refrain from committing any further contravention of this Act in relation to the complainant;
(ii)an order that the respondent pay to the complainant within a specified period an amount the Tribunal thinks fit to compensate the complainant for loss, damage or injury suffered in consequence of the contravention;
(iii)an order that the respondent do anything specified in the order with a view to redressing any loss, damage or injury suffered by the complainant as a result of the contravention; or
(b)find the complaint or any part of it proven but decline to take any further action in the matter; or
(c)find the complaint or any part of it not proven and make an order that the complaint or part be dismissed.
Reformulation of alleged discriminatory condition
The first question of law set out in the State’s notice of appeal is as follows:
3.1Was it open to the Tribunal, given the Tribunal’s findings in paragraph 1 of its decision given on 22 May 2007 (the Substantive Decision) and in order 1 made on 7 February 2008 that, in 2000, 2002, 2003, 2004 and 2005, and from 1 February 2006 onwards, the Respondent required a teacher’s aide only in some, but not all, of her school subjects, to find that the Respondent was unable to comply with the requirement or condition imposed by the Appellant that the Respondent access her education without a full-time teacher’s aide?
The Tribunal said the following in the Substantive Decision:
570[T]his part of the criteria [in s 9 of the EO Act] looks at whether Becky can or did comply with the requirement or condition in a similar way, or to the same extent, or whether she was at a serious disadvantage in respect of compliance, compared with that of the higher proportion of people without her impairment. Compliance must be looked at in all the circumstances, including what and how much educational assistance Becky was given. The question is not (as the State would have it) could Becky access her education with some amount of assistance less than a full-time teacher’s aide? That question asks me to speculate about how much more assistance might have been adequate or reasonable for Becky. The question is, in the actual circumstances, could or did Becky comply with the requirement or condition?
571In those circumstances where I have found that Becky was not given adequate or reasonable assistance to meet her educational needs, I am satisfied that she could not or did not comply with the State’s requirement or condition in a similar way to, to a similar extent as, or without serious disadvantage compared with, her unimpaired peers. Her severe language disorder made her unable to comply with that requirement or condition in this way.
…
585[T]he fact that I have not found the complaint proven in respect of all the claim period or in respect of every subject undertaken by Becky at every school does not affect my conclusions about Becky’s failure to comply with the requirement or its lack of reasonableness. In my view, I do not need to find that, in every circumstance, Becky needed a full-time aide and did not get one, to found a conclusion that she could not comply with the requirement or condition or that the requirement or condition was not reasonable. The fact that I have found that, in respect of some schools and some subjects and at some times, indirect discrimination occurred, and that at others the Complainant has not proved that it did, simply means that the complaint is proven in part.
586… I am satisfied that, at the times when I have earlier found that the educational assistance provided to Becky was not adequate or reasonable, each of the schools concerned knew about her severe language disorder. I find that class participation, access to the educational curriculum, and (generally) the opportunity to achieve educational potential, are benefits provided by the State. I speak of the opportunity to reach that potential, not the achievement of that potential. No educational authority can guarantee that a child will achieve his or her educational potential. I find that, by imposing the requirement or condition which it did, the State indirectly discriminated against Becky (in the circumstances indicated in my findings) by limiting her access to these benefits in breach of s37(2)(a) of the EO Act.
Mr Hanks QC, who appeared with Ms Doyle for the State before me, submitted that the expression “full-time teacher’s aide” in the formulation of the condition that Ms Turner relied on in her case before the Tribunal meant that she must access the State’s education benefits without a teacher’s aide present and assisting her at all times in all her subjects. He submitted that, as the Tribunal found that Ms Turner was able to comply with that condition in respect of some of her subjects, the Tribunal should have dismissed the complaint. He submitted that the Tribunal in its Substantive Decision reformulated the condition as one requiring Ms Turner to access the State’s education benefits without a teacher’s aide for some subjects only and that this was impermissible because the condition relied on by Ms Turner was not divisible. He submitted that the Tribunal wrongly characterised the condition that was the subject of Ms Turner’s complaint and thereby failed to answer the question posed for its determination – whether Ms Turner could comply with the condition that she access her education without a full-time teacher’s aide. He submitted that the Tribunal made a finding that was not open to it, namely that Ms Turner could not comply with the condition that was the subject of Ms Turner’s complaint.
In support of his submission, Mr Hanks relied on paragraphs 8, 8A and 12 of the Particulars (see paragraphs 14 and 15 of this judgment), and paragraph 13 of the Defence (see paragraph 19 of this judgment), which referred to the condition as the non-provision of a full-time teacher’s aide. Mr Hanks also relied on the manner in which the parties conducted the hearing before the Tribunal (including the calling of evidence and the making of submissions), namely on the basis that the condition was the non-provision of a full-time teacher’s aide. He referred me to various statements made by James Gray of counsel who appeared for Ms Turner before the Tribunal (but not before me) to the effect that the condition was the non-provision of a full-time teacher’s aide. For example, in closing submissions, Mr Gray stated: “The case has been fought the whole way along on the basis that in every subject my client needs additional extra assistance available on a full-time basis; that is available as the need arises throughout the class”.
Mr Hanks noted that Ms Turner never advanced an alternative case that she required a part-time teacher’s aide, namely an aide in only some of her subjects, and no application to amend the complaint to allege an alternative claim pertaining to a part-time teacher’s aide was made. He submitted that, rather than confining itself to the condition pleaded by Ms Turner, the Tribunal made a finding that she could not comply with an alternative condition, namely that she access her education without a part-time teacher’s aide or in the absence of an aide in particular subjects.
Ms Mortimer SC, who appeared with Ms Gordon for Ms Turner before me, submitted that the first question of law was an unmeritorious technical pleading point. She submitted that the Tribunal had not reformulated the condition and that there was no departure by the Tribunal from the way the case was put by the complainant. She submitted that the original complaint did not refer to a full-time teacher’s aide and neither did the key paragraph of the Particulars alleging discrimination, namely paragraph 10 (see paragraph 15 of this judgment). She submitted that the parties and the Tribunal proceeded on the basis that the State was unwilling to provide a teacher’s aide for any of Ms Turner’s subjects and therefore, as the Tribunal found that Ms Turner was unable to comply with this condition in respect of some of her subjects, the Tribunal was entitled to find under s 136 of the EO Act that the complaint had been proven in part.
Ms Mortimer submitted that neither party before the Tribunal sought to define with precision what was meant by “full-time”. She submitted that this expression was used in at least three senses by the parties and the Tribunal: first, to refer to the time devoted to Ms Turner, in contrast to other students in a given class; second, to refer to all of the classes in a given subject; and third, to refer to all of Ms Turner’s class time at school. She submitted that sometimes the expression “full-time” was used to mean no more than “one to one”. She submitted that, to the extent it makes any relevant difference, the expression should be understood in the sense of full-time in each particular subject. She submitted that neither Ms Turner nor the State used the expression “full-time” exclusively in the sense of “at all times and in all school classes” and therefore the assumption underlying the first error of law alleged by the State is wrong.
