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Colin D Campbell[∗]
Pursuant to s 5(1) of the Disability Discrimination Act 1992 (Cth) ("the Act"), an alleged discriminator will have discriminated against a person with a disability if they treat the disabled person less favourably, because of their disability, than they treat or would have treated someone without the disability, 'in circumstances that are the same or are not materially different'.
A matter crucial to the assessment of whether there has been illegal discrimination for the purposes of the Act, therefore, is what constitutes the circumstances of the aggrieved person's case. In order for there to be a contravention of the Act not only must the alleged discriminator have treated the disabled person less favourably than they would have treated someone without a disability, but the alleged discriminator must have treated the disabled person less favourably than they would have treated someone without a disability who was in the same circumstances as the person with the disability.
In Purvis v New South Wales (Department of Education and Training) ("Purvis")[1] the High Court of Australia ruled on what would constitute the circumstances of the aggrieved person's case that are to be ascribed to the comparator without the disability. The case involved allegations of discrimination against the defendant brought on behalf of Daniel Hoggan, a minor with an intellectual disability, by his legal guardian, Purvis. Daniel's disability, which had been caused by a severe encephalopathic illness he had suffered when he was seven or eight months old, manifested itself, from time to time, in aggressive behaviour such as hitting or kicking. Daniel had commenced attending South Grafton High School in April 1997, but was expelled from the school in September of the same year. In the intervening five months he had been suspended on five occasions, each time for an act of violence against, variously, other students and staff members. The applicant argued that since the violent acts were a result of Daniel's disability, the appropriate comparator — without Daniel's disability — was a non-violent student whose circumstances were otherwise the same as Daniel's.
The leading judgment was provided by Gummow, Hayne and Heydon JJ. The judges held that the 'circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person' by the alleged discriminator.[2] '[I]t would be artificial', said the judges, 'to exclude … from consideration some of these circumstances because they are identified as being connected with that person's disability.'[3] In the case under consideration, 'the circumstances in which Daniel was treated as he was included, but were not limited to, the fact that he had acted as he had.'[4] 'His violent actions towards teachers and others formed part of the circumstances in which it was said that he was treated less favourably than other pupils.'[5] Accordingly, the comparator was a student who was not disabled, but who had acted in the same violent manner as had Daniel. Callinan J agreed with Gummow, Hayne and Heydon JJ with regard to the circumstances that are to be ascribed to the comparator,[6] and so, with them, formed an effective majority on this issue.
It is thus apparent from the judgments of the majority in Purvis that, under the Act, the manifestations of an aggrieved person's disability, and matters connected with those manifestations, are part of their circumstances to be ascribed to the comparator. Gleeson CJ agreed with the majority in the result and adopted a largely similar approach. Hence, the 'circumstance that gave rise' to the treatment that Daniel received 'was his propensity to engage in serious acts of violence towards other pupils and members of the staff.'[7] The appropriate comparator therefore was not a non-violent pupil.[8] Rather, the appropriate comparator was a pupil who was violent in the same manner that Daniel was, but whose violence did not result 'from a disorder'.[9]
The approach adopted by Gleeson CJ, however, was somewhat narrower than that adopted by the majority. Unlike the majority, Gleeson CJ appears to have restricted the manifestations of a disability that can be ascribed to the comparator to those manifestations that people without the relevant disability actually display. Hence he emphasized that Daniel's propensity for violence can also exist in people 'without any disorder',[10] and noted that there are people 'who have no disorder, and are not disturbed, who behave in a violent manner towards others',[11] matters not commented on by the majority.
Not every member of the High Court agreed, however, that in at least some cases the manifestations of the aggrieved person's disability may form part of the circumstances to be ascribed to the comparator. Hence McHugh and Kirby JJ, who dissented in the result, were of the view that 'circumstances of the person alleged to have suffered discriminatory treatment and which are related to the prohibited ground [in this case, disability] are to be excluded from the circumstances of the comparator.'[12] Hence, for those judges, 'the proper comparator was a student who did not misbehave.'[13]
The purpose of this piece is to take fundamental issue with the position advanced by the majority and Gleeson CJ in Purvis, that the circumstances of the aggrieved person, to be ascribed to the comparator, include the manifestations of the aggrieved person's disability, and related matters. The paper will be divided into two Parts. In Part I, arguments will be advanced as to why the approach adopted by the majority and that adopted by Gleeson CJ, are positively wrong. In Part II, the arguments relied on by the majority and by Gleeson CJ in favour of their positions will be scrutinized. It will be contended that these were unconvincing at the time that the case was decided and in some instances, because of legislative developments that have occurred since the case was decided, are now even less persuasive.
The arguments that may be raised against the majority's position will first be considered. Then, consideration will be given to the extent to which those arguments may be relied on to counter the position adopted by Gleeson CJ.
The position adopted by the majority in Purvis is difficult to sustain for a number of reasons. To begin, such an approach gives rise, at the very least, to a significant internal tension in the operation of s 5(1). As noted above, the section stipulates that the comparator must not themself possess the aggrieved person's disability. Indeed, it is only if, inter alia, the comparator does not possess the aggrieved person's disability that it can be ascertained whether the alleged discriminator treated the person with the disability less favourably than they would have treated someone without the disability, the central task contemplated by s 5(1). If, however, the manifestations of the aggrieved person's disability, and matters related to those manifestations, are regarded as part of their circumstances which must be ascribed to the comparator, then the comparator, if not actually possessing the aggrieved person's disability, comes very close to doing so.
