Purvis v State of New South Wales (Department of Education & Training) [2002] FCAFC 106 Purvis v State of New South Wales (Department of Education & Training) [2002] FCA 503 NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC) The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation. The transitional arrangements are as follows: * All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation. * All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series. * All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only. FEDERAL COURT OF AUSTRALIA Purvis v State of New South Wales (Department of Education & Training) [2002] FCA 503 HUMAN RIGHTS – where school excluded student who exhibited antisocial and violent behaviour – where behaviour was consequence of disability – whether discrimination on grounds of behaviour is discrimination under s 22 of the Disability Discrimination Act 1992 (Cth) – proper comparison for purposes of s 5 WORDS AND PHRASES – "disability", "discrimination" Disability Discrimination Act 1992 (Cth), ss 3, 4, 5, 22, 55 Equal Opportunity Act 1984 (WA) X v McHugh (1994) 56 IR 248 not followed HREOC v Mt Isa Mines (1993) 46 FCR 301 referred to IW v City of Perth (1997) 191 CLR 1 distinguished Commonwealth v Introvigne (1981) 150 CLR 258 cited Tate v Raffin [2000] FCA 1582 cited Waterhouse v Bell (1991) 25 NSWLR 99 referred to Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 cited X v Commonwealth (1999) 200 CLR 177 referred to ALEXANDER PURVIS on behalf of DANIEL HOGGAN v STATE OF NEW SOUTH WALES (DEPARTMENT OF EDUCATION AND TRAINING) and HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION N 1320 OF 2001 SPENDER, GYLES and CONTI JJ SYDNEY 24 APRIL 2002 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1320 OF 2001 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: ALEXANDER PURVIS on behalf of DANIEL HOGGAN APPELLANT AND: STATE OF NEW SOUTH WALES (DEPARTMENT OF EDUCATION AND TRAINING) FIRST RESPONDENT HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION SECOND RESPONDENT JUDGE: SPENDER, GYLES and CONTI JJ DATE OF ORDER: 24 APRIL 2002 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant is to pay the costs of the first respondent of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1320 OF 2001 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: ALEXANDER PURVIS on behalf of DANIEL HOGGAN APPELLANT AND: STATE OF NEW SOUTH WALES (DEPARTMENT OF EDUCATION AND TRAINING) FIRST RESPONDENT HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION SECOND RESPONDENT JUDGE: SPENDER, GYLES and CONTI JJ DATE: 24 APRIL 2002 PLACE: SYDNEY REASONS FOR JUDGMENT THE COURT: 1 This appeal concerns the obligations of a school in relation to an enrolled student, Daniel Hoggan ("the complainant"), who exhibited anti-social and violent behaviour by reason of brain damage. The Human Rights and Equal Opportunity Commission ("HREOC") found that expulsion of the complainant was, and some other acts or omissions concerning the management of him were, a breach of s 22 of the Disability Discrimination Act 1992 (Cth) ("the Act"). On application to the Court pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"), Emmett J held that in so finding HREOC had erred in law in various respects, and set the decision aside. This appeal is from that decision. 2 The HREOC decision ran to some 136 pages and was delivered just over twelve months after the hearing was completed. However, the nub of the case is statutory construction. It is appropriate to place the issue of construction in proper context by recounting the facts primarily as they were summarised by the primary judge. Factual Background 3 The complainant was born in 1985 and sustained severe brain injury at about the age of 7 months. He is a ward of the State and has been in the foster care of Alexander Purvis and his wife since 1989. 4 In mid-1996 Mr and Mrs Purvis inquired about enrolling the complainant at the Grafton Primary School for the 1997 school year. Mr and Mrs Purvis met with the then principal of the school and subsequently made an application for enrolment of the complainant. That application was rejected by the then principal. However, a new principal, Mr Barry Bartley ("the principal"), arrived at the school at the beginning of 1997 and discussions ensued involving Mr and Mrs Purvis, the principal and the Department of Education. On 28 February 1997, the principal decided to enrol the complainant in the school. A welfare and discipline policy relating to the complainant was prepared and a staff development day was held for the Year 7 teachers of the complainant to discuss his enrolment, education and participation in the school. The complainant began at the school on 8 April 1997. 