Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Wong v Office of the Board of Studies NSW (No 4) [2012] NSWADT 128 Hearing dates: 23, 24 and 26 April 2012 Written submissions closed 7 June 2012 Decision date: 03 July 2012 Jurisdiction: Equal Opportunity Division Before: R J Wright SC, Judicial Member
A Lowe, Non-Judicial Member
Dr J Schneeweiss, AM, Non-Judicial MemberDecision: The Tribunal orders that:
1.the Applicant's Complaint be dismissed in whole.
2.the Applicant pay the Respondent's costs thrown away because of the adjournment granted on 20 February 2012 but limited to one half of the cost of engaging the Respondent's Senior and Junior Counsel for 20 February 2012.
Catchwords: EQUAL OPPORTUNITY - Discrimination - Discrimination on the ground of disability - Indirect discrimination Legislation Cited: Anti Discrimination Act 1977 (NSW)
Administrative Decisions Tribunal Act 1997 (NSW)
Education Act 1990 (NSW)
Disability Discrimination Act 1992 (Cth)
Equal Opportunity Act 1984 (WA)
Equal Opportunity Act 1984 (Vic)Cases Cited: Wong v Board of Studies New South Wales HYPERLINK " NSWADT 274
Park v Commissioner of Police [2000] ADTAP 4
Commissioner for Children & Young People v FZ [2011] NSWCA 111
Purvis v New South Wales (2003) 217 CLR 92
Zoltaszek v Downer EDI Engineering Pty Ltd [2011] FCA 744
IW v City of Perth (1997) 191 CLR 1
New South Wales v Amery (2006) 230 CLR 174
Hurst v State of Queensland (2006) 151 FCR 562
Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165
Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78
Waters v Public Transport Corporation (1991) 173 CLR 349
Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251
Gardiner v WorkCover Authority of New South Wales [2004] NSWADTAP 1
Amery v State of New South Wales [2004] NSWCA 404
KT v Sydney Local Health Network (No. 2) [2011] NSWADTAP 8
AT v Commissioner of Police [2010] NSWCA 131Category: Principal judgment Parties: Sarah Hui Xin Wong (Applicant)
Office of the Board of Studies (Respondent)Representation: Counsel
C Ronalds SC and S Talbert (Respondent)
S Wong (Applicant in person)
File Number(s): 101107
REASONS FOR DECISION
EQUAL OPPORTUNITY DIVISION (R J Wright SC - Judicial Member, A Lowe - Non Judicial Member, Dr J Schneeweiss - Non Judicial Member): The Tribunal has before it a complaint by the Applicant, Ms Wong, that the Respondent, the Office of the Board of Studies of New South Wales, unlawfully discriminated against her on the ground of disability under s 49M of the Anti-Discrimination Act 1977 (NSW) (the ADA) relying in particular on indirect discrimination as described in s 49B(1)(b) of the ADA.
Ms Wong's complaint involves two claims. The first is a claim that the Respondent indirectly discriminated against her by failing adequately to accommodate Ms Wong's joint hyper mobility of the wrist and hand during her Higher School Certificate English Advanced and Modern History examinations in 2008. The second claim relates to indirect discrimination by the Respondent concerning the rejection of her Illness/Misadventure appeal because her HSC examination marks were higher than her school assessment marks in English Advanced and Modern History.
The Complaint
On 20 January 2010, Mrs Eileen Wong, acting on behalf of her daughter Ms Wong, lodged a complaint with the President of the Anti Discrimination Board of New South Wales (the ADB) concerning the two claims of discrimination. Mrs Eileen Wong was expressly authorised by the Applicant to make the complaint on her behalf.
On 24 March 2010, the ADB notified the Respondent of the complaint and sought a written response to the allegations. The Respondent provided its response on 3 May 2010. In its response, the Respondent denied that it had discriminated against Ms Wong.
On 28 May 2010, the ADB received additional information from Ms Wong.
By letter dated 30 August 2010, the President of the ADB informed Ms Wong that he had decided to decline her complaint under s92(1) of the ADA on the basis that he was satisfied that it was lacking in substance.
In that letter, the President stated that the reasons for his decision were:
"- Information provided by the parties establishes that the Respondent did not refuse the Complainant a service.
The Board of Studies NSW accepted, considered and processed all of Ms Sarah Wong's special examination provisions applications and appeals.
The Board of Studies NSW subsequently accepted, considered and processed Ms Sarah Wong's application for misadventure.
- While the Complainant may be unhappy with the Respondent's decision, special examination provision was granted and evidence provided support that it was done so in accordance with the Board of Studies' criteria.
- The Respondent has provided reasonable information that is supported by evidence that its illness/misadventure provisions only allow for adjustment to an applicant's examination mark if their school assessment marks are higher. This was not the case in the Complainant's situation and information provided by the Complainant supports that the Wong family were aware of the rules and procedures under these provisions."
By letter dated 24 September 2010, Mrs Wong, on behalf of her daughter, required the President to refer the complaint to the Tribunal. Such a referral takes place under s 93A of the ADA which provides:
"(1) If the President has given a complainant a notice under s 87B(4), 91(4) or 92, the complainant may, within 21 days after the date on which the notice was given, require the President, by notice in writing, to refer the complaint to the Tribunal.
(2) On receipt of a notice under ss(1) from the complainant, the President is to refer the complaint to the Tribunal."
Under s96(1) of the ADA, however, leave of the Tribunal was required to proceed in a case such as the present. Section 96(1) provides:
"A complaint that is referred to the Tribunal on the requirement of a complainant under s 93A(1) but not including a complaint to which s 91(2) applies [this subsection has no application in the present case] may not be the subject of proceedings before the Tribunal without the leave of the Tribunal."
The President of the ADB accordingly referred the matter to the Tribunal and the President's Summary of Complaint was filed in the Tribunal on 30 September 2010. Under s 95(3) of the ADA, a referral under s 93A is taken to be an application for an original decisions within the meaning of the Administrative Decisions Tribunal Act 1997 (NSW) (the ADT Act). The period of complaint was noted in the President's Summary as being from 1 September 2008 to 31 July 2009.
The application for leave to proceed in the Tribunal was heard on 9 November 2010 by the Deputy President of the Tribunal and leave was granted on 16 November 2010 (see Wong v Office of the Board of Studies NSW [2010] NSWADT 274). In accordance with the Tribunal's directions, points of claim and points of defence were filed by the parties.
There were a number of interlocutory applications and the final hearing of the matter scheduled for 20, 21 and 22 February 2012 was adjourned. This adjournment is the subject of an application for costs by the Respondent which will be dealt with later in these reasons. In the course of dealing with an application for the issue of summonses, the Tribunal also made an order clarifying that the question of liability was to be determined separately from the question of relief, if any, to be granted. Eventually, the final, oral hearing in relation to liability took place on 23, 24 and 26 April 2012.
After the end of the oral hearing, Ms Wong applied for leave to file further written submissions in response to the Respondent's oral and written submissions made at the hearing. By amended directions dated 16 May 2012 the Tribunal directed:
"1. The Applicant have leave to file and serve by 28 May 2012 written submissions not exceeding 3000 words and limited to matters in reply to the oral submissions of the Respondent made on 26 April 2012 and the written submissions handed up on that day (including submissions as to costs).
2. The Respondent have leave to file and serve by 7 June 2012 written submissions not exceeding 3000 words and limited to matters in reply to the written submissions to be filed by the Applicant under order 1."
By letter dated 27 May 2012, Ms Wong sought leave to reply in more than 3000 words. The Tribunal notes that Ms Wong, a litigant in person, (although she was represented by a solicitor on the occasion when the final hearing of the matter was adjourned in February 2012) has already been given numerous opportunities to put her case orally and in writing. Ms Wong took up those opportunities prior to and during the hearing in April 2012. Ms Wong's submissions received by the Tribunal on 28 May 2012 appear to the Tribunal to extend well over 3,000 words. In all the circumstances and having regard to the history of this matter, the Tribunal would normally be minded to reject Ms Wong's further written submissions of excessive length. Those submissions, however, are not in a form which allowed the Tribunal to have regard to the first 3,000 words and disregard the remainder. The Tribunal has reviewed and considered the whole of the document and believes that it would make no difference to its decision if it received the excessive parts of the submissions or not (however the excessive part was determined). Accordingly, in order to regularise the position the Tribunal reluctantly grants leave to the Applicant to rely upon written submissions received on 28 May 2012 to the extent that they exceed 3,000 words.
The Evidence
At that hearing, the President's Summary of Complaint was admitted into evidence. In addition, Ms Wong relied upon her own sworn statement of 20 December 2011 and three sworn statements of her mother, Mrs Eileen Wong, dated 20 December 2011, 11 April 2012 (headed 'My Response to McCaslin's Statement and Other Related Information Regarding my Phone Conversation with the Respondent's Officers') and 11 April 2012 (headed 'Comments on Mr Ford's Statement'). Ms Wong also put before the Tribunal two bundles of documents which were referred to in the sworn statements and two student answers taken from a publication of the Respondent which were actual examination answers to questions in the 2003 HSC that received high or mid range marks in English paper 1.
With the concurrence of the Tribunal and by agreement between the parties, objections to the Applicant's evidence were dealt with in the following manner. Rather than have the Tribunal consider each objection individually, the Respondent handed up two tables of objections which dealt with all of the Applicant's evidence.
In relation to the objections to the documents contained in the two bundles of documents relied upon by the Applicant, the Applicant provided an explanatory table setting out, among other things, the asserted relevance of each document.
It was then proposed that if the Tribunal, when considering the evidence and making its findings, found it necessary to rely on a portion of the written evidence or documents objected to, it should consider the Respondent's objection and any relevant material put forward by the Applicant, and rule on the objection in the course of making its findings.
The Tribunal acceded to this proposal having regard to the fact that the overwhelming majority of the objections were based on relevance and most of the other grounds of objections raised were that the material was speculation, opinion or submission. In addition, the Tribunal took into account that, although it is not bound by the rules of evidence and it may enquire into and inform itself on any matter in such manner as its thinks fit under s73(2) of the ADT Act, it was still required under that section to apply the rules of natural justice.
Section 73(2) was the subject of comment in the Court of Appeal in Commissioner for Children & Young People v FZ [2011] NSWCA 111, where Young JA said at [63]:
"This sort of provision is not unusual in administrative law and in cases involving child protection. Its scope was analysed by Hodgson J (as his Honour then was) in Roberts v Balancio (1987) 8 NSWLR 436 where he said that the provision gave the Court a discretion to act on material which is rationally probative, but the Court must determine in all the circumstances whether it is proper to act on such material and must act fairly towards the parties."
Accordingly, notwithstanding that s73(3) of the ADT Act requires the Tribunal to act 'without regard to technicalities or legal forms', the Tribunal can only act on material which is rationally probative and which the parties have had a fair opportunity to address. On these bases, the Tribunal will, where necessary, rule on the admissibility of material that has been objected to, in the course of these reasons for decision.
Both the Applicant, Ms Wong, and her mother, Mrs Eileen Wong, were crossed examined. The Tribunal formed the view that both Ms Wong and her mother were highly intelligent women who were doing their best to tell the truth as they perceived it. Although Mrs Wong was keen to argue her daughter's case, she did manage generally to restrain herself and focus on answering the questions she was asked. We accept their evidence and note that the only areas of substantial conflict in the evidence (as opposed to material which is more appropriately treated as submission or emotional reactions) appear to relate to recollections of conversations between Mrs Wong and officers of the Respondent. In the case of these conversations, the Tribunal finds that both Mrs Wong and the officers were trying to give honest, truthful evidence and any differences were the result of differing perspectives and recollections. If any need to resolve such conflicts arises, it will be addressed specifically in these reasons.
