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) APPLICANT AND: HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION FIRST RESPONDENT ALEX PURVIS on behalf of DANIEL HOGGAN SECOND RESPONDENT JUDGE: EMMETT J DATE OF ORDER: 29 AUGUST 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The decision of the First Respondent of 13 November 2000 be set aside. 2. The matter be remitted to the First Respondent to make findings and recommendations according to law.. 3. The second respondent pay the applicant's costs of the proceeding. 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 1317 OF 2000 BETWEEN: STATE OF NEW SOUTH WALES (DEPARTMENT OF EDUCATION) APPLICANT AND: HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION FIRST RESPONDENT ALEX PURVIS on behalf of DANIEL HOGGAN SECOND RESPONDENT JUDGE: EMMETT J DATE: 29 AUGUST 2001 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant, the State of New South Wales, through its Department of Education ("the State"), conducts the South Grafton High School ("the School"). On 13 November 2000, the first respondent, the Human Rights and Equal Opportunity Commission ("the Commission"), made a declaration that, in breach of ss 5 and 22(2) of the Disability Discrimination Act 1992 (Cth) ("the Act"), the State had discriminated against the second respondent, Daniel Hoggan ("the Complainant"), on the grounds of the Complainant's disability. The Commission also declared that the State pay the sum of $49,000 to the Complainant as compensation. The State now seeks an order of review of the decision of the Commission under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR(Cth) ("the ADJR Act"). 2 Section 5(1) of the ADJR Act provides that a person who is aggrieved by a decision to which the Act applies may apply to the Court for an order of review in respect of the decision on any one or more of the grounds set out in s 5(1). It is common ground that the State is a person aggrieved within the meaning of s 5(1) and that the decision of the Commission is a decision to which the ADJR Act applies. The State relies on the ground in s 5(1)(f) of the ADJR Act that the decision involved errors of law. The Commission is a party to the proceeding but has filed a submitting appearance. The Complainant, through his foster father, Alex Purvis ("Mr Purvis"), is the contradicting respondent in the proceeding. STATUTORY FRAMEWORK 3 Section 22(2) of the Act provides as follows: "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 The conduct that amounts to discriminating is relevantly explained in ss 5 and 6 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. 6. 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 the discriminator requires the aggrieved person to comply with a requirement or condition: (a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and (b) which is not reasonable having regard to the circumstances of the case; and (c) with which the aggrieved person does not or is not able to comply." 5 For the purposes of the Act, the term "disability" is defined 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;" 6 Section 69(1) of the Act relevantly provides that a complaint alleging that a person has done an act that is unlawful under a provision of Part 2, which includes s 22, may be lodged with the Commission by a person on behalf of another person aggrieved by that unlawful act. Under s 71(1), if such a complaint is made to the Commission, and it appears to the Commission that a person has done an act that is unlawful under a provision of Part 2 of the Act, the Commission must notify the Disability Discrimination Commissioner appointed under s 113 of the Act ("the Commissioner"). The Commissioner must enquire into the alleged unlawful act and endeavour, by conciliation, to effect a settlement of the matter to which the Act relates. Under s 76(1), if the Commissioner thinks that a matter cannot be settled by conciliation, has endeavoured to settle a matter by conciliation but has not been successful, or thinks that the nature of the matter is such that it should be referred to the Commission, the Commissioner must refer the matter to the Commission. 7 Section 79(1) of the Act requires the Commission to hold an enquiry into each complaint referred to it under s 76(1). Under of s 98(1), for the purposes of any enquiry, the Commission Commission: · is not bound by the rules of evidence, · must conduct the enquiry with as little formality and technicality as the requirements of the Act and a proper consideration of the matter permit, · it may give directions relating to procedure in order to reduce costs of delay and facilitate a prompt hearing of the issues between the parties, and · may give such directions as it considers are appropriate or necessary to ensure that justice is done. 8 Under s 103(1), after holding an enquiry, the Commission may either dismiss the complaint that is the subject of the enquiry or, if it finds the complaint substantiated, so find and make a determination. A determination may include: · a declaration that the respondent had engaged in conduct that