Ms Mortimer submitted that even if the expression “full-time” was understood as meaning “at all times and in all school classes”, that represented Ms Turner’s case at its highest, and that ss 37(2)(a), 9(1) and 136 of the EO Act enabled the Tribunal to find that Ms Turner had proven her case in part only, that is, that there had been discrimination in respect of some of her classes in some years. She submitted that these provisions do not require an “all or nothing” approach.
While the words “requirement, condition or practice” in s 9(1) of the EO Act are construed broadly, the condition relied upon by a complainant must be formulated with some precision.[4]
[4]Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165, 185, 195-6; Waters v Public Transport Corporation (1991) 173 CLR 349, 393, 406 (“Waters”); Victoria v Bacon [1998] 4 VR 269, 279 (“Bacon”); Catholic Education Office v Clarke (2004) 138 FCR 121, 143 [103] (“Clarke”).
The complaint, as originally referred to the Tribunal, did not refer to a condition that Ms Turner access education without a full-time teacher’s aide. The key paragraph in the Particulars, paragraph 10, referred to a teacher’s aide rather than a full-time teacher’s aide. While paragraphs 8, 8A and 12 of the Particulars referred to a full-time teacher’s aide, a fair reading of the Particulars indicates that the expressions “teacher’s aide” and “full-time teacher’s aide” were being used interchangeably.
On the other hand, the Defence unequivocally defined the condition in terms of a full-time teacher’s aide. The case before the Tribunal was also conducted on the basis that the condition was in terms of a full-time teacher’s aide. This is confirmed by the manner in which the evidence was presented by the parties, the submissions made by the parties and the Substantive Decision. For example, paragraphs 19, 447 and 500 of the Substantive Decision refer to the condition in terms that Ms Turner “access her education without a full-time teacher’s aide” and paragraphs 16 and 569 state that the State conceded that it imposed on Ms Turner a requirement or condition that “she access [her] education without a full-time teacher’s aide”.
There was discussion before the Tribunal as to whether the condition was “unsliceable”. Ultimately, the Tribunal found that Ms Turner could not comply with a condition that she not have the assistance of a teacher’s aide in relation to some but not all subjects. On the basis of this finding, the Tribunal held that the complaint was proven in part.
The Tribunal is not a court. Section 97 of the VCAT Act requires the Tribunal to act fairly and according to the substantial merits of the case in all proceedings. Section 98(1)(d) requires the Tribunal to conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of the VCAT Act and the enabling enactment (in this case, the EO Act) and a proper consideration of the matters before it permit. While the Tribunal often orders parties to provide particulars of claims before the Tribunal so that the parties and the Tribunal are aware of the parties’ cases, and in order to ensure the rules of natural justice are complied with, pleadings are not a feature of proceedings before the Tribunal. Section 98(1)(b) of the VCAT Act makes it clear that pleading rules do not apply to the Tribunal unless it chooses to adopt them. Determination of claims on their merits is a key feature of proceedings before the Tribunal and it would undermine this key feature if a party with a good claim on the merits were to fail before the Tribunal on the basis of a technical “pleading” point where there is no breach of the rules of natural justice.
It is obviously desirable that a complainant be held to the manner in which they define their complaint and conduct their proceeding before the Tribunal. Clearly, a complainant should not be permitted to deviate from their complaint if the deviation would cause the Tribunal to exceed its jurisdiction, result in a breach of the rules of natural justice or cause the Tribunal to commit some other error of law. Where, however, the issues before the Tribunal are well understood by the parties and the Tribunal, a dismissal of the complaint on the basis of the label that the complainant used to describe the complaint or a feature of the complaint should be avoided unless this is mandated by law.
In this case, the fact that the case before the Tribunal was conducted on the basis that the condition was that Ms Turner access education without a full-time teacher’s aide did not mean that if Ms Turner was able to comply with the condition in respect of some subjects, her complaint had to fail in its entirety. The substance of the issue before the Tribunal was whether Ms Turner could access the State’s education benefits without the assistance of a full-time teacher’s aide. The Tribunal found that she could access some of the education benefits (that is, in respect of some subjects) without a full-time teacher’s aide but not others. This finding enabled the Tribunal to conclude that the complaint was made out in respect of some benefits and that, therefore, it was made out in part.
It was open to the Tribunal to interpret the condition of a full-time teacher’s aide as applying to all subjects or to some subjects and to find that Ms Turner was able to comply with the condition in respect of some subjects but not others. In doing so, the Tribunal did not reformulate the condition, as submitted by Mr Hanks. Rather, it applied the condition to the education benefits provided by the State, through particular teachers teaching particular subjects in particular schools, and found that Ms Turner was able to comply with the condition in respect of some of the benefits but not others.
The inappropriateness of the inflexible and technical approach urged by Mr Hanks on the basis of the notion of the “indivisibility” of the condition can be illustrated by a hypothetical situation. If Ms Turner was not able to comply with the condition in respect of all except one of her subjects for the entire period 1 February 1999 to 22 March 2006, on Mr Hanks’ analysis, the Tribunal would have been required to dismiss Ms Turner’s complaint even though, in substance, the imposition of the condition deprived Ms Turner of equal access to the State’s education benefits for over seven years.
For the above reasons, I find that the Tribunal did not err in relation to the first question of law.
Breach of natural justice in reformulation of alleged discriminatory condition
The second question of law set out in the State’s notice of appeal is as follows:
3.2By finding, in paragraph 1 of the Substantive Decision and order 1 made on 7 February 2008, that the Appellant discriminated against the Respondent by imposing a requirement or condition that the Respondent access her education in some, but not all, of her school subjects without a full-time teacher’s aide, did the Tribunal deny the Appellant procedural fairness by proceeding on the basis that the requirement or condition imposed by the Appellant was different from the requirement or condition that, throughout the proceedings before the Tribunal, the Respondent alleged, and the Appellant accepted, had been imposed, thereby denying the Appellant any opportunity to meet that case?
Mr Hanks submitted that the Tribunal breached the rules of natural justice by reformulating the condition in the Substantive Decision and finding that the State had discriminated against Ms Turner by failing to provide her with a full-time teacher’s aide in some of her subjects for some of the time without giving the State an opportunity to meet that alternative case. He submitted that the Tribunal had determined the case on a basis that was different from the basis on which the case had been conducted by the parties during the lengthy hearing and that this constituted a breach of the rules of natural justice.[5]
[5]Fletcher v Commissioner of Taxation (1988) 19 FCR 442, 455-7; Repatriation Commission v McLean (1998) 27 AAR 136, 141; Luck v Renton [2005] VSCA 210, [17].
