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Purvis v State of NSW (Department of Education and Training) & Anor S189/2002 [ 2002] HCATrans 564  (5 November 2002)

Sydney No S189 of 2002

B e t w e e n -

ALEXANDER PURVIS on behalf of DANIEL HOGGAN

Applicant

and

STATE OF NEW SOUTH WALES (DEPARTMENT OF EDUCATION AND TRAINING)

First Respondent

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

Second Respondent

Application for special leave to appeal

GLEESON CJ

GUMMOW J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 5 NOVEMBER 2002, AT 9.32 AM

Copyright in the High Court of Australia

MR S.J. GAGELER, SC: If the Court pleases, I appear with MS K.L. EASTMAN for the applicant. (instructed by Legal Aid Commission of New South Wales)

MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales If the Court pleases, I appear with my learned friend, MS C.A. RONALDS, for the first respondent. (instructed by the Crown Solicitor for the State of New South Wales)

MR J. BASTEN, QC: If the Court pleases, I appear for the second respondent. (instructed by the Human Rights and Equal Opportunity Commission)

GLEESON CJ: Yes, Mr Gageler.

MR GAGELER: Your Honours, in the appeal book at page 205, line 40, your Honours see the statement of Sir Ronald Wilson in X v McHugh, a statement - - -

GUMMOW J: Made in what circumstances? Is he talking about the definition or a section in which the definition appears?

MR GAGELER: He is dealing with this Act, contrary to what the Full Court said.

GUMMOW J: Is he dealing with section 5?

MR GAGELER: He is dealing with section 5 and he is dealing with the interaction of section 5 and the definition of "discrimination" in section 4 paragraph (d).

GLEESON CJ: Using it in a particular way, of course, would beg the question, would it not, because he uses the verb "to discriminate".

MR GAGELER: Yes.

GLEESON CJ: He assumes that what is going on is discrimination.

MR GAGELER: Yes.

GLEESON CJ: That is the question in issue, is it not?

MR GAGELER: Your Honour, he is using "discrimination" in the sense of adverse treatment, so what he is saying is that to adversely treat - - -

GLEESON CJ: Hang on, it involves both adverse treatment and a comparison, does it not?

MR GAGELER: Absolutely, yes.

GLEESON CJ: Yes, so he says to treat somebody adversely in a way that amounts to discrimination, that is to treat somebody adversely in a fashion that you would not treat somebody else.

MR GAGELER: Yes. Your Honour, treating the word "discriminate" as used by Sir Ronald Wilson as referring to adverse treatment is clear enough.

GUMMOW J: Well, I do not know if it is clear enough, actually. You have to look at the section. Was there any discussion in this case about - this was a section 5 case, was it not?

MR GAGELER: Yes, it was a section 5 case and it was a section 4 - - -

GUMMOW J: Was there any discussion at any stage of the Steelworkers Case?

MR GAGELER: No, there was not, no.

GUMMOW J: Well, that says you have to read section 5 in a particular way. You have to find the true basis for the activity, does it not?

MR GAGELER: Yes, it does.

GUMMOW J: And was not the true basis here, on one view of it anyway, what appears in the book at 181, paragraph 5? It was the violence.

MR GAGELER: Absolutely, your Honour. There was no doubt that the child was excluded from the school because of his behaviour.

GLEESON CJ: And the question is whether that constitutes discrimination.

MR GAGELER: That is the question, that is the special leave question, your Honour.

GUMMOW J: I do not think it is quite the special leave question - - -

MR GAGELER: Well, your Honour - - -

GUMMOW J: Because the section is - wait a minute - the question is whether because of the aggrieved person's disability, because of.

MR GAGELER: Yes, I embrace that, your Honour.

GUMMOW J: The true basis of.

MR GAGELER: Absolutely. I do not dispute that. The question is what is the disability and the factual finding that your Honour the Chief Justice has referred to, that is that the child was excluded from the school because of his behaviour, has to be read with the evidence at page 186 - and this was not in dispute - line 11, Dr Wise's evidence:

"Daniel's intellectual disability and his behaviour and his visual difficulties and his epilepsy all result from severe brain injury which he sustained at about seven months of age.

GLEESON CJ: Now, if his behaviour had included repeated attempts to burn down the school, could he have been excluded lawfully?

MR GAGELER: Not under section 22. Your Honour, the difficulty with section 22 is that the defence that applies - - -

GUMMOW J: Wait a moment, what about section 5? I cannot get you to focus on section 5, Mr Gageler. You keep saying you agree with it.