is unlawful under a provision of Part 2 of the Act; · a declaration that the respondent should pay to a complainant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent. 9 Under s 103(2), a determination under s 103(1) is not binding or conclusive between any of the parties to the determination. However, under s 105A, the Commission, a complainant or a person acting on behalf of a complainant may commence proceedings in the Federal Court for an order to enforce a determination under s 103(1). Under s 105A(2), if the Court is satisfied that the respondent has engaged in conduct or committed an act that is unlawful under the Act, the Court may make such orders (including a declaration of right) as it thinks fit. By virtue of s 105A(5), however, a question in any such proceeding in the Federal Court whether the respondent has engaged in conduct or committed an act that is unlawful under the Act is to be dealt with by the Court by way of hearing de novo. FACTUAL BACKGROUND 10 The Complainant sustained severe brain injury at about the age of 7 months as a consequence of which he has an intellectual disability that manifests itself in his behaviour. He is a ward of the State and has been in the foster care of Mr Purvis and Mr Purvis' wife, Mrs Clemency Purvis, since 1988. 11 In mid-1996 Mr and Mrs Purvis enquired about enrolling the Complainant at the 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. 12 However, 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. 13 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. 14 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. 15 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 inclusion at the School. 16 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. 17 However, on 2 December 1997, Mr Purvis sent a facsimile communication to the Principal announcing his attention to send the Complainant back to the 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. 18 On 22 March 1998, Mr Purvis, acting on behalf of the Complainant, lodged a complaint with the Commission alleging that the Complainant had been discriminated against by the State 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 Commission for enquiry pursuant to s 76(1). 19 Pursuant to s 79(1) of the Act, the Commission, constituted by Mr Graeme Innes, conducted an enquiry in Grafton on 24-27 May, 2-6 August, 6-10 September and 9-10 November 1999. The Commission then made its determination pursuant to s 103 on 13 November 2000 and made the declarations referred to in paragraph [1] above. It is unfortunate that it took in excess of 12 months for the Commission to make its determination. THE COMMISSION'S DETERMINATION 20 In its reasons, the Commission recorded that it was not in dispute that the Complainant has a disability for the purposes of the Act. In this proceeding in the Federal Court, it was accepted on behalf of the State that the Complainant suffers from a disability within the meaning of the Act. It isHowever, the characterisation of the disability, however, that may givedisability has given rise to some dispute. 21 The Commission described the Complainant's disability in the following terms: "For the purposes of the definition in s.4, [the Complainant] 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 [the Complainant's] thought processes, perception of reality, emotions, and results in disturbed behaviour; (c) an intellectual disability which results in [the Complainant's] learning differently from a person without the intellectual disability; (d) a visual disability; (e) epilepsy; and (f) a past disability, namely severe encephalopathic illness." 2322 The language of paragraphs (a) and (b) in that description are reminiscent of paragraph (g) in the definition of "disability" in s 4 of the Act. The language of paragraph (c) is reminiscent of the language of paragraph (f) of that definition. However, the Commission does not appear to have made any determination or finding as to whether the "intellectual disability" referred to in paragraphs (a), (b) and (c) of the description is a "disorder",a "malfunction", an "illness"ora "disease", being the terms used in the definition in the Act. 23 The Commission found that the Complainant's behaviourbehaviour and his intellectual disabilityall result from the severe brain injury that he suffered. The Commission considered that the Complainant's behaviour is so closely connected to his disability that, if it found that less favourable treatment had occurred on the ground of that behaviour, that would amount to discrimination on the ground of the disability. The Commission concluded that to discriminate against a person suffering a mental disorder because of the behaviour of that person that directly results from that mental disorder is to discriminate against that person because of the mental disorder within the meaning of s 5 of the Act. The Commission's reasons do not include any formal finding that the complaint of the Complainant was "substantiated". However, the Commission concluded that the Complainant's exclusion from the School was on the ground of his disability. 