The Respondent's written evidence consisted of a statement of a Consultant Paediatrician who, in accordance with the Tribunal's previous ruling, will be referred to in these reasons for judgment as Dr D. Dr D is one of four medical consultants to the Respondent's Special Provisions Panel and has held this position for over 20 years. The Respondent also relied upon the statements of Ms Yates, who from the early 1990's to 2010 was a member of the Special Provisions Panel, and Ms McCaslin, who between August 2008 and August 2009 was employed as a Project Officer, Student Examination Support, Student Support Services with the Respondent. Finally, the Respondent relied upon the statement of Mr Ford, who at the relevant times was the Head or Manager, Student Support Services of the Respondent.
In addition, the Respondent put in evidence two documents, one relating to Ms Wong and the other to her sister, Ms Katherine Wong's, application for special provisions for the 2006 Higher School Certificate examination.
Each of Dr D, Ms Yates, Ms McCaslin and Mr Ford was cross examined. Once again, the Tribunal formed the view that each of these witnesses was conscientiously attempting to tell the truth and was careful and considered in his or her answers. We accept their evidence. As has been noted above, if any conflict in the evidence requires resolution, the Tribunal will deal specifically with that in these reasons.
The Parties and Background
The Applicant, Ms Wong, was born in the latter half of 1990 and it was not in dispute that she was an academically outstanding student who had the ability to achieve at the highest levels in the Higher School Certificate examinations and assessments. From 2003 to 2008, Ms Wong completed Years 7 to 12 of her education at Abbotsleigh, a private girls school at Wahroonga.
The Respondent, the Office of the Board of Studies of New South Wales, is a government department that provides professional and administrative support to the Board of Studies of New South Wales. The Office of the Board of Studies is comprised of various directorates and branches, including the Student Support Services Branch.
The Board of Studies (the Board) is a statutory body, established under Part 9 of the Education Act 1990 (NSW), that serves government and non-government schools in New South Wales in the development of school education from Kindergarten to Year 12. One of the Board's functions is to manage the external examinations which form part of the assessment upon which the Higher School Certificate or HSC is awarded.
During 2007 and 2008, a student's HSC result for each subject attempted was (subject to a successful illness/misadventure appeal) made up as follows: 50% from the mark determined as a result of the student's school assessment ranking; and, 50% from the HSC examination mark (which was the student's raw mark in the examination scaled in accordance with the Respondent's procedures).
In order to determine a student's school assessment ranking, the student's school was required to conduct assessment tasks throughout the HSC year for each subject and the Board provided schools with advice concerning course components and weightings for assessment, and administrative guidelines as to the number of tasks, advance notice and dealing with atypical situations. The content, timing and marking of individual assessment tasks were, however, matters for the school. The Board had no provision for intervening in the marks awarded for a task, which was a professional judgment by the teachers involved. A student might appeal to the Board if their final mark or rank based on their school's assessment was affected because the school did not follow a Board policy.
The external examinations managed by the Board for most HSC subjects were timed, handwritten examinations conducted at the end of the course. The responses of the students who took these examinations were marked by markers engaged by the Board and not by the school.
Special Provisions and Related Matters
It is necessary here to say something about special provisions in relation to the HSC examinations.
As part of the functions of the Board of Studies in managing the HSC examinations, the Board may approve special provisions for a student with a special need or disability for the purposes of that student reading the examination questions and/or communicating his or her responses. The Board's Assessment Certification Examination Manual, December 2005 version (which the Tribunal understands was the version applicable to the 2008 HSC examinations), deals with the approval of special provisions in section 10 headed 'School Certificate and Higher School Certificate Special Examination Provisions'. Section 10 provides in part:
"10.1 Policy
The Board may approve special examination provisions for the ... higher school certificate examinations if a student has a special need that would, in a normal examination situation, prevent him or her from:
(a) reading the examination questions; and/or
(b) communicating his or her responses.
Principals have the authority to decide and implement special provisions for school-based assessment tasks including examinations.
10.2 Special Examination Provisions
Special examination provisions are granted to provide students who have special examination needs with practical support in the ... higher school certificate examination.
Regardless of the nature of the special need, the provisions granted will be solely determined by the implications of the student's functioning in an examination situation.
Provisions may include Braille papers, large print papers, use of a writer, use of a reader, extension of test time, rest breaks, use of a personal computer, establishment of a special test centre, exam supervision, individual supervision, permission to take medication and other provisions as judged appropriate.
10.3 Outside the Board's Guidelines
The Board will not compensate students for difficulties in undertaking a course and preparing for the ... higher school certificate examination.
Schools are responsible for any decisions made a school level to offer provisions to students with special needs in course work, assessment tasks and school tests. The Board can offer no guarantee that school-determined provisions will apply in the ... higher school certificate examinations, as each application is individually assessed to ensure consistency and equity.
...
Students for whom special provisions are approved may not be eligible for illness/misadventure consideration unless they experience a deterioration or variation their condition during the actual examination. Refer to Section 11 for procedures to be followed in the case of students affected by illness or misadventure during the ... higher school certificate examination.
10.4 Application Procedures
Applications for special examination provisions are to be submitted on the form sent to schools. Refer to the Office of the Board of Studies Events Timetable for the return date. [In 2008, the return or closing date was Friday 11 April 2008.]
During the test period, emergency applications may be made by telephoning the Student Examinations Unit at the Office of the Board of Studies. Written applications supported by documentary evidence should be made immediately thereafter.
It is recommended that students who's need for special examination conditions is known to school staff apply for special examination provisions during term 4 of ... Year 11. The Board will endeavour to consider applications for Year ... 11 students to enable students to practice the use of approved provisions.
Students are able to apply for special provisions during the first half of the year in which they sit the ... higher school certificate examinations. Schools should note the due date for applications as indicated in the Events Timetable. The late submission of special provisions applications may disadvantage the students.
Applications will be considered on their merits. Provisions made by schools during their own tests may not necessarily meet the Board's criteria for the ... higher school certificate examinations. Details of such provisions are requested on the application forms.
The decision on each application will be advised to the Principal, the student (via the Principal) and the presiding officer.
If a request for special examination provisions is declined, schools may appeal on behalf of the student(s). Appeals should be made within 14 days of receiving the Office of the Board of Studies decision letter.
10.5 Evidence
When an application is submitted, evidence must be included, indicating the precise nature of the special need and the consequent effect on examination performance.
A student with a special need may be affected in a variety of ways ...
The appendix to this section sets out some examples of difficulties in examinations. Possible special provisions and the types of evidence required in an application for special examination provision(s)."
The appendix referred to is found in Attachment 10.1 in a table headed 'Table of Special Examination Provisions'. Under the heading 'Medical Difficulties' the following appears:
Difficulty/Impairment in Examination
Some Possible Provisions
Minimal Documentation
Hand/arm
Difficulty with writing
Discomfort/pain prevents writing, or cast, etc reduced mobility.
Excessive fatigue of hand.
Computer, writer, extra time to rest.
Current medical report.
Two timed hand written essays
One timed typed essay (if a PC is requested).
Teacher comments.
A copy of the blank 2008 Special Examination Provisions Application Form was before the Tribunal. On the front page of that form in large type was the notation 'Closing Date: Friday 11 April 2008'. Some parts of the form were required to be completed for each application and some parts were only to be completed if a particular sort of need or disability was relied upon or if certain types of provisions were sought.
One part which was required to be completed for each application was found on page 4 of the application form and was headed 'Provisions Requested'. On this page, the applicant was required to tick a box next to the type of provision requested. There were 40 such types of provisions listed under various headings and at the end of that list, there was the following:
This list does not include all provisions possible or available to students. If you wish to apply for provisions not listed above, please list below.
Other Provisions
There followed a series of four boxes with spaces next to them which could be filled in with the additional types of provisions sought.
The types of provisions which were listed and which were most likely to be relevant to a writing difficulty were 'extra time' which referred to extra time in which to complete the examination, 'extra time to rest' (for fatigue, pain or anxiety or attention related conditions), 'separate supervision' (this would be appropriate where because of extra time to write or extra time to rest, the candidate would not be finishing the examination at the same time as students without special provisions) and 'writer' (based on a physical writing difficulty) which involved the provision of a writer to whom the student dictated his or her answers and this also included extra time to compensate for the dictation process.
Mr Ford gave evidence as to the nature of these types of provisions and the considerations that the Respondent typically took into account when deciding whether to grant them or not. Mr Ford's evidence was that extra time to write was only approved where the student's demonstrated writing speed, measured on two extended responses, fell below a certain threshold. That provision might for example increase the student's examination time by 2.5 minutes per half hour. The evidence was that the Board kept the threshold writing speed confidential and maintained strict guidelines around the relevant writing speeds, to avoid the possibility of students applying for special provisions and 'going slow' in order deliberately to produce a writing speed below the cut off. It can be appreciated that this could be a problem if the cut off became generally known or was disclosed to particular students.
Mr Ford also noted that the Respondent had received advice from its special provisions panel experts that approving extra time to write was counter intuitive for students with frequent or recurring hand pain. If a student experienced regular hand pain over three hours, then extending the pain experience to 3.75 hours was not an appropriate provision. Rather, the Board would seek to provide other assistance, such as extended rest breaks or provision of a writer.
Mr Ford also explained that extra time to rest (rest breaks) was considered an appropriate provision for many students who encountered an increase in hand pain when writing. The standard provision was noted to be 5 minutes per half hour of examination time. Thus, for the typical three hour examination, the student would be allowed 30 minutes of rest breaks, taken at times and durations of the student's choosing. Students would not be permitted to read or respond to the examination during rest breaks. Where the rate of 5 minutes per half hour was insufficient, that rate might be extended by the Board.
Where rest breaks were found to be insufficient in responding to the student's disability, then a writer might be approved. Mr Ford noted that some students could use rest breaks successfully in answering short answer or objective questions but writing extended responses caused recurring hand pain even after taking rest breaks. Writers would generally be chosen by the student's school and would typically be a Year 11 student. Where a writer was used, the student's examination time would be extended by 5 minutes per half hour to compensate for the dictation process. Mr Ford specifically said that students were encouraged to practice with their writer to develop teamwork and an understanding of the process.
Where a writer was approved just before the examinations (for example, in the case of a broken writing hand on the eve of the examination), then the Board might uphold an illness/misadventure appeal for the early examinations, while the dictation skill was being developed, if using the writer led to unanticipated difficulties for the student. In this regard, Mr Ford's evidence was that many students successfully negotiated examinations with a combination of rest breaks and a writer. They might write for themselves, with rest breaks during the earlier short questions, and then use a writer for the later extended responses. It was said that the Respondent endorses such an approach and the appropriate time extensions are applied by the examination supervisor.
An examination of the 40 listed types of special provision on page 4 of the Application form referred to above reveals that the provision of a computer is not one of the provisions listed, although there is nothing to prevent it being sought in the other provisions section at the end of the list.
Mr Ford gave evidence as to why a computer may be approved. He said that a computer would be approved only for those students who had demonstrated their inability to use any of the alternative provisions. This restrictive approach to the use of a computer to address writing disabilities was explained at some length. Access to a computer in an examination, it was said, substantially changed the nature of the student's response and introduced further considerations such as the following:
(a) While it is not simple to quantify the difference, there was evidence that typical typing speed was faster than typical hand writing speed, up to 50% faster.