As I have found in paragraph 60 of this judgment that the Tribunal did not reformulate the condition, I reject Mr Hanks’ submission.
Even if the Tribunal had reformulated the condition, I would not have been satisfied that it had breached the rules of natural justice. The proceeding before the Tribunal was conducted on the basis of examining Ms Turner’s access to the State’s education benefits subject by subject, school by school. Evidence was called about the teachers who taught the relevant subjects, how the subjects were taught, whether any additional assistance was provided to Ms Turner and how Ms Turner performed in those subjects.[6]
[6]Some subjects were not considered in detail by the Tribunal. The Tribunal did not making findings adverse to the State in respect of those subjects.
In his written submissions before me, Mr Hanks stated that if the State had been given an opportunity to meet the reformulated condition, it would have focused its case on the alternative condition by, for example, requiring Ms Turner to particularise her complaint so as to identify the support that she alleged was required for her to access her education, questioning the various witnesses on that basis and calling the teacher’s aides who were present in Ms Turner’s classes at Sherbrooke Community School. He submitted that the State was denied the opportunity to adduce evidence from its witnesses which was capable of addressing an alternative claim of discrimination, such as, for example, the absence of a teacher’s aide in 75 percent of all classes, or in Ms Turner’s English classes or for 75 percent of all Maths and Science classes, or in half of each Maths class. He submitted that multiple variations of the provision of aide time could have been explored in evidence, depending on what variations were raised by Ms Turner.
In argument, I asked Mr Hanks to identify how the State would have presented its case differently before the Tribunal if the condition had been expressed in terms of accessing education benefits without the assistance of a teacher’s aide in some of the subjects studied by Ms Turner. In response, Mr Hanks (who had also appeared for the State before the Tribunal) said that the State may have sought further and better particulars so that specific subjects and periods of time and proportions of class time were identified. He also said that the State may have conducted cross-examination differently, or called additional evidence of experts or teachers, and that the State’s submissions may have been formulated differently. Mr Hanks stated that whether such things would have been done differently would have depended on how the condition was expressed.
Ms Mortimer submitted that the State’s case before the Tribunal was that Ms Turner did not require one to one, full-time assistance in any of her subjects and that, having defended the case on the basis that Ms Turner was adequately accessing an education in all her classes in all the years of her primary and secondary schooling with the “no teacher’s aide” condition, the State necessarily met a case that Ms Turner could not comply with that condition in only some of her classes and/or in some of the years of her schooling. She submitted that, as the greater included the lesser, the State was not deprived of the opportunity of presenting its case in respect of each subject as well as in respect of all subjects.
Ms Mortimer also submitted that, during the more than six months between the publishing of the Substantive Decision and the directions hearing dealing with remedies, the Tribunal remained seized of the matter but the State did not make any application or raise any issue pertaining to it having been denied an opportunity to put something. She submitted that this weighed against there having been any denial of natural justice.
I am not persuaded that the State would have conducted its case before the Tribunal differently in any material respect if the condition had been expressed in terms of access to education benefits for some subjects rather than for all subjects or that the State has suffered practical injustice.[7] Ms Turner’s case before the Tribunal was that she could not comply with the condition that she access the State’s education benefits without a full-time teacher’s aide. Her case was not one of a single act of discrimination but of continuing acts of discrimination between 1 January 1999 to 22 March 2006 in a series of subjects in four separate schools. The State’s case was that the lack of a full-time teacher’s aide did not deprive Ms Turner of access and sought to demonstrate the absence of discrimination on a subject by subject basis. In these circumstances, it is difficult to see how there was a breach of the rules of natural justice in a practical sense.
[7]Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, 13-14 [37]-[38], 34-5 [106], 36 [113].
Had Mr Hanks requested further and better particulars of the subjects in respect of which discrimination was alleged, and Ms Turner nominated particular subjects, the case before the Tribunal would have focused on those subjects only rather than those subjects and the subjects that were not nominated. The course actually adopted lengthened the hearing before the Tribunal because it dealt with subjects for which no discrimination was found but it cannot be said that the State was not given an opportunity to deal with the subjects for which discrimination was found.
The Tribunal was alive to the need to comply with the rules of natural justice in relation to the formulation of the condition. In closing submissions, counsel for Ms Turner sought to amend the Particulars to reformulate the condition in terms of the non-provision of a special education teacher rather than a teacher’s aide. In paragraph 24 of the Substantive Decision, the Tribunal rejected the proposed amendment on the basis that “it is now too late to amend the particulars of complaint and change the footing on which the case was heard” and that “[i]t … would cause unfairness … to make such a serious change at this point”.
For the above reasons, I find that the Tribunal did not err in relation to the second question of law.
Extension of the period of the claim of discrimination
The fourth and sixteenth questions of law set out in the State’s notice of appeal are as follows:
3.4Was it open to the Tribunal to find, as it did in order 1 made on 7 February 2008 and in paragraphs 92, 93, 94, 100, 137 and 138 of the Tribunal’s Reasons for that order, that there had been continuing discrimination by the Appellant for the whole of 2006 and 2007 in circumstances where:
(a)the period covered by the Respondent’s Claim ended on 22 March 2006;
(b)the parties had conducted the whole of the proceedings before the Tribunal on the basis that the period covered by the Respondent’s Claim ended on 22 March 2006; and
(c)the Appellant and the Respondent had limited the evidence, which was adduced before the Tribunal and was relevant to any allegation of discrimination, to that period.
3.16Was it open to the Tribunal to order that the Appellant pay the Respondent a total of $62,000.00 general damages for the Respondent’s loss of the “benefits of education” referable to each of the years 2000, 2002, 2003, 2004, 2005, 2006 and 2007, in circumstances where the period covered by the Respondent’s Claim ended on 22 March 2006?
As appears from the table in paragraph 30 of this judgment, the Tribunal found that the State discriminated against Ms Turner in certain subjects not only in the claim period 1 February 1999 to 22 March 2006, but also in the period 23 March 2006 to 31 December 2007.
Paragraphs 92, 93, 100, 137 and 138 of the Remedy Decision, which are referred to in the fourth question of law, state as follows:
92I am satisfied that the State continued during this period [that is, in semester two of 2006 and in 2007] to impose on Becky a requirement or condition that she access her education without a full-time teacher’s aide. Apart from her severe language disorder which continued, she had some symptoms of anxiety and depression but no other disorder within the clinical range. I am satisfied that she received considerably less educational assistance in 2007 than she did in 2006. This was the more significant because, in 2007, she returned to the mainstream class in history and studied an unmodified curriculum. I am satisfied that, in those classes in English, maths, science and history in 2007 when Becky did not get the assistance she needed, her class participation and access to the curriculum in these subjects and classes was diminished. …
93In maths, because of the use of a modified curriculum, there was diminished access to the mainstream curriculum.