MR GAGELER: Yes.

GUMMOW J: But, in fact, it contains poison pills for you, maybe.

MR GAGELER: Your Honour, if I can answer the Chief Justice's question and come back to your Honour's question?

GUMMOW J: It is my question, too, could this kid have been excluded if he had burned down the school?

MR GAGELER: No, not under section 22, on my submission.

GUMMOW J: But what about under section 5?

MR GAGELER: Well, section 22 invokes section 5. Section 5 has to be read relevantly with the definition of "disability". Your Honours will find that at page 183, section 4 "disability", most relevantly paragraph (g) which says a disability means, relevantly:

a disorder . . . that results in disturbed behaviour -

and our submission, very simply, is the disability, the defined expression, encompasses the disorder and the resulting disturbed behaviour. They are together part of the disability.

GLEESON CJ: But does that mean then that on the true construction of this Act, if the child had repeatedly tried to burn down the school, the school could not have excluded him?

MR GAGELER: Yes, and this is a hard case. The answer is yes, and the difficulty your Honour will see in the structure of section 22 of the Act at page 184 that the relevant unlawfulness is section 22(2)(b). There is a defence in section 22(4), but it only applies in a case where admitting the child to the educational institution "would impose unjustifiable hardship". If there is a defect in the Act it is that there is no defence that applies once the child is in the school.

GUMMOW J: Section 22 says "on the ground of", does it not?

MR GAGELER: It does.

GUMMOW J: So you have to read section 5 into it.

MR GAGELER: Yes, on the ground of a disability.

GUMMOW J: What is the answer to the question that the true cause is not the fact the child had this disability which manifested in this antisocial way, but because of the threat to the property of the State of burning it down?

CALLINAN J: And a threat to the other children also.

GUMMOW J: And to staff. I think the reason why we have not had cases like this before is that people have read and understood the Iron and Steel Case and the English cases too which say the same thing.

MR GAGELER: Your Honour, the position here was that the child was excluded because of his behaviour. The behaviour resulted from the underlying physical disorder and although there may have been other reasons lying behind the desire to exclude the child on the basis of his behaviour, excluding him on the basis of his behaviour if the behaviour was part of the disability constitutes discrimination.

GUMMOW J: No, it is because of the aggrieved person's disability.

MR GAGELER: Yes.

GUMMOW J: And that carries all sorts of baggage with it, that phrase.

MR GAGELER: Yes.

GUMMOW J: Which allows the intrusion of some commonsense, maybe.

MR GAGELER: Your Honour, I do not disagree with any of that. There is no doubt that this is a hard case because the facts are extreme, but the same principle, that is if the Full Court is here correct, then the principle gets applied in the more mundane case, the more common case, the case of schizophrenia, for example, which is a very common disease, the case of stroke, the case of multiple sclerosis, all of those conditions manifest themselves only in behaviour.

CALLINAN J: Multiple sclerosis usually does not involve any violence or threat to other people.

MR GAGELER: No, but it involves aberrant behaviour generally. It involves behaviour that - - -

CALLINAN J: I do not think it does, does it? I think that is a bad example. I think it does - I mean it is a very disabling illness but it involves weakness.

MR GAGELER: Absolutely, yes.

CALLINAN J: It does not involve any behavioural disorder.

MR GAGELER: The evidence is that it does, a behavioural disorder. Your Honour may have seen the evidence of - - -

CALLINAN J: Well, where is that?

MR GAGELER: Dr Lethlean, there has been an affidavit that has been filed on the special leave - - -

GLEESON CJ: Are you tendering that affidavit?

MR GAGELER: I do.

GLEESON CJ: You wish to argue in support of it? You can occupy your 20 minutes however you like, but do you wish to argue in support of that affidavit?

MR GAGELER: Yes, I do, your Honour.

GLEESON CJ: All right, go ahead and put the argument. Is it relevant to the issue in the case?

MR GAGELER: It is relevant to demonstrating the importance of the question that arises and its application to other illnesses, your Honour, and that is the only basis upon which I seek to tender the affidavit.

GLEESON CJ: Is there anything you want to add?

MR GAGELER: No.

GLEESON CJ: Yes, the affidavit is rejected.