(b) Placing a neat, formatted typed response before a marker might subconsciously affect the marker's perception of its academic worth, for better or worse. While it was possible to train and adjust for such a possibility, it was an outcome that Mr Ford said was better avoided unless there was evidence that a computer was the only effective way for the student to communicate his or her answers.
(c) In a small number of cases, students granted the use of a computer had engaged in malpractice during an examination by uploading and submitting a prepared answer from an unauthorised USB flash drive brought into the examination.
While Mr Ford acknowledged that supervisors should be vigilant against all forms of cheating, he said that the size and speed of such an activity made it difficult to detect or intercept.
From Mr Ford's oral evidence, it became clear that in dealing with writing difficulties the Board generally adopted a staged approach to the granting of special provision. First, provision by way of rest breaks would be granted. If that did not adequately address the problem, as a second stage, rest breaks and the alternative of using a writer would be allowed. Thirdly, if it was demonstrated that the combination of a writer and rest breaks did not meet the student's special need, then the use of a computer might be approved.
Consequently, a computer was approved as the 'provision of last resort'. In addition, however, Mr Ford noted that as with all provisions this was determined on a case by case basis and computers were often granted to students with conditions like autism spectrum disorder or cerebral palsy, where communication with a writer was not feasible. As a result, not all students had to pass through the 3 stage process before they would be granted use of a computer but any students granted such provision would have to be able to demonstrate that neither rest breaks nor the provision of a writer (or other similar provisions) would adequately address their particular disability.
It appears that a less restrictive approach to the availability of computer special provision had previously been in place but had been replaced by the approach referred to by Mr Ford at some time before about 2007/2008.
The availability of, and the process of applying for, special provisions and related matters were brought to the attention of students sitting for the HSC by the Respondent. At the commencement of their Year 12 studies, all HSC students sitting for the HSC examinations in 2008 were provided with a booklet called 'Rules and Procedures for 2008 Higher School Certificate Candidates', published in October 2007. A copy of this booklet was before the Tribunal. In that booklet, students were informed about special provisions in section 15 which stated:
15 Special Examination Provisions for Students with Special Needs
(i) If you have a special need that would, in a normal examination situation, prevent you from:
Reading the examination questions; and/or
Communicating responses,
the Board may approve special examination provisions.
(ii) Applications are due by early April, although your school may submit your application by the end of Year 11 so that you will receive a decision in early Year 12. Late applications will be considered if your special need first becomes known to you after this date. If you wish to apply for special examination provisions, you should ask your Principal, HSC advisor or school counsellor about lodging an application with the Board of Studies.
(iii) ...
(iv) Your application should contain recent evidence of your special need and, in some cases, examples of your work. You may need to organise any testing required early in the year, to ensure your application reaches the Board by the closing date. If applications do not contain sufficient evidence, the Board's decision may be delayed.
(v) Special examination provisions are not available:
As compensation for difficulties in undertaking a course and preparing for the examination;
For lack of familiarity with the English language.
...
That the booklet also dealt with illness/misadventure appeals in section 16 and assessment ranking appeals in section 22 in the following terms:
16 Illness/Misadventure Appeals
If you believe that your performance in the examination was diminished because of circumstances beyond your control, you can lodge an illness/misadventure appeal.
(1) You may appeal for a variation to your results if you were prevented from attending an examination or you consider that your performance was affected by illness or misadventure immediately before or during the examination. Appeal forms are available from the presiding officer or your Principal. Further details of appeals procedures are on the form and on the Illness/Misadventure Information Guide for Students sheet. It is your right and responsibility to lodge an appeal.
...
(iv) If you have been granted special examination provisions such as extra time, you are generally not eligible for illness/misadventure appeals unless you experience additional difficulties during the examination.
(v) If your appeal is upheld, you will be awarded the higher of your examination mark and your moderated assessment mark as your examination mark. Your Record of Achievement will indicate if the assessment mark is used.
...
22 Assessment Ranking Appeals
(i) After the final HSC examination, you can obtain your rank order for assessment in each course via Students Online or from your school. If you feel that your placement in any course is not correct, you should talk to your teacher and you may apply to your Principal for a review/appeal.
(ii) There is no provision for a review of marks awarded for individual assessment tasks. Reviews are limited to the assessment process. The only matters that the school will consider are whether or not:
(a) The weightings specified by the school in its assessment program conform with the Board's requirements as detailed in the relevant syllabus; and/or
(b) The procedures used by the school for determining the final assessment mark conform with its stated assessment programs; and/or
(c) computational or other clerical errors have been made in the determination of the assessment mark.
(iii) If you wish to apply for a review, you must do so by the date specified by the Board. The school will advise you of the outcome of its review and will advise the Board of any changes to assessment marks.
(iv) If you are dissatisfied with the outcome of the school review, you may advise your Principal that you wish the appeal to be sent to the Board of Studies. There can be no appeal against the marks awarded for individual assessment tasks. The Board will consider only whether:
(a) The school review process was adequate for the determining items (a), (b) and (c);
(b) The conduct of the review was proper in all respects.
(v) The Board will not revise the assessment marks or rank order. If the appeal is upheld, the Board will direct the school to carry out a further review. Further details about reviews/appeals are on the Assessment Appeal Form which can be obtained from the school. Appeals to the Board must be lodged at the school by the date on the form. No extension will be considered.
With this understanding of the HSC examinations and special provisions and related matters, the Tribunal now turns to consider Ms Wong's particular circumstances as they are relevant to her complaint.
The Applicant's Progress up to and including the Trial Examinations in 2008
Ms Wong's evidence was that she experienced difficulties writing for extended periods throughout her secondary education but had not appreciated that it was other than normal until just prior to the HSC examinations in 2008.
Ms Wong sat for the School Certificate examinations in 2006 and completed 5 mandatory external tests in November 2006 without any special provision. During this year, Ms Wong also completed the Year 11 Preliminary Chemistry course under the Respondent's accelerated progression provisions. As a result, in 2007 Ms Wong was able to complete the HSC course in 2 Unit Chemistry, including school assessment tasks during the year and a three hour written examination on 7 November 2007.
Ms Wong did not apply for special provisions in 2007. In the three hour Chemistry examination paper, Ms Wong says that she suffered pain and cramps and struggled to complete the last section in the extended answers. She did not however report it or lodge an illness/misadventure appeal in respect of this examination as she thought her cramping and pain were a common problem for students and she had the impression that her school had repeatedly trivialised her problem. (The Tribunal rules that the relevant portions of paragraph 30(g) of the Applicant's sworn statement of 20 December 2011 are relevant and admissible.)
It may be noted here, however, that Ms Wong did seek a school review of her assessment ranking for the 2 Unit Chemistry course in 2007. The review in respect of the March assessment was resolved satisfactorily between the school and Ms Wong. No such resolution was, however, able to be achieved for the August 2007 assessment. As a result, Ms Wong lodged a form headed 'Application for School Review of Assessment Ranking' dated 29 November 2007 and supporting documentation with the Respondent as an "Assessment Rank Appeal". The ground ticked by Ms Wong as being the ground relied upon was that 'the procedures used by the school for determining the final assessment mark do not conform with its stated assessment program, in particular the weightings used for the various assessment tasks are not consistent with those specified in the Assessment Program'. On the front of the form filled in by Ms Wong was also the following statement:
"The grounds for appeals against school assessments are detailed below. Please note that there is no appeal against the marks awarded for assessment tasks."
The Respondent declined the appeal as it was in effect seeking to vary the school's assessment mark which the Respondent could not do (as explained in section 22(ii) of the 'Rules and Procedures for 2008 Higher School Certificate Candidates' booklet quoted above).
No further action was taken by or on behalf of Ms Wong in that regard at this time.
In 2008, Ms Wong completed the HSC courses in PDHPE, Modern History, Physics, English Advanced, Mathematics Extension 2 and Mathematics Extension 1. Ms Wong's HSC result in Chemistry from 2007 was brought forward for inclusion with the 2008 results, without penalty.
As part of completing the six courses referred to above in 2008, Ms Wong was required to complete a number of assessments tasks by her school including trial examinations in about August 2008. In addition, Ms Wong was required to sit for a number of external, timed, written HSC examinations, administered by the Respondent, in October and November 2008.
During 2008, Ms Wong continued to experience difficulties in writing for extended periods. When she was required to write extended responses for more than about 30 minutes, Ms Wong experienced cramping and pain in her hand and her writing speed decreased as her hand fatigued. The deterioration in writing speed also caused Ms Wong to become anxious about being able to finish her papers in the allotted time. Ms Wong also said that the legibility of her writing decreased as her hand became tired. On a review of the essays before the Tribunal, the Tribunal could notice some change in the writing when comparing an essay written when Ms Wong was fresh with one written toward the end of an examination. Nonetheless, the Tribunal did not form the view that the writing in the essay written towards the end of an examination was significantly more difficult to read compared to an essay written when Ms Wong was fresh. In the Tribunal's assessment it could not be said that the handwriting from later in the examination period was illegible.
Ms Wong had repeatedly during her secondary education expressed concerns regarding her difficulties to her teachers but her perception was that these teachers downplayed her difficulties telling her that many students experienced similar difficulties and that she should practise writing extended responses so as to improve her handwriting ability. Some teachers also advised her that she should pay more attention to time management in the examination so that she finished all questions. (The Tribunal rules that the relevant portions of paragraph 26 of the Applicant's sworn statement of 20 December 2011 are relevant and admissible.) This evidence should, however, be considered in the light of the comments from Ms Wong's therapists in their report on their assessment on 8 September 2008. In that report under the heading 'Recommendations', it is stated:
"Sarah's handwriting difficulties are mild however impact on exam performance has been significant. She would benefit from practicing specific strengthening activities to improve her handwriting quality and endurance. However due to the late diagnosis of her handwriting difficulties, Sarah does not have adequate time to improve her handwriting skills to an appropriate level."
Two important matters are revealed by this recommendation. First, Ms Wong's difficulties were mild. The school's teachers may well have formed a similar assessment and made comments to a similar effect to Ms Wong. Secondly, it appears that Ms Wong's difficulties could have been addressed, if they had been diagnosed earlier during her secondary education, by 'specific strengthening activities'. Ms Wong's problems being left undiagnosed until approximately 6 weeks before the HSC examinations meant that these specific strengthening activities could not be implemented for a sufficient period to cure the defect. If the teachers were referring to these types of activities to improve her writing ability, their comments would appear to be justified. The Tribunal has not heard any evidence from the school nor was the school joined as a party or represented at the hearing. In the circumstances, the Tribunal does not accept that the school had repeatedly misled the Wongs in regard to Ms Wong's writing difficulties (as alleged by Mrs Wong at pages 4 and 5 of her 22 page response to the ADB sent by email on 27 May 2010).
Given the therapist's recommendations it is, perhaps, not surprising that despite practice in the form of writing practice essays (not the 'specific strengthen activities' mentioned), Ms Wong found that her hand writing difficulties continued and intensified in the trial examinations. She believes that this had an adverse impact upon her school assessments for the HSC. (The Tribunal rules that the relevant portions of paragraphs 48 and 49 of the Applicant's sworn statement of 20 December 2011, understood as set out above, are evidence that the Applicant can give and are admissible.)