94I conclude that, in 2006 and 2007 in maths, English, science and history, at those times when Becky was not provided with reasonable and adequate educational assistance, her access to the curriculum and participation in classes was diminished. At those times, Becky, because of her severe language disorder, was unable to participate in those classes or to access those curricula to the same extent as her peers without that disorder. The requirement or condition imposed by the State continued to be unreasonable in 2006 and in 2007.
100I am satisfied that the gap in educational achievement between Becky and her peers in English, maths, history and science in 2006 and in English and maths in 2007, was partly due to the inadequate and unreasonable assistance provided to her and partly due to her severe language disorder, irrespective of what assistance might or might not have been provided. Each of these contributors was equal and substantial.
137I also take into account my findings in respect of semester two of 2006 and 2007. In particular, in 2007, I found that Becky received far less assistance than in 2006. In 2006, she received more and more beneficial assistance than she had in any other year.
138Taking all this into account, I award $10,000 for each of the years 2000, 2002 to 2005 and 2007. For the 2006 year, where the loss was least, I award $2000 by way of compensation. …
The transcript of the hearing before the Tribunal indicates that counsel for Ms Turner submitted to the Tribunal more than once that the period of the claim was 1 February 1999 to 22 March 2006, the latter being the date of the Particulars. For example, when, at one point, counsel for the State sought to tender documents whose contents extended to the period after 22 March 2006, counsel for Ms Turner objected to the tender on the basis that the documents fell outside the claim period. Counsel for Ms Turner clearly regarded the claim period as being confined to 1 February 1999 to 22 March 2006.
The Substantive Decision also makes it clear that the Tribunal treated the claim as being confined to the period 1 February 1999 to 22 March 2006. For example, in paragraph 52 of the Substantive Decision, the Tribunal states “[t]he claim covers the period from 1999 to 22 March 2006 inclusive” and in paragraph 382, the Tribunal states that “the period of the claim ends on 22 March 2006”.
As the parties and the Tribunal treated the claim as being confined to the period 1 February 1999 to 22 March 2006, the parties presented evidence and made submissions to the Tribunal on the question of whether the State had discriminated against Ms Turner during that period. While some of the evidence before the Tribunal extended beyond 22 March 2006, this was often due to the fact that some school reports and other documents were not confined to the period ending 22 March 2006.
Although it is clear from the Particulars, the Defence and the Substantive Decision that the parties and the Tribunal regarded the period of the claim to be 1 February 1999 to 22 March 2006, the Tribunal adopted a different approach in the Remedy Decision. In paragraphs 19 and 20, it stated that the date of 22 March 2006 “was mentioned only as an evidentiary mechanism”, in order to provide “a cut-off point for the presentation of evidence” in the case. In my opinion, the Tribunal was incorrect in this characterisation of 22 March 2006.
While it is clear that the claim before the Tribunal involved allegations of discrimination in the period 1 February 1999 to 22 March 2006, it is also clear that the parties and the Tribunal understood that the complaint alleged continuing discrimination beyond 22 March 2006 and sought remedies to deal not only with the discrimination up to 22 March 2006 but also with the continuing discrimination. This is apparent from paragraphs 5A, 9 and 12 of the Particulars (see paragraphs 14 and 15 of this judgment). The Defence also recognised that Ms Turner was pursuing a case of continuing discrimination. That is why paragraphs 9 to 13 of the Defence (see paragraphs 18 and 19 of this judgment) referred to the post-22 March 2006 period.
As the complaint before the Tribunal involved allegations of continuing discrimination and sought remedies for the continuing discrimination, the Tribunal had to be satisfied, at the time it made the 2008 Order, that based on the evidence when the proceeding was last before it in December 2007, the discrimination was continuing. It was necessary for the Tribunal to rely on the evidence presented at the directions hearing in December 2007 rather than the evidence presented during the substantive hearing in July to December 2006 because of the significant lapse of time between the substantive hearing and the time the Tribunal determined what remedies to award.[8] The Tribunal could rely on the evidence presented at the directions hearing to determine whether discrimination was continuing as at that time but not for the purpose of awarding compensation for past discrimination for the period 23 March 2006 to December 2007, as that period was not part of the claim.
[8]See paragraphs 22 to 28 of this judgment. The delay was contributed to by the State’s premature application for leave to appeal.
In view of the fact that the claim period was 1 February 1999 to 22 March 2006, the Tribunal exceeded its jurisdiction and erred in law in finding that the State discriminated against Ms Turner between 23 March 2006 and December 2007 for the purpose of granting compensation in respect of the discrimination in that period. The latter period did not form part of the subject matter of the proceeding before the Tribunal.
Before me, Ms Mortimer conceded that the Tribunal should not have awarded compensation for discrimination for the period following 22 March 2006, as Ms Turner did not seek compensation for that period. While Ms Mortimer made her submission on the basis of natural justice, the concession supports my conclusion in paragraph 84 of this judgment.
For the above reasons, I find that the Tribunal erred in relation to the fourth question of law.
Compensation for discrimination in the extended period
The sixteenth question of law is set out in paragraph 75 of this judgment.
Ms Doyle submitted that the Tribunal’s power to award compensation for discrimination is to be found in s 136(a)(ii) of the EO Act and that this only permits an award of compensation for loss, damage or injury suffered in consequence of a contravention of the EO Act. She submitted that s 136(a)(ii) does not authorise the Tribunal to make awards of general damages for the future. She submitted that the compensation awarded must be linked to a past contravention of the EO Act and that it is not open to the Tribunal to make an award in relation to a period in respect of which a finding of contravention could not have been made.
I agree with Ms Doyle’s submission. It follows from the discussion in paragraphs 78 to 86 of this judgment that it was not open to the Tribunal to award compensation for the period 23 March 2006 to December 2007.
The Tribunal awarded $2,000 for 2006 and $10,000 for 2007. Before me, Ms Mortimer conceded that the Tribunal should not have awarded $10,000 for 2007. She did not concede that the Tribunal should not have awarded $2,000 for 2006. In her submission, as the Tribunal had properly found discrimination from 1 February 2006 to 22 March 2006, there was no basis for disturbing the Tribunal’s award.