5 On 24 April 1997 the complainant was suspended for one day following an incident involving a teacher's aide. On 7 May 1997 he was again suspended for two days for verbal abuse of a teacher's aide and for kicking a fellow student. On 9 May 1997 a report was prepared following tests carried out by the school's counsellor and registered psychologist. The report said that the complainant's literacy and numeracy skills were at pre-school level. On 30 May 1997 the complainant was placed in "time out" during an English class because he kicked a desk over, swore, and kicked other children and bags. There were further incidents of a similar nature on 19, 23 and 24 June and 25 July 1997. On 30 July 1997, the complainant kicked his teacher's aide and was suspended for two days. On 2 September 1997, after kicking a student the complainant was suspended for a further thirteen days, but the suspension was subsequently reduced to eight days. He returned to the school on 15 September 1997 but on 18 September 1997 he was suspended for a further twelve days when he punched a teacher's aide in the back. 6 On 18 September 1997 the principal wrote to Mr and Mrs Purvis expressing his concerns about the complainant's future at the school. He said that he was spending about seven hours a week supporting the complainant's education. On 15 October 1997 a case management meeting was held but no resolution was reached. On 25 October 1997, the school counsellor recommended enrolment of the complainant in the special education unit at Grafton High School. On 4 November 1997 the principal was informed that the Teachers' Federation did not support the complainant's further enrolment at the school. 7 At a meeting held on 18 November 1997, attended by the principal, staff of the school and staff of the Departments of Education and Community Services, it was decided that it was in the complainant's best interests to have him enrol at the special unit at Grafton High School. Mr and Mrs Purvis were informed of that decision on 27 November 1997 by an officer of the Department of Community Services. 8 However, on 2 December 1997, Mr Purvis sent a facsimile communication to the principal announcing his intention to send the complainant back to the Grafton Primary School. At a meeting on 3 December 1997, the principal indicated that he would exclude the complainant from the school. He wrote on the same day to the Department of Community Services saying that he would exclude the complainant because of his concerns for the health and safety of the staff and students at the school. On 17 February 1998 the Assistant Director General (Primary) of the Department of Education rejected an appeal by Mr Purvis against that exclusion. 9 On 22 March 1998, Mr Purvis, acting on behalf of the complainant, lodged a complaint with HREOC alleging that the complainant had been discriminated against by the State of New South Wales in contravention of s 22(2) of the Act. That complaint was lodged pursuant to s 69(1)(c) of the Act. The complaint was investigated by the Commissioner pursuant to s 71(1) and, on 15 October 1998, the Commissioner referred the matter to the HREOC for inquiry pursuant to s 76(1). 10 Pursuant to s 79(1) of the Act, HREOC, constituted by a single person, conducted an inquiry in Grafton on 24-27 May, 2-6 August, 6-10 September and 9-10 November 1999. HREOC then made its determination pursuant to s 103 on 13 November 2000. On 13 November 2001 HREOC made a declaration that, in breach of ss 5 and 22(2) of the Act, the State had discriminated against the complainant on the grounds of his disability. HREOC also ordered that the State pay a total of $49,000 to the complainant as compensation. 11 The findings of discrimination included findings as to discrimination by conduct falling short of expulsion or exclusion. Statutory Provisions 12 Section 3 of the Act is as follows: "The objects of this Act are: (a) to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of: (i) work, accommodation, education, access to premises, clubs and sport; and (ii) the provision of goods, facilities, services and land; and (iii) existing laws; and (iv) the administration of Commonwealth laws and programs; and (b) to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and (c) to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community." 13 For the purposes of the Act, the term "disability" is defined by s 4 of the Act as follows: "'disability', in relation to a person, means: (a) total or partial loss of the person's bodily or mental functions; or (b) total or partial loss of a part of the body; or (c) the presence in the body of organisms causing disease or illness; or (d) the presence in the body of organisms capable of causing disease or illness; or (e) the malfunction, malformation or disfigurement of a part of the person's body; or (f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or (g) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour; and includes a disability that: (h) presently exists; or (i) previously existed but no longer exists; or (j) may exist in the future; or (k) is imputed to a person;" 14 The conduct that amounts to discriminating in the relevant sense is explained in s 5 of the Act as follows: "5. (1) For the purposes of this Act, a person ('discriminator') discriminates against another person ('aggrieved person') on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability. (2) For the purposes of subsection (1), 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. 