24 The Commission found that Principal's decision was taken as a result of the Complainant's behaviour and that the Principal believed that that behaviour impacted on the safety and welfare of the Complainant, other students and staff. It also found that the decision was taken, in the Principal's view, because of the Complainant's inability to cope with the stresses of high school life resulting offrom his disability. The Commission concluded, nevertheless, that the exclusion was a breach of s 22(2) of the Act. It considered that exclusion was clearly less favourable treatment, as the Complainant was prevented from attending the School and was denied access to the benefits provided by the School. 25 The Commission accepted that circumstances may not be the same for a Year 7 student as for a Year 12 student. The Commission also accepted that treatment of students might vary from year to year because different staff may implement policies differently from year to year. Accordingly, in considering whether the treatment of the Complainant fell within s 5 of the Act, the Commission had regard to the circumstances of a Year 7 student at the School in 1997. The Commission considered that the Complainant needed to establish only that he was treated less favourably than another Year 7 at the School who did not have the same disability. The Commission found that no other student in Year 7 was excluded from the School in 1997. 26 The Commission rejected the proposition that a comparison should be made with another student who did not have the Complainant's disability and exhibited behaviour similar to that of the Complainant, such as hitting or kicking teacher's aides and other students. That is to say, the Commission rejected the proposition that the treatment of the Complainant should be compared with the treatment that would have been accorded to a student in Year 7 of the School in 1997 who behaved in the same way as the Complainant but did not have the Complainant's disability. 2827 The Commission also concluded that the five suspensions of the Complainant while a student during 1997 also constituted discrimination in breach of s 22(2). The suspensions were considered to constitute less favourable treatment, since the Complainant was deprived of the benefit of attending School. That treatment, which was a result of the Complainant's behaviour, was regarded as being on the ground of the Complainant's disability. 2928 The Commission also concluded that the Complainant had been subjected to "other detriments" within the meaning of s 22(2)(c). Thus, the Commission concluded that the Department of Education failed to be flexible in the modification of the welfare and discipline policy adopted with respect to the Complainant. The Commission regarded that as a serious matter since the suspension and exclusion decisions were made on the basis of that policy. The Commission concluded that the inflexibility of the policy adopted and the impact that it had in the making of the decisions to suspend and exclude the Complainant constituted a detriment within 28 the meaning of s 22(2)(c). 29 Further, the Commission considered that it was a detriment within the meaning of the TheThe Commission considered that that was a detriment within the meaning of the Act that the Complainant was taught, in the main, by teacher's aides, whereas other children at the School were taught by the ordinary teaching staff.Act. The Commission accepted that, in making a choice to send the Complainant to his local school, Mr and Mrs Purvis knew that the services of teachers trained and experienced in "special education" would not be available. Nevertheless, the Commission was satisfied that "the limited attempts by [the School] to make training available to [the Complainant's] teachers" constituted subjecting the Complainant to a detriment in terms of s 22(2)(c). On the other hand, the Commission considered that that failure added little to its conclusion that the exclusion of the Complainant was in breach of s 22(2). 30 Several experts in special education attended a case management meeting at the School on 8 August 1997. Frustration was expressed by teachers at the School about not knowing how to report on the Complainant. Further, there was uncertainty as to whether teachers were doing anything forassisting the Complainant academically. The experts agreed to "come back with some recommendations". A report was prepared by them, but it was never given to the Principal or to the case management team dealing with the Complainant. The Commission concluded that the failure to obtain such assistance until a late stage and then not to act on the recommendations constituted subjecting the Complainant to a detriment for the purposes of s 22(2)(c). 