Ms Doyle submitted that as the award of compensation had to be confined to the period 1 February 2006 to 22 March 2006, and as the Tribunal had awarded $2,000 for the entire 2006 year, the Tribunal’s award could not stand. She submitted that the compensation should have been calculated on a pro-rata basis. She suggested that a pro-rata basis could have been either 7/52 (representing the number of weeks in which discrimination was found over the total number of weeks in the year) or 25 percent (representing one out of four terms). In response, Ms Mortimer submitted that it is not sufficiently clear from the Tribunal’s reasons that it was engaging in an equal division between the four terms.
I agree with Ms Doyle’s submission that the Tribunal erred in law in awarding $2,000 for the entire 2006 year. The amount will need to be recalculated.
For the above reasons, I find that the Tribunal erred in relation to the sixteenth question of law.
Breach of natural justice in extension of the period of the claim of discrimination
The fifth question of law set out in the State’s notice of appeal is as follows:
3.5Did the Tribunal deny the Appellant procedural fairness by making findings, in order 1 made on 7 February 2008 and in paragraphs 92, 93, 94, 100, 137 and 138 of the Tribunal’s Reasons for that order, that there had been continuing discrimination by the Appellant for the whole of 2006 and 2007, in the circumstances referred to in question 3.4?
It follows from the discussion in paragraphs 78 to 86 of this judgment, including the concession made by Ms Mortimer as set out in paragraph 85 of this judgment, that the Tribunal breached the rules of natural justice in making findings that the Tribunal discriminated against Ms Turner in the period 23 March 2006 to December 2007 for the purpose of awarding her compensation for that period.
As discussed in paragraph 80 of this judgment, the substantive hearing before the Tribunal proceeded on the basis that the claim period was confined to 1 February 1999 to 22 March 2006. In the Substantive Decision, the Tribunal found that the State discriminated against Ms Turner during the above period and stated in the accompanying 2007 Order that a directions hearing would be held on 9 July 2007 to deal with remedies. The directions hearing to deal with remedies eventually took place on 17, 19 and 20 December 2007. At no time was notice given to the State by either Ms Turner or the Tribunal that at the directions hearing, the Tribunal would consider and make findings on the question of whether discrimination had taken place in the period 23 March 2006 to December 2007 for the purpose of awarding compensation for such discrimination. The State was not given an opportunity to be heard on that question. In these circumstances, the Tribunal breached the rules of natural justice in making these findings and in awarding compensation on the basis of those findings and thus erred in law.[9]
[9]Fletcher v Commissioner of Taxation (1988) 19 FCR 442, 455-7; Luck v Renton [2005] VSCA 210, [17]; Towie v Victoria [2008] VSC 177, [43]-[48].
For the above reasons, I find that the Tribunal erred in relation to the fifth question of law.
Was the alleged discriminatory condition ”not reasonable”?
The third, ninth, tenth, eleventh and twelfth questions of law set out in the State’s notice of appeal are as follows:
3.3Was it open to the Tribunal, given the Tribunal’s findings in the Substantive Decision that, in 2000, from 2002 to 2005, and from 1 February 2006 onwards, the Respondent required a teacher’s aide only in some, but not all, of her school subjects, to find that the requirement or condition that the Respondent access her education without a full time teacher’s aide was unreasonable?
3.9Did the Tribunal reverse the relevant onus of proof under s 9(1)(c) of the EO Act in paragraphs 500 and 576 – 584 of the Reasons for the Substantive Decision by requiring that the Appellant prove that the requirement or condition that the Respondent access her education without a full time teacher’s aide was reasonable?
3.10When considering whether the requirement or condition that the Respondent access her education without a full time teacher’s aide was unreasonable, did the Tribunal fail to have regard to relevant considerations, namely:
(a)the impact on and cost to the Appellant of providing a full-time teacher’s aide to all students in the public education system with the same brain dysfunction or equivalent learning disability as the Respondent;
(b)evidence in relation to the numbers of students with the same brain dysfunction as the Respondent or with an equivalent learning disability; and
(c)the impact on all the students attending schools operated by the Appellant including Ringwood Secondary College?
3.11When considering whether the requirement or condition that the Respondent access her education without a full time teacher’s aide was unreasonable in 2000, and in 2002 to 2004, did the Tribunal:
(a)fail to have regard to a relevant consideration, namely that the ‑2 standard deviations criterion for severe language disorder in the Appellant’s Program for Students with Disabilities was not unreasonable; and
(b)fail to consider the Appellant’s submissions at paragraph 221 of its written submissions before the Tribunal?
3.12In deciding whether the Respondent could comply with the condition or requirement imposed by the Appellant, and whether the imposition of that requirement was unreasonable, did the Tribunal fail to have regard to relevant considerations, namely:
(a)the likely outcome for the Respondent’s access to the educational services provided by the Appellant if the Appellant had provided a full-time teacher’s aide to the Respondent; and
(b)that, if the Respondent had qualified for funding for severe language disorder under the Appellant’s Program for Students with Disabilities, the Respondent would not in any event have qualified for sufficient funding for a full time teacher’s aide?
In relation to whether the condition that Ms Turner access the State’s education benefits without a teacher’s aide was not reasonable, the Tribunal said the following in the Substantive Decision:
500One of the factors relevant to the reasonableness or otherwise of the requirement or condition which the State concedes it has imposed is available resources. A number of Becky’s teachers said that, if more resources had been available, they would have done more for Becky. If the State did not have sufficient resources to provide more assistance for Becky than it did (and if Becky’s educational needs could not be met unless more assistance were provided to her), or if the State did not have the resources to provide her with the assistance of a full-time aide, these might be factors relevant to establishing that the requirement or condition that she access her education without a full-time teacher aide was reasonable. Similarly, if the State had a program under which schools were funded to provide (among other things) individualised aide support for children with severe learning disorder, and that program constituted reasonable provision for those children, and if Becky did not qualify for that program and her failure to qualify for it was also reasonable, these might be factors to be taken into account in determining the reasonableness or otherwise of that requirement or condition.
…
575In all the circumstances, I find that the requirement or condition was not reasonable at those times only where I have found that the assistance provided to Becky was not reasonable or adequate. The consequences to Becky of her failure to comply with the requirement or condition were and are extremely serious. Her class participation and access to the curriculum have been substantially diminished. Her failure to comply with the requirement or condition has been a significant factor (but not the only significant factor) leading to diminished educational outcome – outcomes well below the expected level for her age peers. The other significant contributing factor is Becky’s severe language disorder itself, irrespective of whatever assistance was or was not provided to her.
576 I now deal with a number of factors raised by the State in favour of the reasonableness of the requirement or condition. If the evidence were that it would be impossible for the State to provide Becky with more assistance than I have found that she received, this might be a factor in favour of the reasonableness of the requirement. But this is not the evidence.
577If the evidence had been that the State did not have the resources to further assist Becky in her education, this might have been a factor indicating that the requirement or condition was reasonable. But this is not the evidence.