15 Section 22 of the Act is critical to this case and provides as follows: "(1) It is unlawful for an educational authority to discriminate against a person on the ground of the person's disability or a disability of any of the other person's associates: (a) by refusing or failing to accept the person's application for admission as a student; or (b) in the terms or conditions on which it is prepared to admit the person as a student. (2) It is unlawful for an educational authority to discriminate against a student on the ground of the student's disability or a disability of any of the student's associates: (a) by denying the student access, or limiting the student's access, to any benefit provided by the educational authority; or (b) by expelling the student; or (c) by subjecting the student to any other detriment. … (4) This section does not render it unlawful to refuse or fail to accept a person's application for admission as a student at an educational institution where the person, if admitted as a student by the educational authority, would require services or facilities that are not required by students who do not have a disability and the provision of which would impose unjustifiable hardship on the educational authority." 16 Section 55 of the Act is as follows: (1) The Commission may, on application by: (a) a person: (i) on that person's own behalf; or (ii) on behalf of that person and another person or other persons; or (iii) on behalf of another person or other persons; or (b) 2 or more persons: (i) on their own behalf; or (ii) on behalf of themselves and another person or other persons; or (iii) on behalf of another person or other persons; by instrument grant to the person or persons to whom the application relates, as the case may be, an exemption from the operation of a provision of Division 1 or 2 (other than section 31 or 32), as specified in the instrument. (2) The Commission may, on application by a person to, or in respect of, whom an exemption from a provision of Division 1 or 2 has been granted under subsection (1), being an application made before the expiration of the period to which the exemption was granted, grant a further exemption from the operation of that provision. (3) An exemption, or further exemption, from the operation of a provision of Division 1 or 2: (a) may be granted subject to such terms and conditions as are specified in the instrument; and (b) may be expressed to apply only in such circumstances, or in relation to such activities, as are specified in the instrument; and (c) are to be granted for a specified period not exceeding 5 years." 17 Section 58 is as follows: "This Part does not render it unlawful for a person who has been granted an exemption from a provision of Division 1 or 2, or a person in the employment or under the direction or control of a person who has been granted such an exemption, to do an act in accordance with the provisions of the instrument by which the exemption was granted." 18 Section 10 of the Act is as follows: "If: (a) an act is done for 2 or more reasons; and (b) one of the reasons is the disability of a person (whether or not it is the dominant or a substantial reason for doing the act); then, for the purposes of this Act, the act is taken to be done for that reason." hreoc decision 19 The findings as to disability were as follows: "2.2 Daniel Hoggan's disabilities In his statement, Mr Purvis describes Daniel's disabilities as: "… an intellectual disability which may manifest itself in his behaviour. He also has a visual impairment. His eyes are healthy but the parts of his brain that appreciate what his eyes are seeing have been affected by severe encephalopathic illness which occurred when he was 6 months old. He has epilepsy which is well controlled on his current medications and he has had no seizures for 6 years." Dr Wise gave evidence as follows: "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. The pattern of brain injury that we saw at that time on scans and subsequently, indicated damage to the parieto-occipital lobes on both sides. That's the posterior part of the brain where you receive and integrate visual information but there is also bilateral damage to the frontal lobes. This pattern of damage occurs when a severe illness causes blood supply to the brain to be reduced for a significant length of time. So it's like a stroke which affects that part of the brain which has the least good blood supply at that time and so the intellectual disabilities that Daniel has suffered. The epilepsy which he has suffered, the difficulties with his vision and his difficult behaviour can all be attributed to that serious incident that he had." In relation to Daniel's visual disability, Dr Wise wrote in a neurology report of Daniel on 3 July 1997: "His eyes are healthy, he does not require spectacles but the parts of the brain that appreciate what his eyes are seeing have been affected by his illness. He perceives colours well, perceives shapes but not line drawings, is able to read large print held close to his eyes, will pick movements in his fields of vision such that he is able to navigate his way around unfamiliar environments and he is able to ride his bicycle with a reasonable degree of safety …" When questioned by counsel for the complainant as to the type of behaviour he would