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Issue #2: May 2004

CASENOTE ON CLARKE

Introduction
Background
Nature of the decision
Comment

Introduction

In Clarke v Catholic Education Office & Anor [2003] FCA 1085 (8 October 2003), Madgwick J of the Federal Court decided that the Catholic Education Office (CEO) had indirectly discriminated against a student with profound deafness by failing to provide an Australian Sign Language (Auslan) interpreter (per s 6 Disability Discrimination Act 1992 (Cth)). The focus of this complaint was that the "model of learning support" proposed by the respondents, for the applicant's deafness, in regard to the terms and conditions on which they were prepared to accept him to the Mackillop Catholic College, did not include the use of Auslan and instead relied on the use of note-taking as the main source of communication in the classroom.[1] It was claimed that the applicant would not have been able to adequately participate and benefit from his classroom education without such sign language support. Thus the question in this case was whether in these circumstances the type of assistance the respondent did offer was reasonable.

Background

Jacob Clarke was born in 1987 with profound congenital deafness. From 1992 to 1999 he attended a Catholic primary school (operated by the CEO) and which many of its students would enter into Mackillop Catholic College at high school level. Throughout his time at primary school, Jacob had help from an Auslan teacher's aid and volunteers who interpreted the voiced words of the teachers and classmates. Funding was also provided for his year 4 and 5 teacher to undertake courses in Auslan.

A series of meetings occurred between the parents and representatives of the respondents concerning Jacob's high school education. The respondents developed a "model of learning support" for Jacob, to assist him in participating in and receiving classroom instruction. This model made it clear that the use of signing support would only be made available if a staff member were to have these skills and be in a position to input into Jacob's learning. Madgwick J believed that is was reasonably clear this interpreting help for Jacob would never eventuate due to the lack of experienced teachers in Auslan employed at the College. However it was also because the respondent failed to call the College Principal, who was the primary force in developing the model of learning for Jacob. This failure allowed Madgwick J to make a Jones v Dunkel[2] inference that her evidence would not have assisted the respondent's case.

Nature of the decision

The applicant was seeking to establish that the respondents' indirectly discriminated against Jacob in relation to the terms and conditions upon which he was offered enrolment at the College (s 22(1)(b) Disability Discrimination Act 1992 (Cth) (DDA)) or through the provision of educational services (s24 (1)(b)). To prove this indirect discrimination, the judgement went through the four steps an applicant would have to establish in order to meet the requirements set out in s 6 of the DDA.

  1. The terms and conditions upon which a service was offered, provided the applicant had to comply with a "requirement or condition";
  2. with which a substantially higher proportion of persons without the disability comply, or are able, to comply with;
  3. with which the applicant does not, or not able to, comply with; and
  4. which is not reasonable in the circumstances of the case.

Madgwick held that Jacob's situation did satisfy the test and indirect discrimination was made out. The reasoning is as set out below.

1. Was this a requirement or a condition? (s 6)

The court compared the Jacob's situation with that in Waters v Public Transport Corporation (1991) 173 CLR 349 in which the case involved the removal of Conductors from trams which made travel extremely difficult for disabled passengers. The Court in that case held that the relevant requirement or condition was that the complainants could only use the services provided by the respondent's trams if they were prepared to "endure" using the trams without the assistance of a conductor. In this case, Jacob could participate and receive classroom instruction provided by the respondents only if he were prepared to "endure" such instruction without the assistance of an interpreter.[3]

Furthermore Madgwick held that the characterisation of the particular goods and services is a question of fact and the relevant requirement or condition must be separate from the service itself.[4] In this Case the court held that the applicant did satisfy this first step because the service of educational classroom instruction that was offered to Jacob, provided that he comply with the requirement that his participation would be without the aid of an Auslan interpreter - which is a requirement that is not inherent in classroom instruction.[5]

2. A condition, which a substantially higher proportion of persons without the disability can comply with (s 6(a))

Here Madgwick J applied the test in Australian Iron & Steel Pty Ltd v Banovic[6] where an "appropriate base group" is compared with the aggrieved person to determine if a "substantial proportion of those individuals in the base group are able to comply with this relevant requirement". In this Case the base group of comparison for Jacob was the other students at the College in his Year 7. In these circumstances it is clear this test is met because a substantial number of these students could and would comply with the requirement of not having an Auslan interpreter assist in their class tuition.