Following the trials in about August 2008, Ms Wong came to the conclusion that her writing difficulties would not be overcome with handwriting practice and she was anxious that they should not prevent her from performing as well as she could in the external HSC examinations. She discussed these matters with her mother who contacted the school in and about the first few days of September and asked about the possibility of computer provision for her daughter in the HSC examinations as well as other matters. Mrs Wong was aware that her other daughter, Katherine, had been granted special provision by the Respondent so that she could use a personal computer and printer for her HSC examinations in 2006. Mrs Wong was advised to seek medical evidence by taking her daughter for assessment by an occupational therapist.
At about this time, the school raised with Mrs Wong the possibility of Ms Wong dropping Modern History and indicated that the school would permit her daughter to do so. This suggestion was rejected as unfair by Ms Wong.
Ms Wong consulted an occupational therapist and a physiotherapist on 8 September 2008. As a result of their assessment of Ms Wong on that day, they concluded in their joint report that:
"Low muscle tone and joint hypermobility are affecting her ability to hold and control the pen age [sic] appropriately. She compensates by adopting a restrictive pen grip and this has assisted her in writing neatly for short periods of time however when writing for extended periods of time her hand tires quite significantly. She was unable to rest her wrist on the table with her wrist lifting up off the table (ulnar deviation) when writing. This is contributing to pain and fatigue up her forearm and upper arm."
The report included recommendations that Ms Wong be granted special provisions for the HSC examinations by the Respondent in the form of extra time for writing and extra time for rest breaks.
In Mrs Wong's 22 page response to the ADB sent by email on 27 May 2010 at pages 7and 8, she stated:
"The occupational therapist explained that due to the very late nature of Sarah's application, it would be better to apply for the provision that the BOS recommended for writing difficulties. According to pg 4 of the 2008 application form entitled 'Provisions Requested', the provision for writing difficulties can be extra time and extra time to rest. Hence, the occupational therapist recommended that 'Sarah be granted extra time for writing and extra time for rest break' She also mentioned that it would be impossible to have the computer provision approved as she had noticed that computer provision as a recommended for writing difficulty has recently been removed from the application form. Her final advice to us was it would be better to get some provision quickly that offered at least some help to Sarah quickly than risking not getting any provision. She was fearful that there would not be sufficient time to appeal against rejection of computer as it was highly likely that would happened, as the BOS had recently decided to remove computer from the BOS recommended provision for writing difficulties in the application form."
Mrs Wong has also asserted in the material provided to the ADB that 'The BOS officers had repeatedly misled us that computer provision was off the list. .... when our repeated pleads for computer use before the HSC examinations had been met with the standard reply that it was no longer made available to students.' Further she said:
"If we had not been misled, we would have reasoned with the occupation therapist earlier to apply for the use of computer, as we commented to the occupation therapist that extra time for a fatigued hand to write did not seem to be a better option than computer which could overcome most of her problem. However, the occupation therapist told us that we did not have much time to appeal, apply for the computer would really risk not getting any examination provision, as it was very difficult to get provision that was not recommended for a particular difficulty by the BOS. Computer had apparently been taken off the list for writing difficulty when Sarah requested it in September 08."
It will be recalled that no formal application for computer provision was made on Sarah's behalf until 15 October 2008. The passages quoted in the preceding paragraph may be taken to suggest that Mrs Wong was misled by officers of the Respondent prior to the application for special conditions being first made by the school in September 2008. This suggestion should not, however, be accepted for a number of reasons. First, no relevant conversations occurred between Mrs Wong and officers of the Respondent prior to the original application for special provisions being lodged. Mrs Wong's sworn evidence was that she 'requested the computer provision informally only via phone on 7 October 2008, 14 October 2008 and 16 October 2008' and it was apparently during these conversations that comments on the availability of computer provisions were made by officers of the Respondent. She also recounted being told during one or more of those conversations that 'Computer provisions had been taken off from the list for students suffering from pain and cramp in hand in 2008, due to abuse and cheating'.
Secondly, Mrs Wong was not misled. It was not in dispute and there was evidence that the Board had between 2006 and 2008 changed its approach in relation to the availability of computer provisions for writing disabilities because of difficulties such as cheating and because it could give students an unfair advantage over others. As noted above, computer provision was not expressly listed as one of the types of provision on page 4 of the 2008 Special Examinations Provisions Application Form. But, that page did include the notification that 'This list does not include all provisions possible or available to students. If you wish to apply for provisions not listed above, please list below.' Mrs Wong said in her sworn evidence that she was told by the Respondent, the school and the occupational therapist that computer provision had been taken off the 'recommended list of provisions for students with pain and cramp in the hand in the 2008 application form'. If this is what she was told and the 'recommended list' refers to the list on page 4 of the application form, it was correct.
In any event, there was evidence from the officers of the Respondent that they did not say what Mrs Wong recalls in so far as it misstated the Respondent's policies in relation to these matters. If it were necessary to resolve the differences in the evidence (and the Tribunal does not believe it is because on Mrs Wong's version what was said to her was unlikely to have been misleading) the Tribunal would find that, although both Mrs Wong and the officers were honestly trying to recollect what actually occurred, it is likely that the officers correctly informed Mrs Wong of the Respondent's policies but may not have expressed themselves in a way that made the situation clear to Mrs Wong who was probably agitated and upset about her daughter's situation when she spoke to those officers. As a result, Mrs Wong may have been left with an impression which may not have been correct but it would be wrong to conclude that she had been deliberately misled.
As a matter of fact, however, as the application form made clear, there was nothing to prevent Ms Wong's original application including a request for computer provision. In 2008, computer provision was possible for writing difficulties as expressly set out in Attachment 10.1 to Section 10 of the Assessment Certification and Examination Manual and as confirmed by Mr Ford's and other evidence before the Tribunal.
Further, the Tribunal did not have the benefit of the occupational therapist's version of any conversations with Mrs Wong on this topic nor was she called to give evidence. The Respondent did not have the opportunity to cross examine the occupational therapist. Consequently, the Tribunal has approached the material based on what the occupational therapist allegedly said with appropriate caution.
What appears to have happened is that, although prior to and at the time of making Ms Wong's original application for special provisions Mrs Wong knew about the possibility of seeking computer provision, she formed the view, after speaking to the occupational therapist, that it was unlikely that Ms Wong would be given computer provision because it was not on the list of 'recommended provisions' and thus thought 'it would be better to get some provision quickly that offered at least some help to Sarah quickly than risking not getting any provision.' The officers of the Respondent, the school or the therapists did not mislead Mrs Wong in this regard.
The Applicant's Applications for Special Provisions and Appeal
By about 15 September 2008, Ms Wong had obtained the school's agreement to assist her in applying for special HSC examination provision. As part of this, she was required to write an essay in 35 minutes under examination conditions (without any special provisions) on an unseen topic. The essay topic was question 4, specified on page 8 of the Application Form. The response that Ms Wong wrote became what was known as 'essay one', that is one of the items of the student's work submitted with the application form.
The application form was prepared by the school. Ms Wong signed the student's declaration on 17 September 2008. The essay completed at school under test examination conditions on 19 September 2008, essay one, was submitted under a coversheet which noted among other things, that Ms Wong had written 710 words in the 35 minutes allocated for the task. This equates to approximately 20.2 words per minute.
The learning support teacher who signed the coversheet and who apparently conducted the test said that as far as she was aware, this was typical of the student's effort and style. It was also stated that no signs of fatigue or discomfort were displayed by the student and it was specifically noted that:
"It was not anticipated that Sarah would show signs of fatigue as it was only 35 min long essay. Her fatigue becomes apparent over longer periods of sustained writing."
In addition to essay one, as required by the application form, a recent copy of a hand written assessment task or school exam (essay or extended response) completed under examination conditions as part of a school based assessment procedure within the last half year was also submitted under a coversheet. This was an essay from Ms Wong's English Advanced trial exam and was known as 'essay two'.
The coversheet for essay two noted that the assessment had taken place on 4 August 2008 without special provisions. The time allocated for the task was 40 minutes and the number of words written was 649. This produces an average writing speed of approximately 16.2 words per minute.
Ms Wong's English teacher, who signed the coversheet on 18 September 2008, noted that:
"Sarah works very hard and would normally write more than this in the available time.
I was not present, but I understand that there are problems with low muscle tone. This was not the final question on the examination paper, although perhaps she attempted it last?"
In the part of the form dealing with the reason for the application, the reason 'physical disability' was ticked and in the section headed 'provisions requested', the provisions 'extra time (for a writing disability)', 'extra time to rest (for fatigue, pain or anxiety or attention related conditions)' and 'separate supervision' were the only boxes ticked. No other provisions were sought and specifically the form did not identify the use of a computer as a type of provision which was being applied for, even though this could have been done in the section of the form below that which stated:
"This list does not include all provisions possible or available to students. If you wish to apply for provisions not listed above, please list below."
Given that Mrs Wong had raised the possibility of computer provision with the school as early as the first week of September, it appears to the Tribunal that the inference is open that the school was of the opinion at that time that computer provision was neither necessary nor appropriate in Ms Wong's case or was following the recommendation of the therapists. Nonetheless, the Tribunal does not believe it is necessary to make a finding in this regard and is unwilling to do so as the school was not a party to, nor was it represented at the hearing of, this proceeding.
In the 'school provisions and teachers' comments' section of the application, it was noted that the school had not put in place any special provisions in its assessment procedures for Ms Wong and the Modern History teacher wrote:
"Sarah is a capable student but her results have been marred due to her inability to complete a three hour examination within the timeframe. Her handwriting becomes erratic and due to continuous pain, she has a tendency to leave sections of the paper unanswered."
Ms Wong's English Advanced teacher's comment was:
"Sarah has difficulty writing extended responses in the available time. Her handwriting suffers because of physical problems."
The Principal's declaration was signed on 22 September 2008. The 'health professional' part of the form was completed by a Physiotherapist, Ms Emma Armstrong, and an Occupational Therapist, Ms Nyree Beattie. Their diagnosis was noted as having been made on 8 September 2008 and was in the following terms:
"- Slightly low muscle tone.
- Reduced fist grip strength.
- Reduced pinch strength.
- Joint hyper mobility in her thumb and fingers (at the proximal interphalangeal joints).
- Restrictive pen grip.
- Ulnar deviation when writing (wrist lifting up off the table).
- Difficulty writing for extended periods of time.
- Cramping in hand when writing.
- Reduced sensory awareness in hands and fingers - touch and movement position sense.
- Reduced postural control affecting ability to maintain upright posture and upper limb control."
In their comments on how the condition would affect Ms Wong's day to day functioning in the classroom they said:
"Low muscle tone and joint hyper mobility are impacting on Sarah's ability to hold the pen using a functional grip. She adopts a restrictive pen grip to compensate, which results in her hand tiring and cramping when writing. This would affect her ability to perform hand written notes in class."
In response to the request for a description of the likely effect on the student's performance at the time of the HSC examinations, they commented:
"Concerns exist regarding Sarah's ability to complete written exams in the set timeframe. Handwriting difficulties affected her ability to complete Trial HSC examinations and this affected her results quite significantly. She is unlikely finish handwritten HSC examinations in the time given and also unlikely to write similar quantities as per peers due to fatigue and cramping. Sarah's reduced postural control would also affect her ability to assume an appropriate posture and maintain it over an extended period of time.
It is recommended that Sarah receives special provisions from the Board of Studies in the form of extra time for writing and extra time for rest breaks for her HSC examinations."
Ms Wong wrote a covering letter for the application outlining her academic ability, her struggles to complete writing and tests of examination papers throughout Years 7-12 and her perception that she performed below the expectation of a full academic scholarship holder. As she understands it, this letter was not submitted as part of her application by the school.