expect Daniel to display because of his disabilities, Dr Wise responded: "The major part of his difficult behaviour would be disinhibited and uninhibited behaviour., That is, your frontal lobes are very important for you to smooth out emotional ups and downs, to cope with emotional crises in a relatively even way. So he would be likely to have flares of temper which he wouldn't be able to control as well as a child of his age and with this degree of intellectual handicap who did not have those particular frontal lesions." Mr Lord described the relationship between Daniel's disability and his behaviour in his evidence as follows: "… Daniel, like a lot of children, a lot of people in his circumstances, has enormous difficulties with communication so that they don't have access to the same ways that we have of communicating. Quite often their behaviour – his behaviour quite often is a way of expressing himself, particularly when he's finding it very difficult and very emotional, so rather – and it may well appear to us to be inappropriate." Mr Lord continues: "He acts without a view of consequences or an intent on the behaviour, so he is more prone to strike out, to become – it's probably as a last resort. Initially he may withdraw. As he becomes frustrated he may start talking to himself, he may start sort of using offensive words, to isolate himself or – he may isolate himself and use offensive words – become aggressive and push somebody away, strike out at somebody who is not involved, all as a sense of not being able to articulate what the problem is that he's having with his feelings." … 5.1 Daniel Hoggan … For the purposes of the definition in s 4 (of the Act), Daniel has – (a) an intellectual disability that manifests in unusual individual mannerisms and disturbed behaviour such as rocking, humming, swearing, and at times aggressive behaviour such as hitting or kicking; (b) an intellectual disability that affects Daniel's thought processes, perception of reality, emotions, and results in disturbed behaviour; (c) an intellectual disability which results in Daniel learning differently from a person without the intellectual disability; (d) a visual disability; (e) epilepsy; and (f) a past disability, namely severe encephalopathic illness." 20 The essence of the reasoning of HREOC as to discrimination is captured by the following passage: "… I am satisfied, from all of the evidence before me, that Daniel's behaviour occurs as a result of his disability. Mr Purvis gave evidence that Daniel's intellectual disability "may manifest itself in his behaviour". The evidence of Dr Wise was very clear that Daniel's behaviour and his intellectual disability "all result from severe brain injury". Dr Wise said "the major part of his difficult behaviour would be disinhibited and uninhibited behaviour." Mr Lord said "his behaviour quite often is a way of expressing himself, particularly when he's finding it very difficult and very emotional". I am satisfied that, in this case, Daniel's behaviour is so closely connected to his disability that if I find that less favourable treatment has occurred on the ground of Daniel's behaviour then this will amount to discrimination on the ground of his disability. In making this finding I have followed the decisions in X v McHugh (supra), L v Minister for Education (1996) EOC 92-787, and Y v Australia Post (1997) EOC 92-865. In Y's case, the Commission said at 77-068: "… To discriminate against a person suffering a mental disorder because of the behaviour of that person which directly results from that mental disorder, is to discriminate against that person because of the mental disorder."" Decision of Primary Judge 21 The essence of the reasoning of Emmett J is captured in the following extracts from his judgment: "36. Thus, there is a distinction to be drawn between a disability within the meaning of the Act, on the one hand, and behaviour that might result from or be caused by that disability on the other hand. Less favourable treatment on the ground of the behaviour is not necessarily less favourable treatment by reason of the disability. The position might be different in a case where the disability necessarily resulted in the relevant behaviour. That is not the present case. The behaviour of the Complainant is not ipso facto a manifestation of a disability within the meaning of the Act nor of any disability of the Complainant within the meaning of the Act. 37. As I have observed at paragraph [22] above, the Commission appears to have treated the Complainant's disability as falling within in paragraphs (f) and (g) of the definition of "disability" in s 4. The term "disability" is defined in paragraphs (f) and (g) in terms of a"disorder or malfunction" and a"disorder, illness or disease" respectively. Each of those expressions is then limited by a relative clause that describes certain symptoms of the "disorder or malfunction" or the "disorder, illness or disease". It is only a disorder or malfunction or disorder, illness or disease that is manifested in certain symptoms that will constitute a disability. Thus, it is the disorder or malfunction or the disorder, illness or disease that is the disability. It is not the symptom of that condition that is the disability. 