MR GAGELER: If your Honour pleases. I can say this about the position of schizophrenia. That was the illness that was addressed by Sir Ronald Wilson in X and the Full Court here, in effect, have said that the approach taken by Sir Ronald Wilson is wrong, that distinction is to be drawn for the purposes of the Act - and this is the basis upon which this decision proceeds - between the disorder and the behaviour that results.

GUMMOW J: You may be right about that. You may be right about that, but it may be you should have failed for other reasons. That is what I have been putting to you, in effect.

MR GAGELER: Can I say your Honour may be right.

GUMMOW J: That would make it an inconvenient vehicle. That is the bottom line.

MR GAGELER: Your Honour may be right, but the question your Honour raises is, itself, an important one. It is not one that is being raised against us to this point at any point in the proceedings and nor is it raised in the submissions that we have come to deal with today.

GUMMOW J: Yes, I know, which rather amazes me, but there we are.

MR GAGELER: And in relation to it, your Honour has to take into account section 10 of the Act at page 185. This is your Honour's point, I think. Section 10 provides that:

"If:

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

(b) one of the reasons is the disability of a person . . .

then, for the purposes of this Act, the act is taken to be done for that reason."

So the fact that there may be other motivations lying behind the discriminatory conduct does not prevent it from being a discrimination.

Your Honours, I think I have said what I need to say in support of the application.

GLEESON CJ: Thank you, Mr Gageler. Mr Basten, it is probably convenient for you to go now.

MR BASTEN: We seek to support the application, your Honour. The point which is raised by this case derives from two particular factors we wanted to draw the Court's attention to. The first is, of course, that disability discrimination, as your Honours will be conscious, is not simply a question of making a decision lawful or unlawful on the basis of irrelevant considerations. The existence of a disability may well be a lawful consideration. It may need, however, to be accommodated and that is the purpose of the second limb of section 5 and the difficulty with the result in this case may be tested by - - -

GUMMOW J: What do you mean by the second limb of section 5?

MR BASTEN: Section 5(2) provides that the:

circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.

This received some consideration in X, the defence force case in this Court.

GUMMOW J: Yes.

MR BASTEN: If one then turns to the position of the school when being invited to admit a student who has a known psychological disability, the question is whether the school could simply ignore the likelihood of disturbed behaviour and say we do not need to consider whether or not we are able to accommodate that disturbed behaviour because if, at the end of the day, he demonstrates disturbed behaviour we can exclude him from the school without consideration of the need to accommodate and without consideration of whether or not that behaviour flows from his disability.

The reason why that is important is that were it otherwise section 5(2) would have no work to do. The reason why it does not arise directly in this case is because the boy has been admitted, and as Mr Gageler has noted, section 22(4) provides an exemption from the unlawfulness of the conduct only in relation to the decision to admit or refuse admission to the school.

The example that your Honour the Chief Justice gives undoubtedly demonstrates a significant flaw, on one view of it, in the scheme of the legislation, but that flaw should not be allowed to contaminate, as it were, the approach which is being taken in relation to the application of section 5 and the definition of "disability".

GLEESON CJ: Well, it is a pretty large flaw if you are right because you can think of any number of examples. If, for example, a child's disturbed behaviour consisted not of punching the boys but of sexually assaulting the girls, exactly the same problem would arise.

MR BASTEN: Yes, indeed. One can think of innumerable examples which are unacceptable.

GLEESON CJ: What is the school supposed to do about that?

MR BASTEN: Your Honour, the only answer is that it should obtain an exemption and the school system may need to obtain an exemption under section 55, I think it is, in relation to this aspect of the matter. But, your Honour, in answer to the examples that your Honour the Chief Justice gives, one can also think of examples - and I will not take the Court's time with them - which are of a more minor kind and in relation to which one can say that the school would reasonably be able to accommodate the behaviour or the learning difficulty and this Act should be found to require that it do so.

The concern of the Commission is that the reading of section 5 and the definition of "disability" in this way would provide a difficulty in relation to that construction of the Act, so that at the end of the day the error in the approach in the Federal Court we say, with respect, is that in taking paragraphs (f) and (g) of the definition of "disability", which as Mr Gageler notes is set out at page 183 of the book, it is a mistake, with respect, to dissect that definition so as to treat the disorder and the learning differently and, on the other hand, the disorder and the disturbed behaviour as different aspects.