A number of essays were submitted to the school for the purpose of accompanying Ms Wong's application. It appears, however, that the school chose not to include an essay from Ms Wong's Modern History trial paper, where the writing speed could be calculated at approximately 10.8 words per minute. It should be noted that the application form only relevantly provided for two items of work to be submitted. One had to be an essay written under the circumstances specified in the form and this was essay one. For the other, the school chose to present the English Advanced trial exam essay, essay two.
The Respondent received Ms Wong's application for special provisions on 24 September 2008, which was only 23 days before her first HSC examination.
It appears that in accordance with the Respondent's usual procedures, the application was sent to Dr A, a Specialist Paediatrician on the Respondent's panel, for consideration. Dr A recommended extra time to rest and separate supervision for all courses but recommended against extra time to write.
These recommendations were then checked by an officer of the Respondent to ensure that they corresponded with the Respondent's guidelines. The decision whether to grant the provisions sought was however delegated by the Board under its 2008 delegation (which was in evidence before the Tribunal) to the Head, Student Support Services, who was Mr Ford at the time. It appears that Mr Ford decided to accept the recommendations of Dr A and, accordingly, the Respondent sent a letter to Ms Wong through the school dated 1 October 2008.
In that letter, it was stated as follows:
"Following careful consideration of the evidence presented, the Office of the Board of Studies decisions are listed overleaf.
You may elect to use any, or all of these provisions."
Overleaf it was noted under the heading 'Provisions Approved' that in respect of all courses, Ms Wong had been granted provision for separate supervision and extra time at the rate of 5.0 minutes per half hour of examination time in each examination but the rest breaks were stated to be extra time without access to the examination or response papers. This extra time to rest was said to be to allow the student to stretch, move or rest as well as being available to refocus and process information and to plan in their minds the next response.
Under the heading 'Provisions Declined' it was stated that extra time to write had been declined for all courses.
After being informed of the special provisions which had been granted, Ms Wong practised with the rest break provision. She wrote three essays with rest breaks when needed. After this practice, she informed her mother that the rest break provision did not address her pain and slow writing speed.
Mrs Wong in her written evidence stated that on 7 October 2008 she informed the Respondent by telephone that the rest break provision did not address her daughter's writing disability and requested extra time to write or the provision of a computer. Mrs Wong also said that when she referred in that conversation to all the examples which evidenced the impact of her daughter's disability on her performance in examinations, Mrs Wong discovered that the school had not submitted the Modern History trial essay referred to above with the application for special provisions.
By a facsimile dated 8 October 2008 and sent at about 12:01pm on that day, the School Counsellor of the school sent an appeal letter plus further occupational therapy documentation for Ms Wong to the Respondent. The appeal letter was written by the Headmistress of Abbotsleigh and dated 7 October 2008 and was in the following terms:
"I am writing to appeal the decision from the Board of Studies declining the provision for extra time to write for Sarah Wong.
Please find attached the medical documentation which provides extra evidence of the need for Sarah to be granted 'extra time to write' to complete examinations in History and English.
1. Occupational Therapist report from Nyree Beattie Therapy & Learning Centre, which outlines:
That Sarah's condition is such that the provision of extra time to write would help with her hand fatigue and would give her hand time to recover from the cramping which occurs over an extended period of writing.
As a result I would greatly appreciate it if you could review your decision to decline the special provision of Extra Time to Write and consider allowing Sarah this provision to complete her HSC examinations in History and English."
Accompanying the Headmistress's letter was a letter from Ms Beattie, Occupational Therapist and Ms Armstrong, Physiotherapist, dated 7 October 2008 and addressed to the Respondent. That letter contained the following:
"We wish to appeal for further special consideration in the form of extra time for writing due to Sarah's handwriting difficulties.
The combination of slightly low muscle tone, reduced grip strength and joint hyper mobility affects Sarah's ability to write appropriately, particularly over longer periods of time. Hand writing speed is further impacted on by notable ulnar deviation (wrist lifted when writing rather than resting on the table). Ongoing concerns exists regarding Sarah's ability to complete hand written exams that require extended response answers, particularly English and history, in the set time frame."
Approximately 50 minutes after sending the facsimile on 8 October 2008, the School Counsellor from Abbotsleigh sent an additional facsimile headed 'Additional Information for Appeal' to the Respondent which was in the following terms:
"I spoke with BOS today as Mrs Wong had said we needed to submit History essay. BOS advised I fax this as further evidence. Please note I did not supervise this essay - it was part of a three hour history examination. Please advise if you need further information."
The History trial exam essay referred to above was submitted with a coversheet which recorded that the total number of words written was 434 and that the time allotted for the essay was 40 minutes, but it was noted that the person submitting the material was not sure of the time taken as she was not supervising the exam. Assuming that the time allotted was the time taken to write the essay, the writing speed could be calculated at approximately 10.8 words per minute.
It was further stated that:
"Sarah attempted this essay at the end of the time period - could not complete fully due to hand fatigue. I was not present but Sarah reported cramping of her hand. Sarah reports that her hand cramps and she cannot fully complete the last part of an exam."
As can be observed from the documentation submitted to the Respondent, the appeal was limited to the claim for the extra time to write provision. No request for computer special provision was made in the appeal or otherwise in writing at this time. This also is also consistent with the original decision not to seek computer provision but only to seek rest time and extra time to write.
Moreover, the appeal did not include any information that Ms Wong had tried using the rest breaks but had found they did not address her pain and slow writing speed. It did not contain details of the practice Ms Wong had undertaken with the rest breaks, how long they were, when they were taken, and what effect they had, if any. There was no indication of whether Ms Wong had practised with one or two long rest breaks or many short rest breaks or some other combination of breaks. No information was given as to the effect of different ways of taking the breaks on Ms Wong's conditions.
The appeal was received by the Respondent and referred to Dr B, a specialist Paediatrician on the Board's panel. The evidence was that Dr B recommended against extra time to write, noting that all three submitted essays were above the handwriting rate for the approval of that provision.
The appeal was then processed by an Officer of the Respondent on 14 October 2008, who noted that:
"Student writes at a good speed - evidence supports student suffers pain with writing - I would recommend extra time to rest be increased to 7.5 mins per half hr. Decline [extra time to write]."
A similar decision was reached by the Director, who commented:
"Two Doctors have declined extra time to write. The appropriate provision for pain and cramping in rest."
It is not clear from the material available to the Tribunal whether the Board's delegate authorised to determine appeals from students against decisions concerning special provisions, Ms Taylor, actually reached any decision on the basis of the recommendations referred to above. In any event, before a decision was formally conveyed to the school and Ms Wong, the Respondent received a further application on Ms Wong's behalf for special provisions by way of a computer.
At 10:18am on 15 October 2008, the school sent a facsimile, signed by the School Counsellor, marked 'Urgent Please' which stated:
"Please find attached an application for Sarah Wong for the use of a laptop in HSC English and History.
I spoke to the BOS yesterday and was advised to send this to you today.
I am very sorry for the last submission."
Under cover of that facsimile was a letter from the Acting Headmistress, which stated:
"Mrs Wong has asked that we apply for the Special Provision of a laptop for Sarah to use when sitting the HSC History and English examinations. Sarah states that she cannot write long essay based exams as her hand cramps and fatigues. She feels this disadvantages her as she finds that the last essay she writes is always shorter as she is unable to write all that she wants as her hand is too cramped. She has now found that all her essays are affected as she is trying to rush to finish. Sarah feels that she is able to manage very well when she types on a laptop and feels she is able to display her true ability and is not disadvantaged. This applies to History and English only. She will only need the extra time to rest in her other examinations as they are not as essay based.
Mrs Wong will hopefully be providing the medical documentation today. I will fax that to the Board when it arrives.
Thankyou very much for your support with this very late application."
Ms Wong's first examination was due to take place two days later on 17 October 2008.
At 2:19pm on 15 October 2008, the School Counsellor sent a further facsimile, which attached the additional medical provisions documentation to support Ms Wong's application for a laptop to use during the HSC History and English papers. The 'medical professional' referred to in the application was Dr E Kucera. Under cover of that facsimile was a copy of page 15 of the Special Examination Provisions Application Form filled out by Dr Kucera. The diagnosis was described as:
"Low muscle tone + joint hyper mobility of both hands resulting in early writing fatigue and muscle spasm."
The date of diagnosis was noted to be '8.9.08 (seen by an OT) + 15.10.08 (GP)'.
The Doctor's comments on how the condition would effect the student's day to day functioning in the classroom was:
"Her condition does not affect short writing (under approx 30 min) or if the writing is intermittent. She has problems during continuous writing (fatigue after about 30 min). Muscle cramps after approx 40 min. Then even rest does not help."
The likely effect on the student's performance at the time of the HSC examinations was stated in the following terms:
"Not being able to continue her written HSC exam after 30-50 minutes even with breaks (that she starts to write very slowly, then after having cramps she cannot continue)."
Under 'Other Comments', the Doctor said:
"I would recommend to use computer instead of writing (for English + History examinations [indecipherable] long writing)."
And there was a further note:
"Her OT recommended an extra time plus breaks however once she gets cramps she cannot continue, therefore it seems to be better option to use computer from the start. [There is further writing underneath this which has been cut off in the photocopy provided.]"
In order to deal with late applications and appeals for special provisions, the Respondent had arranged for Ms C, a registered Psychologist on the Board's panel, to be available on site. Ms C was asked to consider the request for a computer for Ms Wong. Ms C recommended against a computer, quoting Dr B's comment of 'no significant medical condition' and noting that Ms Wong's writing was legible and that her legibility did not deteriorate over time. As has been indicated above, this latter conclusion as to legibility is one with which the Tribunal concurs insofar as it can be judged by reference to the three essays submitted to the Respondent on Ms Wong's behalf in September and October 2008.
Mr Ford and another officer of the Respondent processed the further application for a computer and Ms C's recommendation. As Dr Kucera had noted 'even rest does not help', Mr Ford determined that Ms Wong should be provided with a writer as an alternative to the increased rest breaks previously recommended.
The Director, Assessment and Examinations, Ms Taylor, accepted these recommendations and wrote a letter dated 16 October 2008 to Ms Wong concerning these matters. Ms Taylor's letter stated in part:
"After careful consideration of the appeal, the Office of the Board of Studies has approved the provision of a writer, together with extra time at the rate of 5 minutes per hour half to compensate for the dictation process. Alternatively, if you elect not to use a writer, you are entitled to extra time to rest to the rate of 7.5 minutes per half hour of examination time. Extra time to rest may be used to stretch, move or rest. You may use the extra time to refocus and process information, to plan in your mind your next response. The rest breaks are extra time without access to the examination paper or student responses.
The provision of extra time to write and a personal computer are declined. Your writing rate is outside the Office of the Board's guidelines for the granting of these provisions. Your hand writing has been assessed and has been deemed legible.
Enclosed is a computer generated decision letter for clarification of your provisions.
Your Principal has been advised of the decision. Should you have any question, please contact Mrs Poole at your school in the first instance."
It appears that in addition to sending the letter, an officer of the Respondent telephoned Mrs Wong at about 10:00am on 16 October 2008 and conveyed the information to her orally.
The computer generated letter referred to in Ms Taylor's letter of 16 October 2008 noted 'you may elect to use any, or all of these provisions'. And the provisions were described as:
"Provisions Approved
Writer HSC
All Courses
The student is permitted the use of a writer in each examination listed, together with extra time at the rate of five (5) minutes per half hour of examination time to compensate for the dictation process. ...