38. It would have been possible for the Parliament to define disability by reference to symptoms that have a particular cause. For example, it would have been possible to define disability as "disturbed behaviour that results from a disorder, illness or disease". If that were the approach adopted, particular behaviour would be a disability. However, the drafting approach also leads to the conclusion that behaviour is not a disability." … 44. Thus, the Commission found that the Principal made his decision because of the Complainant's behaviour and not "because of" his disability, albeit that the behaviour was caused by the disability. The Commission's conclusion was vitiated by its acceptance of the proposition that, because the Complainant's behaviour was so closely connected to his disability, less favourable treatment on the ground of behaviour would amount to less favourable treatment on the ground of disability that caused that behaviour. 45. The Commission, in effect, treated the behaviour of the Complainant as necessarily being a manifestation of his disability. However, while, in the case of the Complainant, his behaviour was in fact the result of or caused by his disability, that behaviour is not necessarily caused by or the result of a disability such as the disability of the Complainant. As such, the Commission misconstrued the operation of ss 5 and 22(2) of the Act. It follows that the Commission erred in its approach as a matter of law, such as to attract s 5(1)(f) of the ADJRAct. … 50. The Commission approached its task on the basis that it was required to compare the treatment of the Complainant with the treatment of other Year 7 students of the School in 1997. The Tribunal concluded that, since no other Year 7 student was excluded or suspended in 1997, the Complainant had been treated less favourably than other students who did not have the Complainant's disability. 51. However, that approach ignores the requirement that actual treatment or proposed treatment must be compared with actual treatment or hypothetical treatment "in circumstances that are the same or are not materially different". The Commission correctly considered the treatment that had been accorded to Year 7 students of the School in 1997. However, it erred in so far as it did not consider the treatment that would have been accorded to a Year 7 student of the School in 1997 who had engaged in behaviour similar to that of the Complainant and who did not have the Complainant's disability. The requirement that the comparison between treatment of an aggrieved person and treatment of a person without the disability in circumstances that are the same or are not materially different requires an examination of the treatment that would be accorded to a student without the Complainant's disability on the hypothesis that such a student had behaved in the same way as the Complainant. 52. If such a hypothetical student would not have been suspended and would not have been excluded from the School, it would follow that the Complainant was treated less favourably than such a hypothetical student. However, if such a hypothetical student would have been treated in the same way, there was no discrimination. The Tribunal does not appear to have made any findings on that question because of the erroneous view that it took of the expression "in circumstances that are the same or are not materially different". The Tribunal erred in law in so far as it failed to do so." Arguments on Appeal 22 Counsel for the appellant submits that the decision of HREOC was in accordance with the established jurisprudence in the field, as shown by the decisions referred to in the HREOC decision quoted above. He submits that Sir Ronald Wilson was correct in his decision in X v McHugh (1994) 56 IR 248, which was applied in later HREOC decisions and in the HREOC decision under review. It is submitted that the direct effects of a disorder should be regarded as indistinguishable from and as a necessary aspect of the disorder, and so part of the disability. He referred to decisions in the workers compensation field in support of that proposition. It was submitted that, for fundamentally the same reason, the primary judge erred in his construction of s 5 in taking a person without the underlying disorder but exhibiting the anti-social behaviour as the comparator. It is put that the approach of the primary judge is to denude the provision of effect in situations like the present. It is submitted that the appellant's argument gains support from the decision of Lockhart J in HREOC v Mt Isa Mines (1993) 46 FCR 301 and from the separate judgments of Toohey J (agreed in by Gummow J) and Kirby J in IW v City of Perth (1997) 191 CLR 1. Counsel appreciated that the present is what he described as a "hard case" but did not shrink from the consequences of the construction of the Act which he propounds. He submitted that s 22(4) is a saving clause in relation to enrolment and that an application for exemption pursuant to s 55 might be made in an appropriate case. 23 Counsel for the respondent supported the reasoning of the primary judge in