578If the evidence had been that the PSD was an appropriate program to fund and deliver educational assistance to those with severe language disorder and it was reasonable and appropriate that Becky was ineligible for this program, this may have been a factor indicating that the requirement or condition was reasonable. But the evidence is that there are so many difficulties and shortcomings with the eligibility criteria (both before and after they were changed) under the PSD, the design of the ENQ, the determination of critical educational need, and the application of the formula to determine resourcing levels, that I am satisfied that this factor does not make the requirement or condition reasonable.
579If the Language Support Program had delivered reasonable and adequate assistance to Becky, then this might have been a factor to indicate that the requirement or condition was reasonable. But the evidence is that the implementation of that program is ongoing, that there are concerns about the amount of assistance that teachers using the program may be able to provide (particularly for a child with severe language disorder like Becky), that it is unknown whether or not the program is successful, and that the program has not been used in respect of Becky. I am not satisfied that this factor makes the condition or requirement reasonable.
The report of Professor Hempenstall that is referred to in the 2008 Order made the following recommendations:
The following corrective programs are recommended:
· Corrective Reading Program for Comprehension Level B (65 lessons).
· The Corrective Reading Program for Decoding Level B2 – 65 lessons, followed by Level C (125 lessons)
· Spelling Mastery Level D (120 lessons, followed by Level E, 120 lessons).
· Corrective Mathematics: Subtraction module is the appropriate starting point. Rebekah should commence with Transition Lesson 25, and then commence the Subtraction Module at Lesson 25. This should be followed by the three other 65-lesson programs: Multiplication, Division, and Fractions, Decimals and Equations.
In the Remedy Decision, the Tribunal said the following in relation to its order for the provision of remedial tuition:
125I have made orders for remedial tuition using the programs recommended by Professor Hempenstall. These programs cover literacy and maths. Part of the loss suffered by Becky in consequence of the State’s breach of the EO Act is diminished opportunities for progress in her education. To some extent, this is translated into diminished educational progress. I have found that substantial contributors to this diminished educational progress are her severe language disorder and the lack of adequate and reasonable assistance given to her by the State. The State urged me to find that the severe language disorder was by far the greatest contributor to this loss. I have reviewed this evidence and am satisfied that each of these two factors contributed equally. The lack of adequate assistance has meant that Becky has not had the opportunity to develop the skills which might have compensated for the effects of her severe language disorder. Without the development of these skills, assistance from a full-time teacher’s aide may be less effective. I am satisfied that it is appropriate to order remedial tuition with a view to redressing the various kinds of loss I have mentioned. It will give her the skills to help her maximise the educational opportunities and the assistance given to her by the aide. My conclusion is based, not so much on Becky’s actual educational progress (which is diminished in part because of her severe learning disorder) but on her diminished educational opportunities (for which the lack of assistance given to her is primarily responsible).
126My orders for remedial tuition contemplate that Professor Hempenstall will only make recommendations as to what programs are appropriate after consulting with, and receiving information from, Ringwood about Becky’s timetable and work commitments. The evidence is that the programs are time-consuming and intensive and may, together with Becky’s VCE work, place a workload on her which will be too heavy. There may be a need for Professor Hempenstall to prioritise what programs are absolutely essential at this time.
Ms Doyle submitted that paragraph 2(e) of the 2008 Order was impermissibly vague because its contents cannot be ascertained until recommendations are made from time to time by a third party. She also submitted that paragraph 2(e) involved an impermissible delegation to a third party to decide what courses are to be provided by the State to Ms Turner by way of remedial tuition and thereby what the State must do to comply with the Tribunal’s order.
Ms Mortimer submitted that the terms of the Tribunal’s order as to remedial tuition are not unclear or uncertain and do not involve impermissible delegation, as the programs the subject of the order are existing programs that have been identified and it is clear what the State must do to comply with the relevant order. She submitted that regard must be had to what the State understood rather than to ideas of “vagueness” in a vacuum, and that inability to understand what is required by an order must be real and not technical or hypothetical.
Ms Mortimer relied on the fact that the State did not raise an argument before the Tribunal that the proposed order was unclear or involved impermissible delegation at the time that the State made submissions to the Tribunal on the forms of relief sought by Ms Turner, which included an order in the form of paragraph 2(e) of the 2008 Order.[93] She noted that, when the State sought a variation of certain aspects of the 2008 Order in the form originally made on 7 February 2008 in order to ensure, among other reasons, that the State was not in breach of those orders, the State did not seek a variation to that aspect of paragraph 2(e) which required the State to provide remedial tuition in accordance with the recommendations of Professor Hempenstall. Ms Mortimer also pointed out that the State had not identified any actual difficulties in complying with paragraph 2(e) of the Order during the 2008 school year. She also relied on the fact that, consistently with the comments in Sinnappan[94] about the importance of the reservation of liberty to apply in orders made under the EO Act, the Tribunal reserved liberty to apply to enable the parties to seek further directions from the Tribunal if problems arise in the future.
[93]The proposed order required the State to “[p]rovide remedial tuition through the delivery of the programs set out in the report of Dr Kerry Hempenstall to [Ms Turner], such delivery to occur at school”.
[94](1995) 2 VR 242, 268.
It is clear from the principles set out in paragraph 171(h) of this judgment that an order made under s 136 of the EO Act which is uncertain is liable to be set aside.
There is a presumption that a power conferred by legislation must be exercised by the person on whom it is conferred, subject to any express or implied contrary legislative intent.[95] Whether a statute requires a power to be exercised personally by the person designated in the statute depends on the nature of the power and all the other circumstances of the case.[96]
[95]See, eg, Dainford Ltd v Smith (1985) 155 CLR 342, 349, 356-7.
[96]O’Reilly v Commissioners of State Bank of Victoria (1982) 153 CLR 1, 11.
Instruments have been challenged on the basis of “uncertainty” or on the basis of an impermissible delegation in many cases. I have not been referred to any cases with facts which are closely analogous to those in the present case.
In relation to certainty and delegation, Ms Mortimer referred to Randwick City Council v Minister for the Environment[97] and Dornauf v Stewards of the Harness Racing Board.[98]
[97](1998) 54 ALD 682, 728-31 (“Randwick”); aff’d Randwick City Council v Minister for the Environment (1999) 167 ALR 115. The issues relevant to the present matter which were discussed in Randwick were not the subject of the appeal in Randwick.
[98][1994] 2 VR 302 (“Dornauf”).