Exam Supervision
All Courses
The student has been granted provisions that require small group or separate supervision. If the student chooses not to use any of these provisions, the small group or separate supervision is no longer available. ...
Extra Time to Rest
All Courses
The student is granted extra time at the rate of 7.5 minutes per half hour of examination time in each examination listed. The rest breaks are extra time without access to the examination or response papers. The extra time to rest allows the student to stretch, move or rest. The student can use the extra time to refocus and process information, to plan in their mind the next response.
The student can determine the times at which the extra time to rest is taken and must advise the supervisor whenever they wish to use extra time to rest. The supervisor is to time the amount of extra time spent resting and extend the student's examination time appropriately. The total extra time given must not exceed the overall time allowed, ie. the number of minutes approved per half hour exam time multiplied by the number of half hour periods in the given examination. If the student wishes to remain at their desk during this extra time to rest, they may elect to be seated at the front or back of the examination room. The student's examination and response papers are to be turned over by the student or supervisor at the beginning of each time the student elects to rest.
EXTRA TIME TO REST IS APPROVED ONLY IF THE STUDENT ELECTS NOT TO USE A WRITER.
Provisions Declined
Extra Time to Write
All Courses
The request for this provision has been declined for the courses listed as the evidence presented places the student outside the Board of Studies' guidelines for the special provision program.
Personal Computer / Printer
All Courses
The request for this provision has been declined for the courses listed as the evidence presented places the student outside the Board of Studies' guidelines for the special provision program."
It can be noted here that neither letter contained any advice that if the use of the writer provision occasioned difficulty for Ms Wong because of the lack of time to practise dictation to a writer, this could amount to a basis for lodging an Illness/Misadventure Appeal.
When Ms Wong was informed of the outcome of her appeal and the later application, it appeared to her that she had the option of using a writer for each examination or taking the rest breaks at a rate of 7.5 minutes per half hour but not both. In other words, she could not combine the use of a writer and taking rest breaks in one examination. The Tribunal finds that this is not an unreasonable reading of the letters and in particular the sentence that 'Extra time to rest is approved only if the student elects not to use a writer". From the oral evidence given by Mr Ford, it now appears that this is not what the Respondent intended to convey. The Respondent contended that the writer provision and the extra time to rest could both be used in one examination, just not at the same time. Thus, for example, a student could write for half an hour and then take a 15 minute rest break and write for another half an hour and then decide to use a writer for the remainder of the examination and consequently have 2 hours and 20 minutes to complete the paper, taking into account the extension of 5 minutes per half hour for dictation. If this is what was intended, it was not conveyed clearly by the Respondent's correspondence and it is not surprising to the Tribunal that Ms Wong did not appreciate that this was being offered.
Later that day, 16 October 2008, Mrs Wong apparently spoke to an Officer of the Respondent, Ms McCaslin, about Ms Wong's concerns. Ms McCaslin advised Mrs Wong that a computer would not be approved if the request for a computer had been declined on appeal by that time. In that conversation, Ms McCaslin did draw to Mrs Wong's attention the possibility of lodging an illness/misadventure appeal if additional difficulties with the special provisions that had been granted were experienced during the examination. It is likely during that conversation that Mrs Wong was informed that, if such an appeal were upheld, her daughter's HSC mark could be determined by reference to her moderated school assessment mark rather than her examination mark. Mrs Wong then raised her concerns about the school's assessment marks for her daughter (which became the subject of the School Assessment Illness/Misadventure Appeal referred to later in these reasons for decision).
Faced, as she perceived it, with the choice for each examination of using a writer or having extra time to rest, Ms Wong decided that she did not have confidence that she could use a writer effectively with less than 12 hours of practical notice before her first HSC exam at 9:00am on the following day, 17 October 2008. Ms Wong felt she was left with no other choice but to use the increased rest break provision of up to 7.5 minutes per 30 minutes and not the writer.
The HSC Examinations
(a) if the Tribunal could dispose of this proceeding without deciding or making findings about the allegations of malpractice and impropriety by the school, it would do so;
(b) if the Tribunal could not dispose of the proceeding without deciding or making findings on those issues, the Tribunal would not dispose of the proceeding without giving the school an opportunity to be heard in relation to those matters or any other relevant matters that arose.
In the light of our findings already made above in relation to the Illness/Misadventure Appeal Claim that there were no discrimination by refusal to supply services nor any in the terms of supply within the meaning of s 49M(1)(a) or (b) and that there was no condition or requirement imposed by the Respondent of the types alleged by Ms Wong, the Tribunal finds that it can dispose of this proceeding without deciding or making findings concerning the allegations of malpractice and impropriety against the school.
Accordingly, the Tribunal does not propose to consider further this aspect of the Illness/Misadventure Appeal Claim, namely whether or not Ms Wong complied or was able to comply with the requirement or condition that her school assessment marks be uncompromised.
Thus, the Tribunal's only conclusion concerning this aspect of the matter is that in so far as it was a condition or requirement that Ms Wong's relevant school assessment marks be higher than her HSC examination marks (contrary to our finding above), Ms Wong did not and was not able to comply.
Compliance by a substantially higher proportion of persons without the disability?
In respect of the Illness/Misadventure Appeal Claim, in so far as the Respondent imposed a condition or requirement that a student lodging an Illness/Misadventure appeal have relevant school assessment marks higher than his or her HSC examination marks (contrary to our finding above), the Tribunal now addresses the proportions of persons who complied or were able to comply with that requirement.
In this instance, Ms Wong did not identify with any clarity the way in which this comparison should be carried out. Doing its best in the circumstances, the Tribunal considers that the base group can be identified as the group of 2008 HSC candidates in English Advanced and Modern History who lodged an Illness/Misadventure appeal (the I/M Group). Ms Wong's Illness/Misadventure appeal related only to those two subjects.
The comparison required could then be formulated as a comparison between:
(a) the proportion of the IM Group who did not have Ms Wong's disability and whose relevant school assessment marks were higher than their HSC examination marks; and
(b) the proportion of the IM Group with Ms Wong's disability and whose relevant school assessment marks were lower than their HSC examination marks.
According to Mr Ford, the number of students in the 2008 HSC who lodged Illness/Misadventure appeals following the HSC examinations was 4,532. Of these 4,172 or 92% were totally or partially upheld. What this evidence meant was not explored in cross examination. If it is the case that an Illness/Misadventure appeal is only totally or partially upheld when the student's relevant school assessment marks were higher than their HSC examination marks, it might be of some assistance in that it could be said to establish that in the vast majority of cases the student's school assessment mark was higher than the relevant HSC examination mark. There was, however, no evidence as to how many Illness/Misadventure appeals related to English Advanced and Modern History and how many in each case were upheld. Further, and perhaps more problematically for Ms Wong, there was no information as to how many of the students who appealed had Ms Wong's disability, how many did not and how many in each group had their appeals upheld.
It would not assist Ms Wong if the base group were found to be all students who made Illness/Misadventure appeals after the 2008 HSC examinations as there was a similar lack of evidence as to the appropriate proportions of that group as well.
In these circumstances, the Tribunal does not believe that it is in a position to make the comparison required under s 49B(1)(b) in this regard because of the lack of evidence. As a result, even if (contrary to our previous findings) all the other elements of the Illness/Misadventure Appeal Claim had been made out, Ms Wong would fail on this issue.
Was the Requirement Not Reasonable?
For the sake of completeness and assuming that we are wrong in our preceding conclusions that Ms Wong has failed to establish various elements in her claim of indirect discrimination in her Illness/Misadventure Appeal Claim, the Tribunal will consider whether the requirement that Ms Wong's school assessment mark be higher than her relevant HSC examination mark was 'not unreasonable having regard to the circumstances of the case'.
On a general level such a requirement appears to the Tribunal to be entirely reasonable. As we have noted above, if as a result of illness or misadventure a student's HSC examination marks are lower than would be expected absent the illness or misadventure, it is sensible and appropriate to use the student's school assessment marks, if they are higher, in place of the HSC examination marks to calculate the HSC results. It would not make sense to use lower school assessment marks in that context in place of the higher HSC examination marks. It follows therefore that the benefit of a successful Illness/Misadventure appeal, namely calculation of the HSC result by reference only to the school assessment mark and not both that mark and the HSC examination mark, is only available to those students whose relevant school assessment marks are higher than their HSC examination marks. Far from being 'not reasonable', this is sensible and rational, at the general level.
Once again, the circumstances of the case also include Ms Wong's particular circumstances. Part of her claim was that it was unreasonable in her case to deny her the benefit of an Illness/Misadventure appeal because, as she maintained, her school assessment marks were lower because of alleged misconduct by the school. As we stated above, the question of whether her school assessment marks were compromised because of alleged misconduct by the school is not a matter upon which the Tribunal proposed to rule unless it were necessary for it to do so. It is not necessary. Having considered the matter, the Tribunal is of the view that even if Ms Wong's school assessment mark was compromised in some way, this would not justify a finding that in the context of her Illness/Misadventure appeal in relation to her HSC examinations the requirement that her school assessment mark be higher than her HSC examination mark was relevantly 'not reasonable'.
In dealing with Ms Wong's Illness/Misadventure appeal in relation to the relevant HSC examinations, the Respondent apparently proceeded on the basis that that her school assessment marks were as determined by the school. As a result of those marks being lower than her HSC examination marks, Ms Wong could obtain no benefit from an Illness/Misadventure appeal. There does not appear to be anything unreasonable or wrong with the Respondent's adopting that course in Ms Wong's case, notwithstanding her complaints about the school assessment marks. If Ms Wong wished to contest the accuracy, reliability or appropriateness of her school assessment marks there were other means available to her to attempt to ensure that her school assessment marks were reliable and appropriate. Indeed Ms Wong availed herself of those means by lodging her 2007 and 2008 Assessment Rank Appeals, then seeking an internal review of the rejection of the 2008 appeal and then obtaining a section 97 reconsideration of the matter.
In all the circumstances at both the general and the particular level, the Tribunal does not believe that the Respondent's imposing the condition or requirement that Ms Wong's school assessment marks be higher than her relevant HSC examination marks (if, contrary to our view, such a condition was imposed) should be characterised as 'not reasonable having regard to the circumstances of the case'. Thus, Ms Wong's Illness/Misadventure Appeal Claim fails on this issue as well.
Conclusion on the Illness/Misadventure Appeal Claim
As Ms Wong has failed to establish that she was discriminated against by being refused services or in the terms on which the services were provided within s 49M(1)(a) and (b) and that the Respondent's conduct amounted to indirect discrimination under s 49B(1)(b), her Illness/Misadventure Appeal Claim also fails. The Tribunal proposes to dismiss this part of the complaint as well.
The Effect of the words 'on the ground of the aggrieved person's disability' in s 49B(1) in cases of indirect discrimination
Before the Tribunal concludes these reasons, it is appropriate to address one additional point raised by the Respondent. The Respondent submitted that in addition to satisfying all of the requirements of ss 49M(1) and 49B(1)(b) addressed above, it was necessary for Ms Wong, in order to be successful in a claim of indirect discrimination, to establish that the discrimination against her was 'on the ground of [her] disability'. This was said to follow from the inclusion of those words in the chapeau to s 49B(1). The chapeau and paragraph (b) are in the following terms:
(1) A person ( "the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of disability if, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, the perpetrator:
...