all respects and, in particular, submitted that the contrary position gives no force to that part of s 5 which refers to like circumstances. Decision on Appeal 24 It does not seem to us that the decisions referred to on behalf of the appellant satisfactorily resolve the issue. The workers compensation cases may be put to one side, having a quite different statutory content and a different history. Whilst entitled to respect, the decision of HREOC in X v McHugh and the HREOC decisions which apply it arose in an employment setting under a previous statute and assert the result without setting out any satisfactory comparative analysis such as is required by s 5 or its equivalent. The dicta of Lockhart J in HREOC v Mt Isa Mines Ltd was directed to a different issue in a different statutory setting. The same may be said of the dicta of Toohey J and Kirby J in IW v City of Perth. Without discarding such guidance as may be gained from these sources, we cannot avoid forming our own view of the proper construction and operation of the Act in the present factual context. 25 It must steadily be borne in mind that the expulsion of the complainant followed repetitive anti-social and violent conduct towards other students and staff which was plainly unacceptable in a primary school. It was disturbing to the function of education and threatened the safety of other students and staff. Those responsible for administration of the school owed a duty of care to the other students in the school, the teachers and the teacher's aides, with potential liability for any breach of that duty (Commonwealth v Introvigne (1981) 150 CLR 258). The disorder as such was ultimately not relied upon by the school in order to prevent enrolment (cf s 22(1)), notwithstanding the potential for anti-social conduct which it involved. If it had been, then it may be that there would have been discrimination, subject to the operation of s 22(4). We do not need to decide that question. The problem was that, once enrolled, the school was not able to cope with the conduct of the complainant which in fact ensued, despite considerable time and effort. 26 The consequence of the argument for the appellant and the HREOC decisions to the same effect (if correct) is that, once enrolled, any treatment of the student by the school authorities as a result of conduct caused by his disorder which restricted or disadvantaged him compared with the ordinary student would be discrimination in breach of the Act, no matter how necessary to preserve the discipline of the school and safety of staff and students. On this argument, any exclusion from ordinary classes, or special physical or other restraints imposed as the price of attendance at ordinary classes, would be a breach of s 22(2)(a) or (c), as the antisocial behaviour caused by the brain damage would be the cause of the special and detrimental treatment. The findings of discrimination which were made by HREOC in relation to acts or omissions other than expulsion go further and impose positive duties on the school to manage the conduct of the student, presumably regardless of cost or impact upon other school activities, without explaining why such special measures would not involve a breach of s 22(2)(a) or (c). The critical points are that there is no criterion of reasonableness in s 22(2) and no equivalent of s 22(4) in relation to a student once enrolled. 27 Counsel for the appellant accepted that if the school could not manage the student, once enrolled, because of the violent and antisocial behaviour of the student, the only escape would be an application for exemption pursuant to s 55. Such a counter-intuitive, indeed extraordinary, result would require a very clear statutory basis. We do not regard s 55 as providing an escape from the otherwise draconian consequences of the construction of s 22 urged upon us on behalf of the appellant. The problems inherent in such a discretionary application for exemption are illustrated by this case. Consideration of the present question took many days of hearing and took over a year to decide, to which must be added the time taken by the judicial review which is still in progress. The time involved would be exacerbated in relation to an application under s 55 by the merits review provided for by s 56. Apart from the time, expense and staff disruption involved, the school would ultimately be subject to a discretionary judgment by a body which does not have the responsibility for managing the student. Even if s 55 can be read as authorising an exemption in the case of an individual student, it is ill-designed to deal with such an issue in a case like the present. Most importantly, what is the position of the school and those at the school whilst the availability of an exemption is being decided? The staff and other students will live with the threat of injury or abuse, may suffer actual injury or abuse, and classes and other educational endeavours will be disrupted. In addition, those affected may be without remedy, as the school authorities are hamstrung by the law in adopting normal measures of control. It is also obvious that if s 22 works in the fashion contended for, there would be great pressure upon a school to refuse admission and rely upon s 22(4), rather than take any risk as to handling a student after admission. This is counter-productive so far as the objects in s 3 of the Act are concerned. 