In Randwick, the federal government made a series of decisions resulting in the implementation of the Sydney Airport “Long Term Operating Plan”. Two councils challenged the following Ministerial direction on the ground, among others, of uncertainty: ”I … DIRECT Airservices Australia, consistent with the requirements of the [Air Services] Act, to implement progressively the [Plan] in accordance with the schedule”. It was argued that the Plan itself was intrinsically uncertain, and that this in turn rendered the direction uncertain. In considering whether there was uncertainty for the purposes of the Administrative Decisions (Judicial Review) Act 1977 (Cth), Finn J emphasised the legislative and practical context in which the direction was made, including that Airservices Australia was a statutory corporation, that the relationship between Airservices Australia and the Minister could be symbiotic under the relevant legislation, and that Airservices Australia would probably be statutorily obliged to seek clarification from the Minister of a direction to which it was unable to attribute meaning. His Honour said that the Plan was not intended to be static and unalterable and that difficulty in implementing it was not of itself a hallmark of uncertainty. He concluded that the Plan was not so unintelligible in content that, when given a direction by the Minister to implement it, Airservices Australia would be unable to ascertain what it was directed to do.[99]
[99](1998) 54 ALD 682, 728-31.
In Dornauf, the Harness Racing Board, under a power conferred by the Racing Act 1958 (Vic), made a rule dealing with when a substance becomes a drug. The rule, among other things, defined “prohibited substance” in terms of a “reading of a level to be determined by the controlling body or higher level”. The effect of the rule would have been to allow the controlling body, which was the Board itself, to determine the relevant level by mere resolution instead of doing so by the making of a rule. It was argued that, in purporting to make the impugned rule, the Board had engaged in an impermissible delegation of its power. This argument was made even though the purported delegation was to the Board itself. In dealing with the argument, Tadgell J adopted the language of Gibbs CJ in Dainford Ltd v Smith in holding that the question of whether an impermissible delegation had occurred can be answered by asking “whether the power has been exercised by the person upon whom it has been conferred and whether it has been exercised in the manner and within the limits laid down by the statute conferring the power”.[100] He examined the relevant provisions of the Racing Act, noted that “the rule-making power conferred by … the Racing Act is wide and relatively untrammelled by statutory qualifications”[101] and came to the following conclusion:[102]
A level fixed with certainty by rule, or by reference to a rule and some other criterion the subject of a resolution by the Harness Racing Board, suffices, in my opinion, for the determination of a level … This is not to say that any rule of the board providing for the determination of a level by simple resolution of the board could necessarily be enforced as a valid rule. There remain prerequisites to a valid subordinate instrument that its operation be both certain and reasonable; and its operation could be neither certain in any practical sense, nor reasonable, if its scope could not be ascertainable and identifiable by those to whom it was designed to apply.
[100]Dornauf [1994] 2 VR 302, 306, citing Dainford Ltd v Smith (1985) 155 CLR 342, 349.
[101]Dornauf [1994] 2 VR 302, 309.
[102]Dornauf [1994] 2 VR 302, 310.
In applying the above principles, and the principles set out in paragraph 171(h) of this judgment, to this case, the starting point is that the power conferred by s 136(a)(iii) is in terms very broad.[103] The breadth of that power is significant in the present case, as is the remedial purpose of the Tribunal’s powers under s 136 of the EO Act, the remedial purpose of the EO Act generally, and the context in which the order was made. In particular, the 2008 Order is to operate for up to three years and was made in an educational context in favour of a student with special needs whose circumstances will not remain static over the period of the order. These circumstances necessarily require flexibility over time and therefore such an order can build a degree of responsiveness to changing circumstances into any obligation that it imposes.
[103]Catch the Fire (2006) 15 VR 207, 243 [103]. See also Sinnappan [1995] 2 VR 242, 267.
Further, Professor Hempenstall’s report sets out a finite and easily understood list of four currently operating programs which set the parameters for the obligation imposed by the order. It is clear from the 2008 Order that the remedial tuition to be undertaken by Ms Turner must be drawn from those four recommended programs. In the circumstances of this case, including the matters discussed in paragraph 258 of this judgment, the fact that the precise content of the obligation is fluid, within the clearly identifiable parameters set by the order, does not render the order uncertain.
The conclusion in paragraph 259 of this judgment is consistent with the approach adopted by the High Court in Waters[104] and the Full Court in Sinnappan[105] in rejecting the challenges to the remedial orders being considered in those cases on the ground of uncertainty. In Waters, Dawson and Toohey JJ said that the reservation of general liberty to apply meant that any uncertainty in the order being considered in that case was not of an incurable kind.[106] In Sinnappan, the Court said that Waters indicates a broad approach to the formal validity of orders under the predecessor to s 136 of the EO Act.[107] The Court’s discussion of the relevant principles suggests that the involvement of a third party in the implementation of an order made under s 136 does not, in and of itself, disclose an error of law.[108]
[104](1991) 173 CLR 349, 397.
[105][1995] 2 VR 242, 268-9.
[106](1991) 174 CLR 349, 397.
[107][1995] 2 VR 242, 269.
[108][1995] 2 VR 242, 272.
In making orders under s 136 of the EO Act, the Tribunal cannot delegate to any person the task of determining the remedy to be awarded in favour of the complainant and the obligations of the respondent pursuant to the order. However, properly understood, no such delegation has occurred in paragraph 2(e) of the 2008 Order. As set out above, the Tribunal’s order imposes an obligation within certain parameters, and that order builds in a degree of flexibility which is appropriate in the circumstances. It does not amount to a delegation of the Tribunal’s powers under s 136(a)(iii) of the EO Act to Professor Hempenstall. Professor Hempenstall cannot add to or alter the four recommended programs. His role under the Tribunal’s order is to recommend which of the four programs are to be provided to Ms Turner from time to time depending on her circumstances from time to time within the period of the order. At any given time, the State will know what recommendation Professor Hempenstall has made and what the State must do to comply with the Tribunal’s order.
Mr Hanks did not submit that the 2008 Order was bad simply because it refers to and effectively incorporates Professor Hempenstall’s report rather than being self-contained by way of setting out the contents of that report which were relevant to the order. I note that, while it is preferable that an order of the Tribunal be self-contained and capable of being understood on its face, such an order can in principle effectively incorporate another document by reference without being completely self-contained, provided that the other document is in the possession of the parties.[109] The proviso is satisfied in this case, as Professor Hempenstall’s report is an exhibit in the proceeding before the Tribunal.
[109]See Dornauf [1994] 2 VR 302, 307-9, where Tadgell J reached this view in relation to delegated legislation.
For the above reasons, I find that the Tribunal did not err in relation to the seventeenth question of law.
Charter of Human Rights and Responsibilities Act
Sections 8, 32 and 49 of the Charter provide as follows:
8 Recognition and equality before the law
(1)Every person has the right to recognition as a person before the law.
(2)Every person has the right to enjoy his or her human rights without discrimination.
(3)Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.
(4)Measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.