31 The Commission also concluded that the Principal's decision to exclude the Complainant did not comply with the Department's policy and procedures concerning suspension, exclusion and expulsion of students from School. That policy relevantly contains the following: "(1) Exclusion is not a substitute for expulsion. Accordingly exclusion may take place only where a long suspension has not resolved the problem, and it is considered that the student might develop self-discipline and co-operative behavior in a suitable alternative school. (2) Where a student is excluded from the school district office staff, in conjunction with the Principal and parents or care-giver, will arrange a suitable alternative placement for the student within ten school days. If this cannot be arranged an application for expulsion or a return to the school are the only options. (3) The Principal must immediately notify the parents or care-giver in writing of an intended exclusion from the school…" 32 The Commission concluded that, although there had been discussions of the Complainant's possible enrolment in the support unit at Grafton High School over a long period of time, the Principal of the School did not make arrangements for an alternative placement for the Complainant after his exclusion from 3 December 1997. The Commission concluded that that was a failure to follow departmental policy and that that constituted subjecting the Complainant to a detriment within s 22(2)(c). 33 The Commission reached the following conclusions concerning compensation: "I am satisfied that damages should be awarded under the following heads: · the suspensions and exclusion fall under the head of the loss of the environment of attending school with consequent benefits such as access to library, classroom, recreational and other school facilities; access to normal peer interaction which is analogous to loss of enjoyment of normal working environment; · loss of the opportunity to complete secondary education at school and the affect of exclusion on life chances including future employment chances and earning opportunities; · loss of the expectation of receiving a secondary education in a regular and local school environment; and-or · loss of the right to obtain the benefit of such an education. ……………………… I have made the following awards of damages for the various incidents of discrimination based on my appreciation both of the facts and of the appropriate awards of damages in this area. · For the first two suspensions, which were short suspensions, I have awarded $2000 each. · For the next three suspensions, which were long suspensions, I have awarded $5000 each. · For the exclusion, and the consequential loss of opportunity and enjoyment of school environment described above I have awarded $20000. · For the inflexibility regarding the amendment of Daniel's discipline and welfare policy I award $2000. · For the diminished opportunity provided to Daniel by the respondent's failure to provide teachers with training or awareness programs I award $4000. · For the diminished opportunity provided to Daniel by the respondent's failure to consult with experts in special education I award $4000. · This is a total damages award of $49000 to be paid within 28 days of the date of this decision." THE GROUNDS OF REVIEW 34 The State asserts a number of errors of law on the part of the Commission in making its determination. The grounds relate to the following matters: (1) the phrase "discrimination on the ground of a disability" in s 5(1) of the Act; (2) the application of s 5(2) of the Act; (3) the conception of "the relevant comparator" in the application of s 5 of the Act; (4) the word "benefit" in s 22(2)(a) of the Act; (5) the word "detriment" in s 22(2)(c) of the Act; (6) the treatment of the Support Unit at Grafton High School. I shall deal with each of those matters separately. DISCRIMINATION ON THE GROUND OF A DISABILITY 35 Psychological disabilities may constitute a "disability" within the meaning of the Act. Such psychological disabilities may cause a person to behave differently from the way in which a person who does not have that disability would behave. However, where an educational authority is unaware of the disability, but treats a person differently, namely, less favourably, because of that behaviour, it could not be said that the educational authority has treated the person less favourably because of the disability – see Tate v Rafin [2000] FCA 1582 paragraphs [64]-[67]. 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 clear that 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. 39 Some light is thrown on the way in which s 5 operates by the language of s 6. Section 6 of the Act is concerned with indirect discrimination. The discrimination described in s 5s 6 is often referred to as "indirect" discrimination. The major difference between the two types of discrimination is that, in the case of direct discrimination, the treatment is, on its face, less favourable. However, in the case of indirect discrimination, the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable – Walters v Public Transport Corporation (1991) 173 CLR 349 at 392. 