28 In our opinion, given the findings by HREOC as to primary fact, Emmett J was correct in holding that HREOC had misdirected itself as to the proper construction of s 4 of the Act in regarding the conduct of the complainant which occasioned the actions of those in charge of the school as part of the disability of the complainant. In our opinion, that conduct was a consequence of the disability rather than any part of the disability within the meaning of s 4 of the Act. This is made quite explicit in subs (g), which most appropriately describes the disability in question here and which distinguishes between the disability and the conduct which it causes. The same may be said of subs (f). The other subsections do not involve conduct. 29 In the particular circumstances of this case, the proper comparison for the purposes of s 5 of the Act, in order to test the relevance of the disability, as such, is between the treatment of the complainant with the particular brain damage in question and a person without that brain damage but in like circumstances. This means that like conduct is to be assumed in both cases. The failure to make this comparison led to the capricious result arrived at by HREOC. Each alleged act of discrimination is to be judged in the light of the conduct of the complainant which had taken place up to that time. The question to be answered at each point (including expulsion) is whether the consequence would have been the same (or worse) if the conduct had been that of a pupil not affected by brain damage. As pointed out by Emmett J, it is at least possible that inquiry may show that the complainant was treated more harshly than another exhibiting similar conduct at school, but without the disability, would have been. This essential comparison was not carried out by HREOC, which accordingly fell into error of law in the application of s 5 of the Act. 30 It follows that we do not agree that the statement summing up earlier HREOC decisions, and applied in the HREOC decision under review, that to discriminate against a person suffering a mental disorder because of the behaviour of that person which directly results from that disorder is to discriminate against that person because of the mental disorder, is applicable in circumstances such as the present. In the first place, it assumes, rather than demonstrates, the existence of discrimination and does not reflect the language of ss 4 or 5 of the Act. In the second place, it is, in reality, an application of the "but for" test, the difficulties of which in this field (albeit in relation to another statute) are explained by Lockhart J in HREOC v Mt Isa Mines Ltd at 326. 31 We should say something about the respective judgments of Toohey J and Kirby J in IW v City of Perth as we were pressed with them by counsel for the appellant. The structure of the Equal Opportunity Act 1984 (WA) in general, and s 66A in particular, is different from that of the Act in issue here. Section 66A(1) includes an extended definition of discrimination on the ground of impairment which includes discrimination on the ground of a characteristic that is generally imputed to persons having the same impairment as the aggrieved person. This appears to have been influential, and perhaps decisive, in the reasoning of each of Toohey J (at 34) and Kirby J (at 68-69). In our opinion, this reasoning cannot be transposed to the language of ss 4 and 5 of the Act. 32 If the statement of a more general principle was intended, to the effect that a comparison between the actual and the hypothetical for the purpose of assessing the existence of discrimination can never involve the hypothetical including behaviour of the kind exhibited by the actual, then we respectfully disagree. The problem is illustrated by taking the example given by Toohey J (at 33): "On the construction for which the respondents contended, if dangerousness was a characteristic imputed to paranoid or schizoid personalities, there could be no discrimination against persons with those personalities." The principal object of the Act is to eliminate discrimination on the ground ofdisability (of the defined kind) in the nominated areas (s 3). The object is to remove prejudice or bias against persons with a disability. The relevant prohibition here is against discrimination on the ground ofthe person's disability (s 22). Section 5 of the Act is related to the assessment of that issue. It is difficult to illustrate the comparison called for by s 5 by way of a wholly hypothetical example, as it involves a comparison of treatment by the particular alleged discriminator, and requires findings of fact as to the particular disability, as to how the alleged discriminator treats or proposes to treat the aggrieved person, and as to how that alleged discriminator treats or would treat a person without the disability. The task is to ascertain whether the treatment or proposed treatment is based on the ground of the particular disability or on another (and non-discriminatory) ground. There must always be that contrast. To be of any value, the hypothetical illustration must make assumptions as to all factual integers. 