The tension described above is particularly evident in cases where the manifestations of the disability in question are displayed only by those with the particular disability, or at least a disability of some kind. Hence, in Fetherston v Peninsula Health[14] the comparator, unlike the person aggrieved, did not — and indeed, as a result of the terms of s 5, could not — suffer from diabetes-related visual impairment. However, the circumstances of the aggrieved person that would be attributed to the comparator, identified by the judge in reliance on the majority position in Purvis,[15] included the difficulties that the aggrieved person experienced 'in reading unaided charts, x-rays and handwritten materials';[16] reports that were received about him 'performing tracheostomies in an unorthodox manner, apparently because of his visual disability';[17] expressions of concern made by medical and nursing staff about the 'performance of his duties in ways apparently related to his visual problems';[18] and his attendance at 'an independent eye specialist at the request of his employer' and his subsequent refusal to allow the specialist to pass his report on to his employer.[19] If the circumstances of the aggrieved person that are ascribed to the comparator include the manifestations of the aggrieved person's disability, and related matters, and no-one without a disability displays those manifestations, then claims that the comparator does not have the disability in question strain credulity.
However, even where, as in Purvis itself, the manifestations of the aggrieved person's disability are not unique to those who possess a disability, the tension described above is still evident. It remains that the comparator who, on the one hand, is prohibited by the terms of s 5(1) from having the aggrieved person's disability will, on the other, act in a way which precisely mimics the effects of that disability.
The tension in question is all the more pronounced if it is accepted that the term 'disability' in the Act includes the manifestations of a disability. Certainly McHugh and Kirby JJ, the dissenting judges in Purvis, presented compelling reasons in favour of that interpretation of the term. First, the judges observed that the language of the Act itself suggests that the term 'disability' should be construed as including the manifestations of the disability. Section 4 contains several overlapping meanings of the term 'disability', and a number of those meanings refer to the consequences of a disability — its effects — rather than simply to its underlying cause. Hence, for example, paragraph (a) says that disability means the 'total or partial loss of the person's bodily or mental functions'. As McHugh and Kirby JJ note, '[t]he focus of this paragraph is on loss of functions rather than the cause of any such loss.'[20] Similarly, paragraph (e) states that disability means 'the malfunction … of a part of the person's body' and pursuant to paragraph (g) disability means 'a disorder, illness or disease that … results in disturbed behaviour.'
Second, the World Health Organization's International Classification of Impairments, Disabilities and Handicaps: A Manual of Classification Relating to the Consequences of Disease was,[21] said the judges, 'the most widely accepted classification scheme covering all disability types, both internationally and domestically' when 'the Act was drafted'.[22] This scheme recognizes that a disability may include 'functional difficulties'.[23]
Third, to construe 'disability' as including functional difficulties accords 'with the Act's beneficial and remedial nature.'[24] If, under the Act, an aggrieved person's disability — the basis on which it is illegal for them to be discriminated against — does not include the manifestations of the disability, it would be open to an alleged discriminator to escape liability by contending that they had accorded less favourable treatment not by virtue of the aggrieved person's disability, but rather, by virtue of a manifestation of the disability. That would be particularly serious in a case like the present where the damage to the complainant's brain was a '"hidden" impairment', in the sense that it was 'not externally apparent unless and until' his behaviour became aggressive.[25] It was the complainant's 'inability to control his behaviour, rather than the underlying disorder, that inhibit[ed] his ability to function in the same way as a non-disabled person … and [gave] rise to the potential for adverse treatment.'[26]
Gummow, Hayne and Heydon JJ, with whom Callinan J agreed in this regard,[27] were more circumspect in their approach than were McHugh and Kirby JJ. The judges did not express the view that pursuant to s 4 at large, the manifestations of a disability will be regarded as part of the disability. They did, however, determine that for the purposes of s 4(g) — the specific portion of s 4 relied on by Purvis on behalf of Daniel Hoggan — the 'disturbed behaviour' referred to in the section was as much a part of the relevant disability as the 'disorder, illness or disease' that caused it.[28] Even if McHugh and Kirby JJ were incorrect in determining that, for the purposes of s 4, the manifestations of a disability will always be part of the disability, there would appear to be a significant internal inconsistency in the judgment of Gummow, Hayne and Heydon JJ. On the one hand, the judges were of the view that pursuant to s 4(g) the manifestation of the disability in question — the aggrieved party's 'disturbed behaviour' — was part of that disability.[29] Therefore, it was presumably not open to the respondent to claim that it had treated Daniel less favourably not because of his disability, but because of an effect of that disability. On the other hand, while recognizing that the comparator could not possess the relevant disability,[30] the judges nonetheless attributed to the comparator the behaviour that the aggrieved party engaged in because of his disability.[31]
There are other follow-on effects of the approach adopted by the majority in Purvis which render it likely that that approach is in error. If the majority had openly — and in contravention of the terms of s 5 — held that the aggrieved person's disability must be attributed to the comparator, the majority would have rendered the aggrieved person's disability irrelevant for the purposes of determining whether they had been discriminated against. The aggrieved person's disability would have been rendered irrelevant because it would never be the case that an alleged discriminator would treat someone with a disability less favourably, because of that disability, than they would have treated a comparator, who also had the disability, in the same circumstances. The possession by the comparator of the relevant disability would effectively have cancelled out the aggrieved person's disability for the purpose of determining whether the aggrieved party would have received less favourable treatment.
The approach adopted by the majority in Purvis will, if anything, tend to be even more disadvantageous for those with disabilities than the approach described above. However poorly the alleged discriminator might treat a disabled person, it is difficult to aver from the suspicion that they would accord even worse treatment to a person who displayed all of the troublesome and difficult aspects of the disabled person's disability — the disability's manifestations — without the mitigating factor of actually being disabled. The majority's approach thus effectively renders the aggrieved person's disability more than irrelevant for the purposes of determining whether or not they have been subject to direct discrimination, a singularly impressive achievement in the context of the Act.