32 Interpretation
(1)So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.
(2)International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.
(3) This section does not affect the validity of—
(a)an Act or provision of an Act that is incompatible with a human right; or
(b)a subordinate instrument or provision of a subordinate instrument that is incompatible with a human right and is empowered to be so by the Act under which it is made.
49 Transitional provisions
(1)This Charter extends and applies to all Acts, whether passed before or after the commencement of Part 2, and to all subordinate instruments, whether made before or after that commencement.
(2)This Charter does not affect any proceedings commenced or concluded before the commencement of Part 2.
(3)Division 4 of Part 3 does not apply to any act or decision made by a public authority before the commencement of that Division.
Section 32 commenced on 1 January 2008 and s 8 commenced on 1 January 2007. The appeal to this Court was commenced on 8 July 2008.
It was common ground before me that the appeal to this Court constitutes a fresh proceeding in the nature of judicial review.[110] Ms Mortimer submitted that as the appeal was commenced after 1 January 2008, this Court is bound by s 32 of the Charter to interpret provisions such as s 136 of the EO Act in a manner that is compatible with the right to “effective protection against discrimination” provided for by s 8(3) of the Charter.
[110]Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue of the State of Victoria (2001) 207 CLR 72, 79-80 [15].
Mr Hanks submitted that although the appeal to the Tribunal constitutes a fresh proceeding, the proceeding is an appeal on a question of law from a decision of the Tribunal and that the question for this Court is whether the Tribunal erred in law in making the 2008 Order. He submitted that, as the Charter did not apply to the proceeding before the Tribunal and the orders made by the Tribunal, this Court could not apply the Charter in determining whether the Tribunal made an error of law.
I agree with Mr Hanks’ submission. In determining whether the Tribunal made an error of law, this Court applies the law as it stood at the time the Tribunal made its decision. To use the Charter to give a provision such as s 136 of the EO Act an interpretation that differs from the interpretation that the Tribunal was bound to apply based on the law as it stood at the time the Tribunal made its decision, would, in effect, give the Charter retrospective operation. There is nothing in the Charter that indicates that it intended to have such operation or to change the nature of an appeal to this Court on a question of law from the Tribunal.
Accordingly, I find that the Charter is not relevant to the issues I have to determine.
Summary of Court’s decision on the questions of law
Set out below is a summary of my findings on whether the Tribunal erred in respect of each question of law in the State’s notice of appeal:
(a)First question of law (reformulation of the condition): No.[111]
[111]See paragraph 62 of this judgment.
(b)Second question of law (breach of the rules of natural justice in relation to the reformulation of the condition): No.[112]
[112]See paragraph 74 of this judgment.
(c)Third question of law (unreasonableness of the “no full-time teacher’s aide” condition): No.[113]
[113]See paragraph 111 of this judgment.
(d)Fourth question of law (extension of the period of the claim): Yes.[114]
[114]See paragraph 86 of this judgment.
(e)Fifth question of law (breach of the rules of natural justice in relation to the extended period): Yes.[115]
[115]See paragraph 97 of this judgment.
(f)Sixth question of law (order requiring provision of a full-time teacher’s aide is beyond power): Yes.[116]
[116]See paragraph 205 of this judgment.
(g)Seventh question of law (interpretation of s 136(a)(i) of the EO Act): See paragraphs 193 to 196 of this judgment.[117]
[117]See paragraph 205 of this judgment.
(h)Eighth question of law (order requiring provision of a full-time teacher’s aide is beyond power): Yes.[118]
(i)Ninth question of law (reversal of onus): No.[119]
(j)Tenth question of law (failure to take into account financial considerations and impact on other students): No.[120]
(k)Eleventh question of law (failure to take into account the PSD): No.[121]
(l)Twelfth question of law (failure to take into account the impact on Ms Turner): No.[122]
(m)Thirteenth question of law (order requiring payment of compensation for depression): Yes.[123]
(n)Fourteenth question of law (“home based issues” as one of the causes of Ms Turner’s depression): Not necessary to decide.[124]
(o)Fifteenth question of law (inadequate reasons for order of compensation for depression): Yes.[125]
(p)Sixteenth question of law (compensation for discrimination in the extended period): Yes.[126]
(q)Seventeenth question of law (order requiring provision of remedial tuition): No.[127]
[118]See paragraph 205 of this judgment.
[119]See paragraph 118 of this judgment.
[120]See paragraph 135 of this judgment.
[121]See paragraph 155 of this judgment.
[122]See paragraph 166 of this judgment.
[123]See paragraph 227 of this judgment.
[124]See paragraph 232 of this judgment.
[125]See paragraph 245 of this judgment.
[126]See paragraph 93 of this judgment.
[127]See paragraph 263 of this judgment.
Proposed orders
The appeal will be allowed in part.
The proceeding will be adjourned to a mention to enable the parties to make submissions on what orders should be made in light of this judgment.
As leave to appeal was granted to the State on condition that it pay Ms Turner’s reasonable costs of the appeal, an order will be made that the State pay Ms Turner’s reasonable costs of the appeal.
GLOSSARY OF DEFINED TERMS AND ABBREVIATIONS
| ADHD | Attention Deficit Hyperactivity Disorder |
| Auslan | An Australian sign language |
| Becky | The Tribunal’s reasons for its decisions refer to Ms Turner as “Becky” |
| Charter | Charter of Human Rights and Responsibilities Act 2006 (Vic) |
| Commission | Victorian Equal Opportunity and Human Rights Commission |
| condition | Condition or requirement for the purposes of s 9(1) of the EO Act |
| Defence | State’s further amended particulars of defence dated 21 June 2006 |
| Department | Department of Education and Early Childhood Development |
| ENQ | Educational Needs Questionnaire |
| EO Act | Equal Opportunity Act 1995 (Vic) |
| LSP | Language Support Program |
| Particulars | Ms Turner’s second further particulars of complaint dated 22 March 2006 |
| PSD | Program for Students with Disabilities |
| Ms Turner | Rebekah Turner, the Respondent in this proceeding |
| Remedy Decision | Reasons published by the Tribunal on 7 February 2008 for the 2008 Order |
| State | State of Victoria, the Appellant in this proceeding |
| Substantive Decision | Reasons published by the Tribunal on 22 May 2007 for the 2007 Order |
| Tribunal | Victorian Civil and Administrative Tribunal |
| VCAT Act | Victorian Civil and Administrative Tribunal Act 1998 (Vic) |
| VCE | Victorian Certificate of Education |
| 2007 Order | Document published by the Tribunal on 22 May 2007 headed “Order” |
| 2008 Order | Document published by the Tribunal on 7 February 2008 headed “Findings, Declarations and Orders”, as amended on 25 February 2008 |
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