FEDERAL COURT OF AUSTRALIA
Walker v State of Victoria [2011] FCA 258
Citation: Walker v State of Victoria [2011] FCA 258 Parties: ALEX WALKER (BY HIS NEXT FRIEND PAIGE WALKER) v STATE OF VICTORIA - DEPARTMENT OF EDUCATION AND EARLY CHILDHOOD DEVELOPMENT File numbers: VID 829 of 2008
VID 401 of 2009Judge: TRACEY J Date of judgment: 23 March 2011 Catchwords: HUMAN RIGHTS – Discrimination – education – onus on aggrieved person to establish discrimination - direct discrimination – whether treatment of an aggrieved person less favourable than of a non-disabled person in the same circumstances – ground not made out - indirect discrimination - whether requirements or conditions imposed upon an aggrieved person are unreasonable – requirements or conditions are to be broadly construed – reasonable degree of precision necessary in formulation – requisite precision absent in applicant’s case – ground not made out – breach of Disability Standards in force pursuant to Disability legislation alleged – no contraventions of Standards made out - victimisation charge – onus on aggrieved person to establish victimisation beyond reasonable doubt – proscribed act must be performed on grounds that victim has done thing prescribed by the Act – requisite causal relationship – claim not established to this standard – must fail – application and charge both dismissed Legislation: Disability and Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth)
Disability Discrimination Act 1992 (Cth) ss 4, 5, 6, 11, 14, 22, 31, 32, 34, 42, Part 2
Evidence Act 1995 (Cth) s 140
Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 46PO, Part IIB
Disability Standards in Education 2005 Parts 3, 4, 5, 6, 7Cases cited: Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 cited
Australian Medical Council v Wilson (1996) 68 FCR 46 cited
Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1325 cited
Briginshaw v Briginshaw (1938) 60 CLR 336 cited
Browne v Dunn (1893) 6 R 67 cited
Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 cited
Catholic Education Office v Clarke (2004) 138 FCR 121 considered
Crvenkovic v La Trobe University [2009] FCA 374 cited
Forbes v Australian Federal Police (Commonwealth of Australia) [2004] FCAFC 95 cited
Hinchcliffe v University of Sydney (2004) 186 FLR 376 cited
Hurst v Queensland (2006) 151 FCR 562 cited
Maghiar v State of Western Australia [2002] FCA 262 cited
Minns v New South Wales [2002] FMCA 60 compared
New South Wales (Department of Education) v Human Rights and Equal Opportunity Commission (2001) 186 ALR 69 considered
NSW v Amery (2006) 230 CLR 174 applied
Purvis v New South Wales (2003) 217 CLR 92 considered
Qantas Airways Limited v Gama (2008) 167 FCR 537 cited
Queensland v Forest [2008] FCAFC 96 cited
Sluggett v Human Rights and Equal Opportunity Commission (2002) 123 FCR 561 cited
State of Victoria v Turner [2009] VSC 66 cited with approval
Thomas v SMP International (No 3) [2010] NSWSC 900 compared
Travers v…
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Details
- Case
- [2011] FCA 258
- Decision Date
CaseChat Overview and Summary
Alex Walker, through his next friend and mother Paige Walker, filed an application against the State of Victoria, alleging that the Department of Education and Early Childhood Development had discriminated against him in violation of the Disability Discrimination Act 1992 (Cth) and committed an offence under the Act by taking prejudicial action against him for making complaints about the alleged discrimination. Alex, who has learning disabilities, dyslexia, attention deficit hyperactivity disorder, and Asperger’s syndrome, attended two schools run by the Department over a decade, during which he claimed to have faced discriminatory treatment. His grievances included various strategies implemented by the schools, such as supervised lunch breaks and structured recess activities, and disciplinary actions taken against him for incidents in the classroom and playground. Alex also asserted that the Department engaged in victimisation by asking him to leave a private school and by arranging his education through distance learning and an adult education program after his departure.
The court had to determine whether the Department's actions constituted direct or indirect discrimination under the DDA, and if the Department's alleged victimisation of Alex was substantiated. Direct discrimination was assessed by examining if Alex was treated less favourably than a non-disabled person in similar circumstances. Indirect discrimination required scrutiny of whether the conditions imposed on Alex were unreasonable. The court also needed to establish if there was a breach of the Disability Standards pursuant to the Disability legislation and if the Department's actions amounted to victimisation under the DDA.