Such an approach is especially pernicious to those, like Daniel Hoggan himself, who are mentally ill, and whose mental illness takes the form of a propensity to certain acts, such as violence against others, which, in the mentally well, would be morally reprehensible. In order that the mentally unwell person is not discriminated against, pursuant to the approach relied on by the majority in Purvis, it is necessary only that they receive the same treatment as would someone who is not 'disturbed' but who, in the words of Gleeson CJ, is merely 'bad'.[32] The majority's approach ignores the important qualitative difference, adverted to by McHugh and Kirby JJ in their dissent, between violent behaviour engaged in by a person who is mentally well and that engaged in by someone who is mentally ill. In the former case the violence 'is an act of free will',[33] whereas in the latter, it may not be.
A related matter is that the approach adopted by the majority of the High Court in Purvis leaves only a very modest role to be played by s 5(1), a result that does not fit comfortably with the Act's avowed object of eliminating, 'as far as possible, discrimination against persons on the ground of disability'.[34] As suggested above, it is difficult to conceive of cases where the alleged discriminator would treat someone less favourably, by virtue of that person having a disability, than they would treat someone else who did not have the disability, but who had all of the symptoms or effects of the disability. Certainly, as McHugh and Kirby JJ observe in their dissenting judgment in Purvis, under such an approach there could never be direct discrimination where the treatment accorded to the aggrieved person was prompted by the alleged discriminator's reaction to the manifestation of a disability, rather than the disability itself.[35]
One situation in which direct discrimination might be made out under s 5(1) would be if a significant stigma attached to the disability in question, with the result that the alleged discriminator might actually treat someone with the disability less favourably than they would treat someone with the symptoms of the disability but without the disability itself. That might plausibly be the case for instance, even today, with respect to mental illness.[36] But if claims of direct discrimination may only successfully be brought in respect of disabilities to which significant stigmas attach, the operation of s 5(1) is limited indeed.
It is not only the practical consequences of the operation of s 5(1) that cast doubt upon the correctness of the majority's interpretation of that section in Purvis. The majority's conclusions that the manifestations of the aggrieved person's disability, and matters connected to their disability, constitute the circumstances that must be ascribed to the comparator, do not sit at all comfortably with other sections of the Act. For instance, s 5(2) states that for the purposes of s 5(1), 'circumstances in which a person treats or would treat another person with[out] a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.'[37] As is explained by Gummow, Hayne and Heydon JJ, a consequence of this section is that the disabled person's need for 'different accommodation or services does not constitute a material difference in judging whether the discriminator has treated the disabled person less favourably than a person without the disability.'[38] Implicit in these observations, though, and indeed in the operation of s 5(2) itself, is the assumption that the circumstances of the aggrieved person that are ascribed to the comparator do not include either the manifestations of the disability in question that would necessitate the comparator receiving special accommodation or services, or the special accommodation and services themselves. But it follows from the interpretation accorded to s 5(1) by the plurality in Purvis that the manifestations of the aggrieved person's disability, and matters related to that disability and its manifestations, are both ascribed to the comparator.
Difficulties with the interpretation of the operation of s 5(1) favoured by the majority in Purvis are also provided by ss 7–9 of the Act. Those sections stipulate that a person with a disability will have been discriminated against if they receive less favourable treatment by virtue of their reliance on any of: a palliative or therapeutic device or an auxiliary aid (s 7); an interpreter, reader, assistant or carer who provides them with services because of their disability (s 8) or an assistant animal (s 9).
Because these matters are the prohibited attributes for the purposes of the comparisons contemplated by ss 7–9, they may not be ascribed to the relevant comparators if the comparisons are to have any efficacy. However, at the same time, the matters which comprise the prohibited attributes under ss 7–9 are matters connected both with the disabilities of the aggrieved people who seek to rely on ss 7–9, and with the manifestations of those disabilities. It would be very peculiar for Parliament not to permit matters connected with a person's disability to be ascribed to the comparator for the purposes of ascertaining whether there was less favourable treatment under ss 7–9, but to permit such matters to be ascribed under s 5.
To the extent that the majority's approach permits the ascribing to comparators of the manifestations of disabilities which, in reality, are only displayed by people who actually have the disabilities (and assuming that, in accordance with s 5, the disability itself has not been ascribed to the comparator), the majority's approach gives rise to comparators that are simply nonsensical. The case of Fetherston v Peninsula Health has already been mentioned above.[39] It will be recalled that in that case the comparator did not, like the aggrieved person, suffer from diabetes-related visual impairment. However, the circumstances attributed to the comparator, and listed above, included a number of references to the aggrieved person's sub-standard sight. Hence, the comparator, while not visually impaired (ie not subject to a disability), had difficulty seeing. Similarly, in Trindall v NSW Commissioner for Police,[40] the aggrieved person, a New South Wales police officer, had sickle cell trait, a condition that places sufferers 'at a somewhat greater risk [of injury] than those without the trait when engaged in … very strenuous activities'.[41] The comparator was a 'New South Wales police officer without the sickle cell trait',[42] but who nonetheless had a 'risk of injury of a similar nature to that of a person with the sickle cell trait'.[43] Other such contradictory scenarios are not difficult to imagine. Hence, if the aggrieved person had a severed spinal column, the comparator, under the majority's approach, would presumably be a person who had nothing wrong with their spine, but who could not walk; and if the aggrieved person had severely damaged ear canals, the comparator would presumably be a person whose ear canals were not damaged at all, but who nonetheless could not hear.
One way of avoiding the sorts of inherent contradictions described above, but of still permitting the symptoms of the aggrieved person's disability to play some role in respect of the comparator, would be to assume that the comparator does not actually suffer from the symptoms in question, but rather, merely simulates the effects of the disability. Hence, where the aggrieved person was blind, the comparator would not be visually impaired but might, for instance, insist on wearing a blindfold at all relevant times; and where the aggrieved person had a damaged spinal column, the comparator would not actually be unable to walk, but would insist on being confined to a wheelchair.
Quite apart, however, from the bizarre contrivances that such an approach would require, it would also render the comparison required to be made by s 5(1) even less favourable to the aggrieved person than is already the case under the majority's approach. There would understandably be extremely little patience for a person who, while not disabled, insisted on simulating the symptoms of a disability in, for instance, a work or educational context. Accordingly, however badly an alleged discriminator would treat someone who was actually disabled, it is difficult to imagine that the treatment would be even less favourable than that accorded to someone who was not disabled, but who insisted on simulating the effects of a disability.