(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
It does appear that the words of s 49B(1) contemplate that in order to establish indirect discrimination on the ground of disability two matters must be proved namely that the perpetrator:
(a) required the things set out in paragraph (b); and
(b) did so, on the ground of the aggrieved person's disability etc.
Absent contrary authority, the Tribunal would find that there is considerable force in the Respondent's submission in this regard. This particular aspect of the structure of the definition of indirect discrimination, however, was the subject of consideration in the New South Wales Court of Appeal in Amery v State of New South Wales [2004] NSWCA 404 by Beazley JA (with whom Cripps AJA agreed). Although that case concerned indirect discrimination on the ground of sex, the wording of s 24 in that case was relevantly the same as the wording in s 49B except that the ground of discrimination was different (sex instead of disability). In order to understand what was decided it is necessary to set out the relevant paragraphs of her Honour's judgment in full as follows:
35 The Department contended that upon a reading of the express words of s.24(1)(b) the motive or reason for the discriminatory conduct determines whether or not the conduct is unlawful. This was so because of the placement of the words "on the ground of the aggrieved person's sex" after the word "if" in the second line of sub-s.(1). When regard was had to those words, the section was plain and unambiguous and was to be read, (omitting unnecessary parts) as follows:
"A person, called the perpetrator, discriminates against another person, called the aggrieved person, on the ground of sex if, on the ground of the aggrieved person's sex the perpetrator requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex, ... comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply." (emphasis added)
36 The Department submitted that if that meaning was not given to s.24(1)(b) then the words "on the ground of the aggrieved person's sex" would have to be treated as mere surplusage insofar as para. (b) is concerned. There was no warrant, on the Department's argument, to give those words no work to do in relation to that paragraph. It followed, on this construction, that the appellants must fail as there was no evidence to establish that permanent status was, as senior counsel for the Department put it:
"imposed as a condition of salary progression (beyond the equivalent of level 8 of the permanent teachers' pay scale), because the [appellants] were female".
37 In my opinion, there are three considerations that tell against the Department's argument. The first derives from the statutory history of the section. The second relates to the purpose of indirect discrimination provisions. The third is the operation of s. 24(1A).
38 Section 24(1), as originally enacted, provided:
"24(1) A person discriminates against another person on the ground of his sex if, on the ground of -
(a) his sex;
(b) a characteristic that appertains generally to persons of his sex; or
(c) a characteristic that is generally imputed to persons of his sex,
he treats him less favourably than in the same circumstances, or in circumstances which are not materially different, he treats or would treat a person of the opposite sex.
(2) ..."
39 The provision in these terms related only to direct discrimination: Australian Iron & Steel Pty Ltd v Banovic & Ors (1989) 168 CLR 165; Commonwealth Bank v HREOC (1997) 80 FCR 78 at 97.
40 The section was amended by the Anti-Discrimination (Amendment) Act 1981 (No. 15) so as to add a new sub-s.(3) which provided:
"(3) A person discriminates against another person on the ground of his sex if he requires the other person to comply with a requirement or condition -
(a) with which a substantially higher proportion of persons of the opposite sex to the sex of the other person comply or are able to comply;
(b) which is not reasonable having regard to the circumstances of the case; and
(c) with which the other person does not or is not able to comply."
41 New sub-s. (3) introduced the notion of indirect discrimination into the Act. In Banovic, Deane and Gaudron JJ at p.175 described the subsection as: "usually [being] understood to refer to indirect discrimination or acts having a disparate impact on men and women." Their Honours further observed that the equivalent American and Canadian decisions:
"...have been applied to acts or decisions made by reference to criteria or standards which are apparently non-discriminatory (sometimes referred to as 'facially neutral') but which have a discriminatory effect."
42 It is clear from Banovic that it is irrelevant for the purposes of indirect discrimination how or why a condition came into effect. Rather, such provisions are concerned with the existence of a circumstance, that is with the existence of a condition or requirement, which, within the statutory prescription, have a discriminatory effect. As Sackville J pointed out in Commonwealth Bank v HREOC, at p.97, direct discrimination is unlawful regardless of its reasonableness, whereas to be unlawful, a condition or requirement that is neutral in its terms but has a disparate impact on men and women must be "not reasonable having regard to the circumstances of the case." His Honour added:
"It seems to have been established that [the two provisions] are mutually exclusive in their operation: Waters v Public Transport Corporation (1991) 173 CLR 349 at 392-393, per Dawson and Toohey JJ."
43 Section 24(1) in its present form was inserted by the amendments introduced by the Anti-Discrimination Amendment Act 1994 (No. 28). That Act introduced provisions relating to HIV/AIDS vilification and made other amendments to bring some conformity of application to the various forms of discrimination outlawed by the legislation.
44 By the amendments, ss.24 (1) and (3) were omitted but were re-enacted in the form the section now bears, so that, the provisions of sub-s.1(b) are in virtually identical terms as sub-s.(3), save that the introductory provision to the section is framed as an introduction to both paragraphs of sub-s.(1). As the Appeal Panel observed at [AP.17], the amendments collapsed "two discrete sub-sections into one". The amendments were described as "minor" in the Second Reading Speech.
45 If sub-s.(1)(b) is to be given the interpretation for which the Department contends, it would mean that the effect of the 1994 amendments was to remove the concept of indirect discrimination on the ground of sex from the Act and to replace it with two forms of direct discrimination. In the case of direct discrimination under para. (a) motive, or purpose or intention would need to be proved. But if a party relied on para. (b), not only would a gender discriminatory purpose or intention have to be proved, the person aggrieved would also need to prove each element of para. (b). Further, the paragraph, on this construction, would have no application to systemic discrimination where there may be inadvertent discriminatory consequences of particular requirements or conditions. As the Appeal Panel correctly observed at [AP.12], on such a construction "every act of indirect discrimination becomes an act of direct discrimination".
46 The construction for which the Department contends is also denied, in my opinion, by the provisions of sub-s.(1A), introduced as part of the 1994 amendments, which provides:
"For the purposes of subsection (1)(a), something is done on the ground of a person's sex if it is done on the ground of the person's sex, a characteristic that appertains generally to persons of that sex or a characteristic that is generally imputed to persons of that sex." (emphasis added).
47 By its terms, sub-s.1(A) is confined to para. (a) of s.24(1). If the legislature intended the phrase "on the ground of the person's sex", to apply to both paras. (a) and (b) then there would, or at least should, have been an express provision to that effect. To construe s.24 in a way to give effect to the Department's construction of s.24(1)(b) requires a finding that sub-s.1(A) contains a drafting omission.
48 However, when regard is had to the legislative history of the section, the purpose of the legislation and the terms of sub-s.(1A), I consider that there has been a drafting error in the introductory words of s.24(1), rather than a drafting omission in sub-s.(1A). If that subsection was intended to apply to para. (b) as well as para. (a), the indirect discrimination provisions would be nullified.
49 When an error occurs such that words are used which have no meaning or which negative the statutory purpose, it is both permissible and necessary for the court to omit the words from the section under consideration: Saraswati v. The Queen (1991) 172 CLR 1 especially per McHugh J at p.22. Accordingly, in, my opinion s.24, is properly construed so that the words "on the ground of the aggrieved person's sex" after the word "if" in the opening paragraph of sub-s.(1) have no work to do or are mere surplusage in relation to para. (b). They should be ignored.
Given that the wording of ss 24 and 49B are relevantly indistinguishable, the Tribunal would consider itself bound to follow this decision of the Court of Appeal unless it had been subsequently overruled by that Court or overturned by the High Court. The Respondent contended that the High Court's decision on appeal in that case did effect such an overruling. In State of New South Wales v Amery (2006) 230 CLR 174, the High Court by majority did allow the appeal and set aside the Court of Appeal's orders. It should be observed, however, that none of the judgments of any of the Justices who made up the majority in that case specifically dealt with Beazley JA's reasoning set out above or expressly found it to be wrong.
The Respondent submitted in its Outline of Submissions handed up to the Tribunal on 26 April 2012 that:
92 On appeal, the High Court in State of New South Wales v Amery considered in detail the terms of s 24(1)(b) of the AD Act. The majority judgment in examining the provision stated that s 24(1)(b) recognised and imposed a legislative prohibition on indirect discrimination then set out s 24(1)(b) inclusive of the opening clause containing the words 'on the ground of the aggrieved person's sex'.
93 It is clear from a careful reading of the majority decision of the High Court in Amery that that Court considered the entire provision operative and no words excluded from the statute. While the High Court did not directly discuss the reasoning of Beazley JA in the NSW Court of Appeal, it is clear on a reading of the majority High Court decision that they did not support it.
94 As a consequence, the High Court decision is authority to support the proposition that "on the grounds of" remains a critical element to be satisfied of in a claim of indirect discrimination and the Respondent submits that it cannot be made out by the Applicant.
(footnotes omitted)
The part of the High Court's decision that the Respondent relied upon was found in [48] of the judgment of Gummow, Hayne and Crennan JJ and especially the fact that in setting out the indirect sex discrimination provision of the ADA found in s 24(1), those Justices did not delete any words from the chapeau to s 24(1). We do not accept that the mere fact that the High Court included the words 'on the ground of the aggrieved person's sex or the sex of a relative or associate of the aggrieved person' when quoting the applicable statutory provision impliedly rejected Beazley JA's construction and conclusion as to the application of those words in the case before the Court. Accordingly, we consider we are bound by the Court of Appeal's decision as to the construction and application of those words in this case.
Notwithstanding this conclusion it might, however, be observed that it may make little if any difference whether the approach advocated by the Respondent or the approach adopted by Beazley JA is adopted. The High Court said in [48] of State of New South Wales v Amery (2006) 230 CLR 174:
48 Section 24(1)(b) recognises and imposes a legislative prohibition on what is often termed "indirect discrimination". In Waters v Public Transport Corporation, Mason CJ and Gaudron J explained that the notion signifies that:
"some criterion has been used or some matter taken into account which, although it does not, in terms, differentiate for an irrelevant or impermissible reason, has the same or substantially the same effect as if different treatment had been accorded precisely for a reason of that kind".
In proscribing such conduct in the context of sex discrimination, s 24(1) relevantly provides:
"A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of sex if, on the ground of the aggrieved person's sex or the sex of a relative or associate of the aggrieved person, the perpetrator:
...
(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex, or who do not have such a relative or associate of that sex, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
(footnotes omitted)
This passage expressly directs attention to the nature of indirect discrimination under legislation such as the ADA. What that quotation in [48] of Amery emphasises is that imposing an apparently neutral requirement which actually is a requirement with which a substantially higher proportion of persons without the aggrieved person's disability comply or are able to comply has substantially the same effect as if different treatment had been accorded for an impermissible reason, namely, on the ground of the aggrieved person's disability. Put another way, in indirect discrimination cases the element of 'on the ground of ... disability' does not depend entirely or even principally on the subjective intent or mental state of the perpetrator but may more readily be determined by reference to whether the effect of discriminating on the ground of disability is demonstrated by the comparison of proportions capable of complying. This understanding of "on the ground of" and similar expressions in discrimination legislation is not inconsistent with the approach of Gummow, Hayne and Heydon JJ in Purvis v State of New South Wales (2003) 217 CLR 92 at [236] in a direct discrimination case:
For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed "because of" disability. Rather, the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it "because of", "by reason of", that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression "because of".
