State of New South Wales (Dept of Education) v Human Rights & Equal Opportunity Commission [2001] FCA 1199

FEDERAL COURT OF AUSTRALIA

State of New South Wales (Dept of Education) v Human Rights & Equal Opportunity Commission [2001] FCA 1199

HUMAN RIGHTS – discrimination – alleged discrimination on account of disability – decision to exclude year 7 student from school – where special discipline policy created for student – where student suspended on more than 5 occasions for verbal abuse, swearing, kicking and punching teaching staff and students – where Human Rights and Equal Opportunity Commission found that student's behaviour so closely linked to his disability that if it found less favourable treatment had occurred on ground of behaviour, that would amount to discrimination on the ground of disability – whether school had discriminated "on the ground of" disability – meaning of "disability" within s 4 of Disability Discrimination Act 1992 – distinction between disability and behaviour – relevant comparator test contemplated by s 5 of Disability Discrimination Act 1992 – meaning of "benefit" within s 22(2)(a) of Disability Discrimination Act 1992 – meaning of "detriment" within s 22(2)(c) of Disability Discrimination Act 1992 – distinction between direct and indirect discrimination contemplated by s 5 and s 6 of Disability Discrimination Act 1992 WORDS & PHRASES – "on the ground of" – "disability" – "benefit" – "detriment" Disability Discrimination Act 1992 (Cth) ss 4, 5, 6, 22, 103 Administrative Appeals (Judicial Review) Act 1997 (Cth) s 5

Tate v Rafin [2000] FCA 1582 cited Walters v Public Transport Corporation (1991) 173 CLR 349 cited STATE OF NEW SOUTH WALES (DEPARTMENT OF EDUCATION) v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION & ANOR N1317 OF 2000 EMMETT J 29 AUGUST 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1317 OF 2000

BETWEEN: STATE OF NEW SOUTH WALES (DEPARTMENT OF EDUCATION)