Not all of the arguments that may be relied on against the approach adopted by the majority apply with equal force to the approach adopted by Gleeson CJ, or even apply to that approach at all. For example, the 'nonsensical comparators' argument has no operation with respect to the position advanced by Gleeson CJ. That argument objects to the comparators that may result when manifestations of a disability that are only displayed by those with a disability are attributed to the comparator who is not disabled. But as seen above,[44] pursuant to the approach relied on by Gleeson CJ only manifestations of disabilities that are actually displayed by people who are not disabled are attributed to the comparator.
That more limited approach advanced by Gleeson CJ has implications for some of the other arguments referred to above as well. Particularly, while Gleeson CJ's approach may give rise to an internal tension within s 5(1), this tension will necessarily arise in a narrower range of cases than it does under the approach advanced by the majority. As noted above,[45] this tension arises from the ascribing to the comparator, who must not have the disability, of the manifestations of that disability. Under Gleeson CJ's approach — and unlike the position under the approach advocated by the majority — only those manifestations of a disability that are actually displayed by those without a disability will be ascribed to the comparator. Therefore, in those cases where the manifestations of the aggrieved person's disability are not displayed by those without the disability, the manifestations will not be attributed to the comparator, and the tension described above will not arise. Also, to the extent that the degree of tension in the operation of s 5(1) is especially high in cases where the manifestations of the disability that are ascribed to the comparator are not actually displayed by people without the disability, such a degree of tension will not arise under the approach advocated by Gleeson CJ.
Because the internal tension in the operation of s 5(1) arises in a narrower range of cases under the approach advocated by Gleeson CJ than it does under the approach advocated by the majority, the arguments which follow-on from the existence of that tension necessarily apply in an attenuated fashion to the approach adopted by Gleeson CJ as well. Hence, as with the approach adopted by the majority, Gleeson CJ's approach renders the aggrieved person's disability irrelevant for the purposes of ascertaining whether they have been discriminated against, but only in cases where the manifestations of the disability are actually displayed by those who are not disabled. Similarly, the approach of Gleeson CJ — like that of the majority — accords s 5(1) a limited role. However, and again — and unlike under the position advanced by the majority — the role is circumscribed only in cases where the manifestations of the aggrieved person's disability are actually displayed by people without the disability.
It is not to be thought, however, that these arguments have no force with regard to the position adopted by Gleeson CJ. And the remaining two arguments — articulated under the headings 'Inconsistency with s 5(2)' and 'Inconsistency with ss 7–9'[46] — apply with just as much force to the position adopted by Gleeson CJ as they do to the majority's position.
Having advanced a number of arguments against the positions adopted by the majority and Gleeson CJ in respect of what will constitute the circumstances of the aggrieved person's case that must be ascribed to the comparator, it is now proposed to examine the arguments advanced by the majority and Gleeson CJ in favour of their positions.
Although not mentioned by the judges, each of the arguments sought to be relied on by the majority in favour of their broader position — that the manifestations of a disability may be ascribed to the comparator regardless of whether or not people without the disability actually display the manifestations — could be sought to be relied on, too, by Gleeson CJ in support of his narrower position (namely that only those manifestations of a disability which are actually displayed by people without the disability may be ascribed to the comparator).
Unless otherwise noted, criticisms made here of the arguments advanced by the majority in favour of their wider position may be assumed to apply mutatis mutandis to those arguments inasmuch as they would support the narrower position advanced by Gleeson CJ.
Gummow, Hayne and Heydon JJ, with whom Callinan J agreed in this regard,[47] observed that 'there will be cases where criminal conduct for which the perpetrator would be held criminally responsible could be seen to have occurred as a result of … a disability within the meaning of the Act.'[48] If, then, the manifestations of an aggrieved party's disability were not able to be ascribed to the comparator for the purposes of ascertaining whether there was illegal discrimination, the 'startling result'[49] would be that 'employers, educational authorities, and others subject to the Act' would be 'unable to insist upon compliance with the criminal law without in some cases contravening the Act.'[50] The interpretation of s 5(1) advanced by the plurality, by permitting the manifestations of a disability and connected matters to be ascribed to the circumstances of the comparator, by contrast, permits 'a proper intersection between the operation of the Act and the operation of State and federal criminal law.'[51]
This argument is problematic for a number of reasons. It is highly likely, for instance, that even when Purvis was decided, the argument mis-described and severely over-stated the position under the Act. Hence in most of the areas under the Act where discrimination on the basis of disability could arise, there was (and still is) an unjustifiable hardship defence.[52] In determining whether the accommodation of a person with a disability will cause an unjustifiable hardship to a person or body, the court may consider, inter alia, 'the nature of the … detriment … likely … to be suffered by any persons concerned'[53] and 'the effect of the disability of a person concerned'.[54] As McHugh and Kirby JJ point out in their dissent, '[t]he nature of the detriment likely to be suffered by any persons concerned … would comprehend consideration of threats to the safety and welfare of other[s]'.[55] Further, '[t]he reference to the effect of the disability would also permit consideration of the possibility that behaviour of the [aggrieved person] would violate the criminal law',[56] and presumably would also permit consideration of any violations that actually did occur.