In truth, both aspects are required in order for the definition of "disability" to be satisfied. It is not appropriate to dissect the definition so as to say that one can treat adversely on the basis of disturbed behaviour, even though as a matter of fact, as recognised by the Federal Court, that disturbed behaviour in this case is a result of the disorder, illness or disease. That, with respect, is the difficulty that this case gives rise to.

GUMMOW J: You may be right about that. Do you know if section 10 in the Federal Act was reproduced in the State Act at the time of the Iron and Steel Case?

MR BASTEN: My recollection is that it was, your Honour.

GUMMOW J: That is mine, too.

MR BASTEN: But I would need to consider it. This is Banovic's Case, your Honour.

GUMMOW J: Yes.

MR BASTEN: Yes, that was an indirect discrimination.

GUMMOW J: No, they dealt with - I know that is what the headnote says, but they dealt and put to one side for the reasons I have been trying to indicate the direct discrimination.

MR BASTEN: Yes, that is so, your Honour, but we tried to deal with this in the submissions and I cannot really elaborate on what we have said there, but the distinction between the circumstances where you are discriminating on the basis of a disability and where one is imposing a requirement or condition which has that effect produces some nice questions. But I confess I did not read Banovic's Case as having much to say about the situation - - -

GUMMOW J: It has a lot to say. At 176 to 177 and 184. Do not take time on it now.

MR BASTEN: No.

GUMMOW J: But if there were a grant of leave, you should focus on it.

MR BASTEN: Yes, one would need to focus on that. That is so. The other aspect, though, which I was seeking to draw attention to was that the difference between disability and sex discrimination is significant because of the need to accommodate something which is undoubtedly a relevant consideration in making decisions of this kind and that might provide a different context in which to focus on those matters.

GLEESON CJ: Thank you, Mr Basten. Yes, Mr Solicitor.

MR SEXTON: If the Court pleases. Your Honours, four judges of the Federal Court have found that the definition of "disability" in section 4 of the Act effectively makes a distinction in this case, perhaps not in every case, between the disorder from which the applicant suffers and the consequences of that disorder, most particularly in this case the assaults that took place on other students and on some of the teachers which resulted in his exclusion from the school - I should say from a general school. There would be, of course, a special school that would be available in those circumstances.

Your Honours, in our submission, it could not be intended by the legislation that there would be a construction that would make the legislation, in a sense, unworkable and result in such a finding that flies in the face of commonsense and we say that is reflected in the judgments at first instance and then in the Full Federal Court.

Your Honours, the Full Federal Court said on that question at paragraph 26 of their judgement, which is at page 191 in the application book, that that construction contended for by my learned friends would result in the situation:

that, once enrolled, any treatment of the student by the school authorities as a result of conduct caused by - - -

GUMMOW J: Well, I do not think that is correct. I do not think it would have that result because of what I have been putting to Mr Gageler and Mr Basten. So I think their reasoning is flawed in terms of construction of the definition and it is flawed because they did not consider the rest of the Act properly.

MR SEXTON: Your Honour, it would have the result in this particular case.

GUMMOW J: Not necessarily, it is what is being put.

MR SEXTON: Well, your Honour, it is what is being put by us as well.

GUMMOW J: Yes, I know.

MR SEXTON: But, your Honour, in our submission, it would not be open to the school authorities to take any action in this situation on the construction that is put forward by my learned friends.

GLEESON CJ: What do you say was the ground on which the educational authorities acted against the pupil?

MR SEXTON: Your Honour, it seems to have been based on the safety of the staff and the other students.

GUMMOW J: Well, exactly.

MR SEXTON: And for that reason, in terms of the statute, not because of the disability.

GLEESON CJ: Well, presumably this Act does not remove from educational authorities the capacity to protect their property and to protect their staff and to protect their pupils, to whom they owe a duty of care, as we have recently discussed.

MR SEXTON: That is right. Well, we certainly say so, your Honour. That is right.

CALLINAN J: Well, for myself, if it did, I would wonder about the constitutional validity of the legislation.

MR SEXTON: Your Honours, as to that first point, there is not a great deal that I can add. Your Honours, the argument about comparison which arises out of section 5, in our submission, really falls together with the first point. In other words, if the argument that we make there, and the argument that was accepted below is correct, then the question of comparison really does not arise because if there is a separation between the disorder in this case and the consequences of it, then the question of the comparison can never be answered in the favour of the applicant, so that that question does not really arise.

GUMMOW J: How did the Act apply? Which particular branch of section 12 brought your client within the operation of the Act?

MR SEXTON: I am sorry, your Honour.