The court found that Alex failed to establish direct discrimination as the Department's treatment of him did not disadvantage him in comparison to non-disabled students. Indirect discrimination was also not substantiated as the measures taken by the Department were deemed reasonable and not unduly burdensome. The court concluded that the requisite degree of precision was missing in Alex’s case to support a claim of indirect discrimination. Additionally, the court determined that no breach of the Disability Standards had occurred and that Alex could not prove victimisation beyond reasonable doubt, as there was no causal relationship between his complaints and the alleged prejudicial actions by the Department. Therefore, the application and the charge were dismissed.
The court's final order was to dismiss the application, finding that Alex had not proven his claims of discrimination and victimisation against the Department.
The court had to determine whether the Department's actions constituted direct or indirect discrimination under the DDA, and if the Department's alleged victimisation of Alex was substantiated. Direct discrimination was assessed by examining if Alex was treated less favourably than a non-disabled person in similar circumstances. Indirect discrimination required scrutiny of whether the conditions imposed on Alex were unreasonable. The court also needed to establish if there was a breach of the Disability Standards pursuant to the Disability legislation and if the Department's actions amounted to victimisation under the DDA.
The court found that Alex failed to establish direct discrimination as the Department's treatment of him did not disadvantage him in comparison to non-disabled students. Indirect discrimination was also not substantiated as the measures taken by the Department were deemed reasonable and not unduly burdensome. The court concluded that the requisite degree of precision was missing in Alex’s case to support a claim of indirect discrimination. Additionally, the court determined that no breach of the Disability Standards had occurred and that Alex could not prove victimisation beyond reasonable doubt, as there was no causal relationship between his complaints and the alleged prejudicial actions by the Department. Therefore, the application and the charge were dismissed.
The court's final order was to dismiss the application, finding that Alex had not proven his claims of discrimination and victimisation against the Department.
Orders
Orders of the court
1. The application be dismissed.
Note:
Background
Background to the litigation
Over the past decade Mr Alex Walker has attended two schools which are conducted by the State of Victoria acting through its Department of Education and Early Childhood Development (“the Department”). In these reasons I will refer to the Applicant (who makes his application through his next friend and mother Mrs Paige Walker) as “Alex” to distinguish him from his father to whom I will refer as “Mr Walker”. Alex alleges that the Department has, during most of this period, discriminated against him by various acts or omissions which are rendered unlawful by the Disability Discrimination Act 1992 (Cth) (“the DDA”). He seeks a number of remedies. He also alleges that the Department committed an offence under the DDA by taking prejudicial action against him because he had made a complaint about some of the alleged contraventions of the DDA.BACKGROUND Alex was born on 11 February 1995. It was common ground that he suffered and suffers from a number of disabilities including learning disabilities, dyslexia, attention deficit hyperactivity disorder and Asperger’s syndrome. In January 2001, Alex commenced attending school at Branxholme-Wallacedale Community School (“Branxholme”). For the first three years, despite requiring significant special attention, he received positive reports regarding his educational progress. In late 2004, however, the school began to have concerns about Alex’s behaviour, both in class and towards other students, particularly during recess and lunchtimes. The school responded by implementing a number of strategies which were designed to assist Alex in the classroom and ensure that he was being supervised at other times. These strategies (some of which became the subject of complaint in this proceeding) included arrangements for Alex to spend certain lunch times at home and the provision of structured, supervised recess activities when he was on the school premises. Alex’s behaviour did not improve. In both Grades 5 and 6 (which he completed in 2005 and 2006 respectively) serious incidents occurred in both the classroom and the playground which led to disciplinary action being taken against Alex. The level of interaction between Alex’s parents and the principal and other teachers increased as the school sought to deal with these problems. Action (and inaction) by the school during these two years was also the subject of complaint by Mr and Mrs Walker. In December 2006, Alex completed primary school. In January the following year, he began attending the Good Shepherd School, where he remained for the first half of 2007. This was a private school which was not conducted by the Department. No complaint has been made against it in this proceeding. As early as March 2007 concerns were expressed by the school to Alex’s parents regarding his use of foul and abusive language and shortly thereafter, he was asked to leave Good Shepherd. For the second half of 2007, he was educated by distance education and at the Southern Grampians Adult Education Youth Program (“SGAE”).
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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