It is acknowledged that the unjustifiable hardship defence did not operate in respect of the particular circumstances of Purvis. At the time the case was decided, the defence did not apply to discrimination that occurred with respect to the expulsion of a student by an educational authority, a situation that has since been remedied.[57] However, that is not to say that there were not other sections of the Act upon which the school could have relied to protect its staff and students. For instance, s 55 of the Act provides the Human Rights and Equal Opportunity Commission with power to grant an exemption to a person from the operation of a provision contained, relevantly for present purposes, in Division 2 of the Act. Section 22(2)(b), which prohibits an educational authority from discriminating against a student in the context of their expulsion from an educational institution, is contained in Division 2. McHugh and Kirby JJ, in their dissent, were certainly of the view that the terms of the section were 'flexible enough to apply to situations such as those that arose following the enrolment of Mr Hoggan'[58] and that there was 'nothing to stop the making of an urgent application in respect of a particular student, if necessary.'[59]
However, even if s 55 does not authorize the granting of an exemption with respect to an individual student, or is otherwise unsatisfactory,[60] it is still by no means apparent that the majority's interpretation of s 5(1) is to be preferred. An argument in favour of a particular interpretation of a statutory provision, based on the adverse consequences that will follow if an alternate interpretation is adopted, will be deficient if it does not also consider what may be the adverse consequences that will follow if the interpretation in question is itself adopted.[61] As argued in Part I above, the consequences of the adoption of the majority's interpretation of s 5(1) will be highly deleterious to the prohibition of direct discrimination under the Act. If the manifestations of an aggrieved party's disability may be regarded as part of the circumstances of their case to be attributed to the comparator, it will only be extremely rarely that an alleged discriminator will be found to have treated a disabled person less favourably than they would have treated the comparator without a disability but with the manifestations of the disability. Therefore, pursuant to the majority's interpretation of s 5(1), the capacity of the Act to render an alleged discriminator liable for direct discrimination has been severely undermined.
The question then becomes which of the two outcomes would have been less undesirable. Certainly it would have been unfortunate if, as a consequence of the High Court's decision in Purvis, an educational authority could have been exposed to civil liability under the Act for removing from an educational institution a student who, because of their disability, manifested behaviour that was dangerous to students and staff members, however rarely this would actually have occurred in practice. However, it is suggested that it is much worse, in the context of an Act the purpose of which is 'to eliminate, as far as possible, discrimination against persons on the ground of disability',[62] for the section of the Act prohibiting direct discrimination to have been largely eviscerated, which is what did in fact happen. Neither result is ideal, but the latter is far less desirable, particularly in light of the objects of the Act.
Even if the narrower approach relied on by Gleeson CJ were adopted, the operation of s 5 would be significantly restricted. In cases where the manifestations of the aggrieved person's disability could be displayed by people without a disability — as is the case, for instance, with respect to certain neurological difficulties and psychiatric illnesses — direct discrimination would be extremely difficult to make out.
Finally, and as mentioned above, the unjustifiable hardship defence now does apply to discrimination on the basis of disability that occurs in the context of expelling a student from an educational institution. Therefore, to the extent that the absence of such a defence in the circumstances of Purvis justified the interpretation accorded to s 5(1) by the plurality, it can no longer do so.[63]
The majority also relied on s 5(1) of the Disability Discrimination Act 1995 (UK) to bolster their interpretation of s 5(1) of the Act. Section 5(1) of the United Kingdom Act states that:
For the purposes of this Part, an employer discriminates against a disabled person if — (a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply …
According to the majority, s 5(1)(a) of the United Kingdom Act is 'much narrower' in its operation than is s 5(1) of the Act.[64] 'As was pointed out in Clark v TDG Ltd, the focus' of the United Kingdom legislation 'is not upon the cases of different persons (one disabled, and one not) in the same or not materially different circumstances.'[65] Rather, that Act 'looks only to the reason for the treatment of the disabled person and then requires comparison with the treatment of "others to whom that reason does not or would not apply"'.[66] In other words, the United Kingdom legislation 'requires identification of why the disabled person was treated as he or she was, and then asks would another, to whom that reason did not apply, have been treated in the same way?'.[67]
Although not expressly stated by the majority, the strong implication is that there was a form of words available to the Australian Parliament that would have made it clearer than the language actually used in the Act that the manifestations of the aggrieved person's disability are not to be ascribed to the comparator. Presumably in many cases where people with disabilities are discriminated against, they are discriminated against because of the manifestations of those disabilities. In such a situation, legislation that stipulates that the comparator shall not be someone to whom the reason for the discrimination applies, makes it abundantly clear, so the argument would go, that the manifestations of the disability or similar behaviour cannot be attributed to the comparator. They cannot be attributed to the comparator because, if they were, the reasons for the treatment received by the aggrieved person would apply to the comparator. Thus, '[r]ecognising that s 5(1) requires comparison with the treatment that would be given to a person without the disability [but not without the manifestations of the disability] is critical to the proper application of the Act.'[68]
Even assuming that the language used in s 5(1)(a) of the United Kingdom legislation necessarily has the meaning that the majority attributes to it, and is not, at least on its face, ambiguous,[69] there are a number of problems with the majority's reliance on that section. As a preliminary matter, it is worth pointing out that the majority does not actually state the conclusion that it believes is to be drawn from the existence, in the United Kingdom legislation, of language that supposedly establishes more clearly than does the relevant wording of s 5(1) of the Act that the effects of a disability are not to be attributed to the comparator. It is suggested that the majority may intend one of two possible broad conclusions to be drawn. On the one hand, the majority may intend the conclusion simply that it cannot be assumed, in the absence of arguments to the contrary, that s 5(1) of the Act precludes the effects of a disability from being attributed to the comparator. This will be referred to as the "weak conclusion". On the other hand, the majority may intend the conclusion that it must be presumed that s 5(1) of the Act requires the manifestations of a disability to be attributed to the comparator. This is referred to as the "strong conclusion".
If the majority intends the language of s 5(1)(a) of the United Kingdom legislation to give rise to the weak conclusion, the majority's argument is essentially uninteresting. For, as has been pointed out in Part I above, there are arguments to the effect that, pursuant to s 5(1) of the Act, the effects of a disability may not be ascribed to the circumstances of the comparator.