GUMMOW J: Which particular branch of section 12, which deals with its application, caught the State?

MR SEXTON: It is based upon international Conventions.

GUMMOW J: In part it is, not completely though.

MR SEXTON: As I understand it, your Honour. I do not have those Conventions in a sense here but - - -

GUMMOW J: No, I am just asking you to look at section 12, that is all.

MR SEXTON: Section 12(8), your Honour, seems - - -

GUMMOW J: It has to be 12(8) or nothing, does it not?

MR SEXTON: Yes, I think that is right, your Honour.

GUMMOW J: All right, but that could throw some light on construction questions.

MR SEXTON: It could, your Honour, yes.

GUMMOW J: In other words, because the application to your client seems only, at the moment, to have been through 12(8), the text of the Convention could throw some light on these construction questions.

MR SEXTON: So, your Honour, on the comparison question really what my learned friends do is to set up as the comparator a student against whom no action is required so that, therefore, in a sense, there must be discrimination. We say that because of the construction of section 4 that that cannot be the correct approach.

Finally, your Honours, in relation to my learned friend, Mr Basten, and his submissions, we say that most of the issues that are raised by the Commission were not canvassed, in fact, below and so, therefore, could not, in any event, be the subject of an appeal that would take place in this Court.

GUMMOW J: They are propositions of law, are they not?

MR SEXTON: I am sorry, your Honour.

GUMMOW J: They are questions of law.

MR SEXTON: Yes, your Honour, but not ones that arise out of this case, or at least, have not, so far. Unless there are any other matters, your Honours, those are our submissions.

GLEESON CJ: Thank you, Mr Solicitor. Yes, Mr Gageler.

MR GAGELER: Your Honours, the relevant part of section 12 is section 12(8)(c) which refers to the "International Covenant on Economic, Social and Cultural Rights" and relevantly within that Covenant, Article 13 which refers to the right to education and, your Honours, we do invoke those international instruments referred to in subsection - - -

CALLINAN J: That is an external affair, is it?

MR GAGELER: Yes, external affairs power.

CALLINAN J: I do not know whether that is an uncontestable proposition, but in any event assume it to be so.

GUMMOW J: What is the particular paragraph?

MR GAGELER: Article 13 at paragraph (c), Article 13 of the Covenant there referred to.

GUMMOW J: Thank you.

MR GAGELER: Your Honours, although the decision in the present case relates to the operation of section 22 of the Act, dealing only with educational institutions, the reasoning as a general application it is concerned with the construction and operation of section 5, it is concerned with the nature of the disability to which paragraphs (f) and (g) of the definition refer. If it is correct, it applies also in the field of employment, section 15 of the Act. It applies to access to premises, section 23 of the Act. It has many other applications.

GLEESON CJ: On your construction of the Act, how does this Act take account of the rights of the other pupils?

MR GAGELER: Can I put it in the context, your Honour, of employment in section 15. When it is concerned with an employment case there is an exemption or a defence in subsection (4) concerning the inherent requirements of the job that your Honours have been concerned with in other contexts before. In relation to access to premises, there is an exception in section 23(2)(b) that deals with the position of accommodating a person with a disability where that would cause "unjustifiable hardship". In section 22, so far as admission to the school is concerned, there is a defence in subsection (4) of "unjustifiable hardship". What the Act does not accommodate in section 22 is where the position of the child with the disability in the school itself occasions "unjustifiable hardship", but your Honour, if that is a problem - - -

GLEESON CJ: Hardship to whom?

MR GAGELER: Hardship to the school.

GLEESON CJ: Think about the other pupils, the ones who keep getting hit.

MR GAGELER: Yes. The concept of "unjustifiable hardship" is sufficiently broad to accommodate the interests of those who would be adversely affected by the presence of the person with the disability and it has been so applied. The difficulty is that subsection (4) does not provide a defence to subsection (2). That, however, is no reason to distort the definition of "discrimination" in section 4 and no reason to give section 5 an unduly restrictive operation, in our submission. If your Honours please.

GLEESON CJ: Thank you, Mr Gageler. We will adjourn for a short time to consider the course we will take in this matter.

AT 10.00 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.02 AM:

GLEESON CJ: In this matter there will be a grant of special leave to appeal. I would add that the appellant should not assume that we will deal with the matter only on the basis on which it was dealt with in the Federal Court.

AT 10.03 AM THE MATTER WAS CONCLUDED