3. The applicant's ability to comply (s 6(b))

A court must look at each 'aggrieved person' to determine whether or not they can meet the condition / requirement to be imposed upon them. The court here, made it clear that compliance with this condition mustn't be at the cost of the individual with the disability being put to any substantial disadvantage in relation to the comparable base group.[7] In this case it was held that Jacob would have faced serious disadvantage if he had complied with the model of learning proposed by his school because he relied heavily upon sign language to communicate and was not confident at lip reading. Thus it would not have been realistic to assume Jacob could comply with the condition of not having an interpreter in his classroom.

4. Reasonableness of the condition (s 6(c))

Madgwick J set out what he perceived as settled propositions of law concerning this reasonableness requirement:[8]

  • Onus of showing that the condition / requirement is not reasonable rests upon the person aggrieved by it.
  • Reasonableness will be decided by having regard to all the circumstances of the case. These include but are not limited to:
    • the nature and extent of the effect of the discriminatory requirement
    • the reasons behind it
    • the possibility of alternative action
    • matters of "effectiveness, efficiency and convenience"
  • The test is an objective one - neither the preferences of the aggrieved nor the convenience of the service provider can be determinative, although they may be relevant factors.
  • The test of reasonableness is "less demanding than one of necessity, but more demanding than a test of convenience." In other words, if the applicant can show that the condition imposed may have been convenient for the service provider but was not reasonable in the circumstances that will suffice.
  • The test is not one of 'correctness', that is, although most would not agree with the condition imposed, it may still be reasonable.

In this case Madgwick J looked to the factors surrounding Jacob's enrolment into the college and found the most important considerations in weighing up the reasonableness of the offer for learning support. These were Jacob's mode of communication, steps taken by the respondents and whether there were any other reasonable alternatives that the respondents could have undertaken. In looking at these considerations, the court found that the applicant's case was made out and that Jacob needed the support of Auslan in the classroom. Furthermore this was a reasonable option because there was available funding and Mr and Mrs Clarke also had money aside to help with the provision of Auslan. In addition, the College could've looked to the Primary School that Jacob attended (and which the CEO operates as well) as an example of the successful integration of normal classroom instruction and the use of Auslan.

Comment

Madgwick J made it clear that this decision may seem surprising to some because the case does not have the "connotations that notions of discrimination against a disabled person has in ordinary language."[9] The court wanted to make it very clear that "discrimination" as defined in ordinary, everyday language is not the same thing as the statutory definitions within the various anti-discrimination statutes. This was highlighted by inclusion of the comments by Brennan CJ and McHugh J IW v The City of Perth and Ors[10] that many anti-discrimination statutes defined discrimination in "a rigid and often highly complex and artificial manner" and that conduct that would be considered discriminatory in the ordinary sense, may actually fall outside of the statutory definition.

Madgwick J felt that this case might be an instance of "the other side of the coin" which is conduct that is not discriminatory in the ordinary sense may be caught by the statutory prohibition.

Judgement was for the applicant.

Damages merely compensatory - $26,000

Amy Wand

[1] [2003] FCA 1085 at [2].

[2] (1959) 101 CLR 298.

[3] [2003] FCA 1085 at [42].

[4] (1991) 173 CLR at 361.

[5] [2003] FCA 1085 at [45].

[6](1987) 168 CLR 165 at 178 and 187.

[7] [2003] FCA 1085 at [45].

[8] Following Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251, Waters v Public Transport Corporation (1991) 173 CLR 349, Commonwealth Bank v Human Rights and Equal Opportunity Commission (1997) 150 ALR 1.

[9] [2003] FCA 1085 at [82].

[10] (1997) 191 CLR 1.