At the same time, it is very doubtful that the presumption constituting the strong conclusion could be drawn in the first place. The Act predates the United Kingdom legislation, with the result that there can be no suggestion that the Australian legislators intentionally adopted a position that was more equivocal than that given effect in the United Kingdom legislation. The most that can be said is that the drafters of the Act could have made it even more apparent than they did that the manifestations of an aggrieved person's disability, or equivalent behaviour, are not to be ascribed to the comparator. However, the mere availability of language which would make it more clear, than does the language actually used, that a statute operates in a particular way, gives rise to only the faintest of presumptions that that operation in question was not intended by Parliament. This is especially so when that operation is entirely consistent with the supposedly more equivocal language to begin with, as is the position here. Any such presumption in the present case would then be displaced by the arguments referred to in Part I above.
A third argument relied on by the majority in favour of their construction of s 5(1) was that it 'does not depend upon distinguishing between the cause of a person's disability and the effects or consequences of it.'[70] 'Indeed', said the majority, 'it is a construction which embraces the importance of identifying (as part of the relevant circumstances) all the effects and consequences of disability that are manifested [in] the alleged discriminator.'[71]
It is suggested that the majority's contention here is incorrect. It is difficult to accept the majority's proposition that their approach 'does not depend upon distinguishing between the cause of a person's disability and the effects or consequences of it' when, central to the operation of s 5(1), pursuant to the majority's interpretation of that section, is the attribution of the effects of a disability to comparators who must not, according to the very terms of the section, possess the disability. The separation of the effects of a person's disability from the cause of the disability lies at the very heart of the majority's approach in this case.
The majority's assertion that their approach 'embraces the importance of identifying (as part of the relevant circumstances) all the effects and consequences of a disability that are manifested [in] the alleged discriminator' is at best a non-sequitur as far as concerns the claim that their approach does not involve distinguishing between the cause of a disability and the disability's effects. It is simply not apparent why the fact that an approach that identifies 'all the effects and consequences of a disability that were apparent to the alleged discriminator' has the result that the approach does not distinguish between the causes of the disability and its effects. It could even be argued, to the contrary, that it is only as a consequence of identifying the effects and consequences of a disability that those effects and consequences can be attributed to a comparator who does not have the disability.
Indeed, the only way in which the majority's approach would not involve distinguishing between the cause of a disability and the effects of that disability would be if, pursuant to the majority's approach, the comparator were attributed with the actual disability itself, as well as its effects or consequences. But while there is the distinct possibility that the majority's approach does in practice have such a result in respect of at least certain disabilities,[72] the attribution to the comparator of the aggrieved person's disability is expressly prohibited by s 5(1), as the majority themselves recognize.[73]
A final argument made by the majority in support of their interpretation of s 5(1) of the Act is that their interpretation 'gives separate and important work to all of the elements of s 5(1).'[74] Hence, ascertaining that the aggrieved person has been treated a certain way 'because of' their disability, does not determine how the alleged discriminator would have 'treated a person without the disability in the relevant circumstances'.[75]
In the context of the majority's judgment, this claim is difficult to sustain. Hence, as argued in Part I above, if the circumstances of the aggrieved person that are to be attributed to the comparator include the manifestations of the aggrieved person's disability and related matters, it is almost a foregone conclusion that the comparator will be treated in the same way as the aggrieved person.[76] It is difficult to conceive of circumstances in which an alleged discriminator would treat someone without a disability, but with all of the manifestations of that disability, differently from the way in which they would treat a person who actually had the disability, if the circumstances of the two were otherwise the same. Hence, and contrary to what the majority assert, under their approach ascertaining that an aggrieved person has been treated a certain way because of their disability comes very close to determining how a person without the disability, in the same circumstances, would have been treated.
It is acknowledged that the claim that each of the elements of s 5(1) is accorded separate and important work can more readily be made in respect of the position advanced by Gleeson CJ than it can in respect of the position advanced by the majority, although only in cases where the manifestations of the disability in question are not displayed by people without the disability. However, a claim that a particular interpretation of s 5(1) gives separate and important work to all of the section's elements only serves as an argument positively in favour of that interpretation if the competing interpretation does not give separate and important work to each of the section's separate elements. The competing interpretation here is that urged by the appellant and adopted by the minority: that the circumstances of the aggrieved person to be ascribed to the comparator do not include matters related to the aggrieved person's disability. However, the approach urged by the appellant and adopted by the minority does give separate and important work to each of the elements of s 5(1).[77]
Hence, even if a disabled person receives particular treatment because of their disability, it does not follow, under the minority's approach, that the comparator, without the disability, would necessarily have been treated more favourably. Pursuant to s 10 of the Act, the aggrieved person will be held to have been accorded treatment because of their disability even if the aggrieved person's disability was only one of two or more reasons for their treatment, and even if their disability was not 'the dominant or … substantial reason'[78] for their treatment. Where the aggrieved person's disability was not a dominant cause of the treatment they received — but it can still be held that they were accorded the treatment because of their disability — then the circumstances of their case which are attributed to the comparator play a vital role in determining whether they received less favourable treatment. If those circumstances — including perhaps the behaviour of the aggrieved person that was not related to their disability — themselves played a substantial role in the treatment they received, then it is entirely possible that the comparator would have been treated in the same way as the aggrieved person. This would be the case even though the comparator was not disabled and did not have attributed to them the manifestations of the disabled person's case, or related matters.
As with the previous section, it may be assumed, unless otherwise noted, that criticisms of arguments advanced by Gleeson CJ in favour of his position apply mutatis mutandis to those arguments inasmuch as they might be relied on to support the majority's position.