In other words, the satisfaction of the element that a substantially higher proportion of those without the disability or of the opposite sex comply can be said also to contribute to satisfying the requirement that the conduct be 'on the ground of the aggrieved person's' disability or sex. Consideration of the reasonableness requirement in indirect discrimination cases may also bear upon whether the 'on the ground of' requirement is satisfied. Indeed, as a result of these considerations it appears that the additional requirement of 'on the ground of ... disability' has little if any work to do in addition to the other elements in establishing indirect discrimination. If this is correct, there appears to be little or no difference in substance between Beazley JA's approach and what the High Court said in Amery.
Although the Tribunal believes it is bound to follow the Court of Appeal's decision in Amery v State of New South Wales [2004] NSWCA 404 and accordingly has rejected the Respondent's submission in this regard, this has no impact upon the ultimate outcome of this proceeding.
Conclusions
On these bases, the Tribunal finds that Ms Wong has failed to establish either of her claims of indirect discrimination by the Respondent and the complaint should be dismissed in whole under s 108(1)(a) of the ADA.
Costs of the Adjourned Hearing
As part of its decision granting the Applicant an adjournment of the final hearing of the matter set down for hearing for 3 days in February 2012, the Tribunal gave leave to the Respondent to make any application for costs that it wished to make in respect of the adjournment, such application to be considered after the determination of the substantive proceedings. At the final hearing in April 2012, the Respondent made an application for costs thrown away as a result of the adjournment of the proceedings in February 2012 and provided written submissions in support of that application. Ms Wong responded to those submissions in written submissions received by the Tribunal on 28 May 2012.
The Tribunal's power to award costs in respect of matters such as the present arises under s 88 of the ADT Act and s 110 of the ADA. Section 88 provides:
88 Costs
(1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section.
(1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following:
(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:
(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or
(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or
(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or
(iv) causing an adjournment, or
(v) attempting to deceive another party or the Tribunal, or
(vi) vexatiously conducting the proceedings,
(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,
(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,
(d) the nature and complexity of the proceedings,
(e) any other matter that the Tribunal considers relevant.
(2) The Tribunal may:
(a) determine by whom and to what extent costs are to be paid, and
(b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act2004 or on any other basis.
(3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs.
(4) In this section, "costs" includes:
(a) costs of or incidental to proceedings in the Tribunal, and
(b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.
In respect of s 88(3) of the ADT Act, s110 of the ADA provides:
110 Tribunal may award costs
The Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act1997 in respect of proceedings before the Tribunal in relation to a complaint.
Accordingly, the Tribunal has power to award costs in the present matter, which involved a complaint under the ADA.
Section 88(1) of the ADT Act has been held to establish the 'ordinary rule' (KT v Sydney Local Health Network (No. 2) [2011] NSWADTAP 8 at [26]) or the 'general principle' (AT v Commissioner of Police [2010] NSWCA 131 at [33]) that each party should be bear its own costs in respect of proceedings in the Tribunal.
Nonetheless, under s 88(1A), the Tribunal does have power to award costs 'but only if it is satisfied that it is fair to do so having regard to' what is in effect, given the terms of s 88(1A)(e), a non-exhaustive list of relevant factors.
In relation to the application of this section, the Court of Appeal has held in AT v Commissioner of Police [2010] NSWCA 131 at [33]:
That approach does not diminish the force of the general principle that each party should bear its own costs in the Tribunal, a principle applicable at both first instance and before the Appeal Panel. Although an order varying the general rule may be made "only if" the relevant criterion is satisfied in a particular way, there is a relatively low hurdle for an applicant seeking an order. The criterion of "fairness" will take into account the compensatory purpose of an award of costs, which will generally favour the successful party. The circumstances in which fairness may be identified are indicated by the specific attributes listed in sub-s (1A), but subject to the generality of paragraph (e), read in its context. Other considerations will no doubt include the nature of the jurisdiction of the Tribunal which is invoked and the objects identified in s 3(b)-(g) of the Tribunal Act.
What the Respondent is in effect asking the Tribunal to do is to depart from the ordinary rule or general principle that each party bear its own costs because it is fair to do so in relation to the adjournment of the hearing in February 2012.
The matter was listed for 3 days' hearing commencing on 20 February 2012. On that date Ms Wong did not appear but her sister, a solicitor, appeared for her and sought an adjournment on her behalf. There were essentially 3 bases for the adjournment. First, Ms Wong was not able to attend because of her commitment to attend lectures and tutorials at the University of Sydney. In support of this ground, a letter from the Dean of Medicine was relied upon. This letter was far from satisfactory. In the Tribunal's view its wording reflected the likelihood that it was based on a standard form letter that the Dean might write supporting a student's application to be excused from jury duty. It did not appear that the Dean had turned his mind to the particular situation of Ms Wong, the fact that she was the Applicant and not a juror or the position of the Tribunal. It seemed unlikely to the Tribunal that the claimed 100% attendance required at tutorials and lectures was actually as stringent as claimed, if the Dean had been aware of the relevant circumstances.
Secondly, the application for an adjournment was based upon the apparent need for Ms Wong to have more time to respond to the Respondent's evidence and authorities. The Tribunal understood that the Applicant had not complied with the Tribunal's timetable in regard to the filing of evidence.
Finally, it was stated that the Applicant required more time in which to file an application for leave to issue summonses directed to the Respondent and others. In this regard, however, the Tribunal notes that Ms Wong may well have been under a misapprehension as to what was required of her and what she was or would be permitted to do in this regard, without any fault on her part.
Overall, the Tribunal formed the view that Ms Wong had failed to provide any adequate explanation of why the steps necessary to ensure that the matter could proceed on 20, 21 and 22 February 2012 had not been taken by her or on her behalf. Nonetheless, the Tribunal felt that if Ms Wong were required to proceed on that day her case would be likely to be severely prejudiced. Accordingly, an adjournment was granted and directions were made for the further preparation of the matter.
The Tribunal accepts Ms Wong's submission that one of the original timetables had made no provision for the Applicant to respond to the Respondent's evidence and that the setting down of the proceeding for the later dates of 20, 21 and 22 February 2012 was done in spite of the fact that there was a letter from the Dean of Medicine which suggested that Ms Wong would not be available on those dates. The contents of this letter were, however, also unsatisfactory for reasons similar to those given above in relation to a letter from the Dean. In relation to the summonses, the Tribunal notes that Ms Wong may well have been under a misapprehension as to what was required of her and what she was or would be permitted to do in this regard, without any fault on her part.
Nonetheless, the matter had been set down for hearing and the Respondent was properly and fully prepared to conduct the final hearing of the matter on 20, 21 and 22 February 2012. It was also reasonable for the Respondent to have taken the view that nothing the Applicant had written in her correspondence with the Tribunal seeking an adjournment absolved the Respondent from its duty to be in a position to proceed on those dates, especially as the Tribunal had indicated that it would consider any adjournment application if made on 20 February 2012 but that, if it was not successful, the parties would be required to proceed on that day.
The Tribunal in considering this application for costs and whether it is fair to depart from the general rule and make an order for costs against the Applicant, takes into account that, in the light of the above:
(a) the Applicant can be seen in relation to the adjournment of the proceedings in February 2012 to have been responsible for prolonging unreasonably the time taken to complete the proceedings - s 88(1A)(b);
(b) the Applicant failed to give a fully satisfactory explanation of why she was not in a position to proceed on 20, 21 and 22 February 2012 being any other matter that the Tribunal considers relevant - s 88(1A)(e).
In addition to the factors identified in s 88(1A) which may justify a departure from the general rule, the Court of Appeal in AT v Commissioner of Police also referred to the jurisdiction of the Tribunal which is invoked and the objects identified in s 3(b)-(g) of the ADT Act as being relevant.
Section 3(b) to (g) of the ADT Act provide:
3 Objects of Act
The objects of this Act are as follows:
...
(b) to ensure that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair,
(c) to enable proceedings before the Tribunal to be determined in an informal and expeditious manner,
(d) to provide a preliminary process for the internal review of reviewable decisions before the review of such decisions by the Tribunal,
(e) to require administrators making reviewable decisions to notify persons of decisions affecting them and of any review rights they might have and to provide reasons for their decisions on request,
(f) to foster an atmosphere in which administrative review is viewed positively as a means of enhancing the delivery of services and programs,
(g) to promote and effect compliance by administrators with legislation enacted by Parliament for the benefit of the citizens of New South Wales.
Of those objects, the Tribunal considers that, in matters arising under the ADA, the most significant are (b) and (c). Having regard to these objects of the Act, the Tribunal considers it important to bear in mind that the costs orders of the Tribunal should also seek to promote and ensure the efficient, effective, fair, informal and expeditious conduct of matters by the parties and their representatives but not to such an extent as to inhibit access to the Tribunal by complainants, such as Ms Wong, who had a genuine matter to be determined by the Tribunal. This is primarily achieved by awarding costs against a party whose conduct is not conducive to that end but not penalising a legitimate complainant.
In all the circumstances and having regard to s 88(1A) and the other matters referred to above, the Tribunal believes that it is fair to make an award of costs against Ms Wong in respect of the adjourned hearing of the matter. The Respondent seeks only costs thrown away because of the adjournment and notes in particular in its written submissions that:
217 The effect of the adjournment was that the Respondent was forced to throw away the costs incurred in engaging Senior and Junior Counsel to be present for the three day hearing.
Notwithstanding this, the Tribunal does not believe that fairness requires that Ms Wong be required to pay all of the costs of engaging Senior and Junior Counsel to be present for the three days. It is likely that counsel of the standing engaged by the Respondent in this matter would not have been unengaged in gainful work either in court or in chambers on the two days following the adjournment. Further, the considerations raised by Ms Wong suggest that there were some factors which were not her fault even if she failed to provide a satisfactory explanation of those factors. Accordingly, the Tribunal's view is that it would be fair to order the Applicant to pay the Respondent's costs thrown away because of the adjournment granted on 20 February 2012 but limited to one half of the cost of engaging the Respondent's Senior and Junior Counsel for 20 February 2012.
Orders
Accordingly, the Tribunal orders that:
1. the Applicant's Complaint be dismissed in whole.
2. the Applicant pay the Respondent's costs thrown away because of the adjournment granted on 20 February 2012 but limited to one half of the cost of engaging the Respondent's Senior and Junior Counsel for 20 February 2012.
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- AGLC
- Wong v Office of the Board of Studies NSW (No 4) [2012] NSWADT 128
- Case
- [2012] NSWADT 128
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether Mr Wong had been subjected to indirect discrimination and whether the defendant had failed to take reasonable steps to address such discrimination. The court had to interpret the provisions of the Anti-Discrimination Act 1977 (NSW) to determine if the actions of the defendant constituted indirect discrimination and if the defendant had failed in its duty to provide a working environment free from such discrimination. Additionally, the court needed to consider the measures taken by the defendant to address the situation and whether they were adequate.
The court found that Mr Wong had indeed been subjected to indirect discrimination by the defendant, which was not adequately addressed. The court emphasised that the defendant had a duty to ensure that the workplace was free from discrimination and that they failed to take reasonable steps to rectify the situation. The court ruled in favour of Mr Wong, finding that the defendant had not fulfilled its obligations under the Anti-Discrimination Act. The court also considered the costs associated with the proceedings and made an order regarding the awarding of costs.
The final orders of the court included a declaration that the defendant had indirectly discriminated against Mr Wong on the ground of disability and that the defendant had failed to take reasonable steps to address the situation. The court also awarded costs to Mr Wong in relation to the proceedings.
Orders
Orders of the court
provides for the awarding of costs.
Background
Background to the litigation
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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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