33 The example given by Toohey J in relation to paranoid or schizoid personalities is at a high level of generality. The characteristics of the particular complainant are not known – had there been any violence, and if so when, how often and under what circumstances, what medical treatment was being undertaken, what compliance had there been with the medical treatment, and so on. The particular conduct by the discriminator is not known – was it related to employment, education, access to facilities, sport or something else. How the particular alleged discriminator had treated or would treat others in similar circumstances is not known. 34 It is not correct to assume that taking a comparator with a similar history of behaviour will never reveal discrimination. In fact, taking such a comparator is calculated to reveal whether the conduct of the alleged discriminator is as a result of prejudice because of the particular disability. Assume that a person with a schizoid personality is expelled from a rugby club because he was sent off twice in a season for violent play. It would be unhelpful to compare that actual situation with a hypothetical example of a player who had never been sent off for violent play during his whole career. Of course such a person would not be expelled. If that comparator is taken, a false positive reading of discrimination would result. The true comparison is to ask what had happened (or would happen) to players with a similar record. If history had shown that they had been (or would be likely to be) expelled, that would deny discrimination. If not, discrimination would be revealed, absent a convincing explanation of the differences in treatment on behalf of the club. This is consistent with the reasoning of Wilcox J in Tate v Raffin [2000] FCA 1582 at [66]-[68]. The discussion of discrimination by Clarke JA in Waterhouse v Bell (1991) 25 NSWLR 99, particularly at 106-108, is illuminating as to the need to focus on the real ground for the conduct alleged to be discrimination. The "Typhoid Mary" example given by Mahoney JA in Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 at 21 (discussed by Clarke JA in Waterhouse at 115F) is also instructive in that respect. 35 We do not wish to go beyond the precise circumstances of this case and generalise further or deal with the many hypothetical situations which might be imagined, some of which were mentioned during argument. As the cases to which reference has been made reveal, the issue of what constitutes the proper comparison called for by discrimination legislation has been much discussed in judgments and commentaries in Australia and overseas. Analysis is not made easier because of the differences in statutes, and it is difficult not to conclude that some of the reasoning has been affected by a view as to outcome. The safest course is to be guided by the ordinary meaning of the words of ss 4 and 5 of the Act as they apply to the facts of this case. If we had been persuaded that Emmett J was in error in relation to what constituted the disability in this case, the need to examine the question of the comparison required by s 5, and the authorities which deal with similar questions, in depth, would have arisen. 36 In conclusion, we should say something of the case of X v Commonwealth (1999) 200 CLR 177 which was briefly referred to in argument. The issue in that case was different from that here because the discrimination related to employment and was conceded by the Commonwealth. Although this means that the decision has no value as a precedent on that point, we would not regard a conclusion of discrimination in that case as necessarily inconsistent with our decision in this case. The issue of HIV infection arose at the point of enrolment in the Army, and a blanket policy was in question in circumstances where it was only potential rather than actual consequences which were relevant, viz, the future risk of infecting others if certain conditions occurred. The manner in which the Commonwealth had dealt with other persons with infectious disease may have made it clear that the policy in question was tantamount to acting on the basis of the condition alone, and so discriminatory, subject to the arguments as to lawfulness which were the subject of the litigation. The basis for the concession is not known. As we said earlier, it may be that the same result would have ensued here at the point of enrolment because of s 22(1), subject to s 22(4). When adverse circumstances actually occur after enrolment, the situation is quite different. 37 The appeal is dismissed. The appellant is to pay the costs of the first respondent. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court. Associate: Dated: 24 April 2002 Counsel for the Appellant: S Gageler SC and K Eastman Solicitor for the Appellant: Legal Aid Commission of New South Wales Counsel for the Respondent: C Ronalds Solicitor for the Respondent: New South Wales Crown Solicitor Date of Hearing: 19 February 2002 Date of Judgment: 24 April 2002