The principal argument relied on by Gleeson CJ, in favour of the approach he adopted, revolved around the non-delegable duty of care in tort that schools owe their pupils and staff.[79] According to the judge, if the appellant's argument were accepted — that the circumstances of the aggrieved person's case, to be ascribed to the comparator, could not include circumstances related to the aggrieved person's disability — then a school authority would be placed in a 'position of conflict between its responsibilities towards a child who manifests disturbed behaviour and its responsibilities towards the other children who are in its care'.[80] That would be the case even if the disturbed behaviour that resulted from the pupil's disorder took 'the form of attempting to burn a school down, or attempting to kill somebody.'[81] Accordingly, if 'there is a reasonable construction of the Act which avoids a conflict'[82] between obligations imposed on a school by the law of tort and the obligations imposed by the Act, 'then that construction should be preferred.'[83]
Essentially the same responses as were relied upon above, in relation to the majority's claim that the appellant's desired interpretation of the Act would lead to a conflict between an alleged discriminator's obligations under the Act and their ability to insist on compliance with the criminal law, may be relied on here. Hence, for instance, it is very likely that the application of s 55 of the Act would have relieved any potential conflict between the obligations imposed by the law of torts and obligations imposed by the Act. Certainly, if the aggrieved person had engaged in the sorts of acts of extreme violence contemplated by Gleeson CJ, it is difficult to conceive that such an order would not have been promptly granted. Further, even if for some reason s 55 had been of no avail, it is by no means obvious that the approach advocated by Gleeson CJ should, in the circumstances, have been regarded as reasonable. Whatever the benefits of such an approach, its adoption would have impaired the ability of the Act to provide redress for direct discrimination on the basis of disability in circumstances where the manifestations of the disability are displayed by people who are not disabled. Finally, the unjustifiable hardship defence does now apply to situations where schools are accused of discriminating in expelling a student from the school. Accordingly, even if Gleeson CJ's argument concerning the school's duty of care to its students and staff was persuasive when Purvis was decided, that is no longer the case.
A related argument relied on by Gleeson CJ involved the constitutional basis of the Act. Section 12(8) of the Act lists the international instruments and other matters to which the Act purports to give effect. It is by giving effect to these that the Act can claim constitutional validity under s 51(xxix) of the Australian Constitution. Section 12(8)(e) refers to 'matters of international concern'. Gleeson CJ acknowledged that such matters of international concern 'include the rights of disabled people in general, and disabled children in particular.'[84] However, '[i]n the context of the present case, they also include the rights of the other children in the school.'[85] These include the state undertaking 'to ensure the child such protection and care as is necessary for his or her well-being',[86] articulated in art 3 of the Convention on the Rights of the Child,[87] and the state taking 'all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical violence.'[88] 'In construing the Act, there is no warrant for an assumption that, in seeking to protect the rights of disabled pupils, Parliament intended to disregard Australia's obligations to protect the rights of other pupils.'[89]
To the extent that the judge's observations here were intended to operate as criticisms of the position urged by the appellant and adopted by the minority, they are unpersuasive. Hence, the presence of s 55, referred to above, had the result that even if the Court in Purvis had adopted the minority position, Australia's obligations to protect the rights of other pupils would not have been disregarded. Moreover, even if the adoption of the minority's approach would have resulted in the abrogation of the rights referred to by Gleeson CJ, it does not follow that the minority's position should not have been adopted. All that Gleeson CJ contends is that it cannot be assumed — presumably without argument — that Parliament would intend to adopt a position that resulted in the abrogation of those rights. However, the adoption of the minority's position does not necessitate the making of any such assumption. Rather, there are strong arguments, outlined in Part I, as to why the minority's approach — and the consequences of its adoption — was the approach intended by Parliament. Finally, the availability, now, of the unjustifiable hardship defence in respect of the expulsion of a disabled student from a school has the result that, whatever the case in the past, the adoption of the minority approach would not involve the disregarding of the rights to which Gleeson CJ referred.
The approaches adopted by the majority and Gleeson CJ in Purvis reflect the adage that 'hard cases make bad law'. Confronted with the unsavoury prospect of holding the respondent liable under the Act for action taken to protect the staff and students of South Grafton High School against physical violence, the majority and Gleeson CJ opted to interpret s 5(1) in such a way as to significantly limit the operation of that section, and to permit the respondent to escape liability.
The consequence of the approach adopted by the majority — pursuant to which the manifestations of a disability will be attributed to the comparator regardless of whether those manifestations are actually displayed by people who are not disabled — was to render virtually nugatory the very prohibition on direct discrimination contained in the section. It is most unlikely that the treatment accorded by an alleged discriminator to someone with a disability will be less favourable than the treatment that the alleged discriminator would accord to someone without the disability, but with all of the manifestations of the disability. Accordingly, any number of disabled people, who offer no threat of violence to anyone, have been deprived of the protection previously offered by s 5 of the Act.
The approach adopted by Gleeson CJ, pursuant to which only those manifestations of a disability that are actually displayed by people who are not disabled are attributed to the comparator, operates in a narrower range of circumstances than does the approach adopted by the majority. However, in those circumstances where the approach does apply, its effects will tend to be as severe as those of the majority's approach. The same test, as is utilized generally under the majority's approach, will be employed to ascertain whether there has been direct discrimination on the basis of a disability.
The irony of the plurality's approach in Purvis is twofold. Firstly, there is every reason to believe, as did McHugh and Kirby JJ, that the respondent could successfully have sought relief from their obligations pursuant to the Act under s 55. Therefore, the approach relied on by the plurality, while necessary to protect the particular respondent in Purvis who had not sought to rely on s 55 before expelling Daniel Hoggan, was not necessary to provide protection, prospectively, to other bodies whose situations might be similar to that of the respondent.
Secondly, as a result of amendments to the Act, the unjustifiable hardship defence now applies in circumstances where an educational authority expels a pupil from an educational institution. Accordingly, there is virtually no danger of bodies like the respondent being found liable under the Act for expelling disabled students whose disturbed and violent behaviour poses a significant threat to others, even if those bodies have failed to rely on s 55. Nonetheless, the deleterious effects of the approach relied on by the majority and Gleeson CJ persist.
[∗] BA LLM (Melbourne), LLM PhD (Cambridge), Faculty of Law, Monash University. I would like to thank my colleague Dale Smith for his assistance in the writing of this piece. The usual disclaimer applies.
[1] [2003] HCA 62; (2003) 217 CLR 92.
[2] Ibid 161.
[3] Ibid.
[4] Ibid.
[5] Ibid.
[6] Ibid 175.
[7] Ibid 100–1.
[8] Ibid 100.
[9] Ibid.
[10] Ibid 101.
[11] Ibid.
[12] Ibid 131 (emphasis in original).
[13] Ibid 134. See also 137.
[14] [2004] FCA 485 (Unreported, Heerey J, 23 April 2004).
[15] Ibid [86].
[16] Ibid.
[17] Ibid.
[18] Ibid.
[19] Ibid.
[20] Purvis [2003] HCA 62; (2003) 217 CLR 92, 117 (emphasis in original).
[21] World Health Organization, International Classification of Impairments, Disabilities and Handicaps: A Manual of Classification Relating to the Consequences of Disease (1980).
[22] Ibid 118 (McHugh and Kirby JJ).
[23] Ibid.
[24] Ibid 119.
[25] Ibid.
[26] Ibid.
[27] Ibid 175.
[28] Ibid 156–7.
[29] Ibid.
[30] Ibid 160.
[31] Ibid 160–1.
[32] Ibid 101.
[33] Ibid 134.
[34] Disability Discrimination Act 1993 (Cth) s 3.
[35] Purvis [2003] HCA 62; (2003) 217 CLR 92, 135.
[36] See, eg, Power v Aboriginal Hostels Ltd [2003] FCA 1475; (2003) 133 FCR 254, 259 (Selway J).
[37] It is almost certain that the word 'with' here is a drafting error, and should be 'without'. See Fetherston v Peninsula Health [2004] FCA 485 (Unreported, Heerey J, 23 April 2004) [90].
[38] Purvis [2003] HCA 62; (2003) 217 CLR 92, 159.
[39] [2004] FCA 485 (Unreported, Heerey J, 23 April 2004). See the text accompanying n 14–19.
[40] [2005] FMCA 2 (Unreported, Driver FM, 7 February 2005).
[41] Ibid [38].
[42] Ibid [145].
[43] Ibid.
[44] See the text accompanying n 7–11.
[45] See above Part I(A)(1) entitled 'Internal tension'.
[46] See above Part I(A)(4)–(5).
[47] Purvis [2003] HCA 62; (2003) 217 CLR 92, 175.
[48] Ibid 161.
[49] Ibid 162.
[50] Ibid.
[51] Ibid 161 (Gummow, Hayne and Heydon JJ).
[52] Those areas in which illegal discrimination may occur, but in which the unjustifiable hardship defence was not available when Purvis was decided, are listed by McHugh and Kirby JJ in Purvis [2003] HCA 62; (2003) 217 CLR 92, 123.
[53] Disability Discrimination Act 1992 (Cth) s 11(a).
[54] Disability Discrimination Act 1992 (Cth) s 11(b).
[55] Purvis [2003] HCA 62; (2003) 217 CLR 92, 123 (emphasis in original).
[56] Ibid.
[57] See Disability Discrimination Act 1992 (Cth) s 22(4).
[58] Purvis [2003] HCA 62; (2003) 217 CLR 92, 129.
[59] Ibid.
[60] See Purvis v New South Wales (Department of Education and Training) (2002) 117 FCR 237, 247–8 (Spender, Gyles and Conti JJ).
[61] The observation of McHugh and Kirby JJ in Purvis that 'construing the Act narrowly because of the consequences in a particular case may lead to injustices in other cases perceived by the judicial mind as more deserving' alludes to the same point: see Purvis [2003] HCA 62; (2003) 217 CLR 92, 103–4.
[62] Disability Discrimination Act 1992 (Cth) s 3(a).
[63] As Edwards observes, the majority does not advert to the role played in its interpretation of s 5(1) by the unavailability of the unjustifiable hardship defence in the context of the facts of Purvis: Samantha Edwards, 'Purvis in the High Court Behaviour, Disability and the Meaning of Direct Discrimination' [2004] SydLawRw 30; (2004) 26 Sydney Law Review 639, 650.
[64] Purvis [2003] HCA 62; (2003) 217 CLR 92, 158 (Gummow, Hayne and Heydon JJ).
[65] Ibid (emphasis in original).
[66] Ibid (footnote omitted), quoting Disability Discrimination Act 1995 (UK) s 5(1) (emphasis added by the High Court of Australia).
[67] Ibid (emphasis in original).
[68] Ibid.
[69] See the observations to the contrary in Clark v TDG Ltd (t/a Novacold Ltd) [1999] EWCA Civ 1091; [1999] 2 All ER 977, 987 (Mummery LJ).
[70] Purvis [2003] HCA 62; (2003) 217 CLR 92, 162 (Gummow, Hayne and Heydon JJ).
[71] Ibid.
[72] See text accompanying n 14–19 above.
[73] Purvis [2003] HCA 62; (2003) 217 CLR 92, 158 (Gummow, Hayne and Heydon JJ).
[74] Ibid 162 (Gummow, Hayne and Heydon JJ).
[75] Ibid.
[76] But not always a foregone conclusion — see above Part I(A)(3) entitled 'The modest role accorded to s 5(1)'.
[77] Cf the assertion of Gleeson CJ to the contrary: Purvis [2003] HCA 62; (2003) 217 CLR 92, 101.
[78] Disability Discrimination Act 1992 (Cth) s 10(b).
[79] Purvis [2003] HCA 62; (2003) 217 CLR 92, 99.
[80] Ibid 101.
[81] Ibid 100.
[82] Ibid 99.
[83] Ibid.
[84] Ibid 98.
[85] Ibid.
[86] Ibid.
[87] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
[88] Purvis [2003] HCA 62; (2003) 217 CLR 92, 98.
[89] Ibid.
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