40 The presence of s 6 in the Act indicates that a construction must be given to the expression "on the ground of" in s 5 which is literal. That is to say, if an educational authority treats a person less favourably than it would treat another person in the same or similar circumstances on the ground of the first person'semphasis must be placed on the expression "because of the aggrieved person's disability" in s 5. In particular, "disability" must be interpreted literally, in accordance with the definition in s 4. As I have indicated in paragraph [37] above, the definition draws a distinction behaviour, that is not the same as treating that person in that way on the ground of a disability, in circumstances where that behaviour might or might not be caused by or be the result of that disability. Thus, discrimination on the ground of a particular behaviour will not necessarily be discrimination on the ground of a disability, even if that behaviour is caused by or is the result of a disability within the meaning of the term as defined in the Act. between disorder or malfunction or disorder, illness or disease ("the disability"), and particular symptoms of the disability. Section 5 clearly contemplates a situation where a complainant is discriminated "because of" the disability. Section 6(a), on the other hand, contemplates a situation where discrimination operates indirectly. One example of such indirect discrimination would be requiring a complainant to act in a way that was made impossible by a person's disability. Thus, an illustration of conduct that might fall within s 6(a), based on the facts in the present case, would be the situation where the School expelled the Complainant because he continued to swear and demonstrate violent behaviour. 41 The Commission concluded that the Complainant's behaviour occurs as a result of his disability and that, accordingly, his behaviour is so closely connected to his disability that, if less favourable treatment has occurred on the ground of the Complainant's behaviour, then that will amount to discrimination on the ground of his disability. The thrust of the State's complaint under this head is that the Commission erred in equating the manifestation of a disability with the disability itself. The State contended that, in concluding that discrimination on the ground of behaviour constituted discrimination on the ground of disability that had caused that behaviour, the Commission was in error. 42 Counsel for the complainant contended that there was no error of law on the part of the Commission in making its determination. Counsel pointed to the finding that: "The reason for [the complainant's] exclusion… related to [his] behaviour leading to the five suspensions and throughout the period of his enrolment at [the School]. It also related to [the Principal's] judgment that [the Complainant] could not operate in a regular high school environment as a result of his disability. [The Principal's] underlying reasoning… included issues broader than just behaviour. Certainly [the Complainant's] behaviour (and its impact on himself and other students and staff) was a factor, but it was not the only factor. The decision also related to [the Principal's] perceptions of [the Complainant's] success socially and educationally." 43 However, it is clear from the following finding that the Commission's reasons were based on a conclusion that the Principal's decision was made by reason of the Complainant's behaviour rather than his disability: "[The Principal's] decision was taken as a result of [the Complainant's] behaviour, which [the Principal] believed impacted on the safety and welfare of [the Complainant], other students and staff. It was also taken, in [the Principal's] view, as a result of [the Complainant's] inability to cope with the stresses of high school life, as a result of his disability. Whilst I am sure [the Principal] took this decision for what he saw as [the Complainant's] best interests, none the less it was in breach of sections 5 and 22(2) of the Act." [emphasis added] 44 Thus, the Commission found that the Principal made his decision because of the Complainant's behaviour and not because of"because of" his disability, albeit that the behaviour was caused by the disability. The Commission's conclusion was visciatedvitiated 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. APPLICATION OF SECTION 5(2) OF THE ACT 46 The State asserts that the Commission found that s 5(2) imposes an obligation on an alleged discriminator to provide an aggrieved person with accommodation or services and that such accommodation and services must be reasonably proximate to the disability of the aggrieved person. Thus, there are two questions raised by this ground. The first is whether the Commission made an error by finding that s 5(2) of the Act imposes an obligation upon an alleged discriminator to provide an aggrieved person with reasonable accommodation or services in relation to the disability. The second is whether the accommodation or services must be "reasonably proximate" to the disability of the aggrieved person. 47 Section 5(2) is concerned with "different accommodation or services". The terms "accommodation" and "services" are defined in s 4 of the Act as follows: "'accommodation' includes residential or business accommodation; ……………………… 'services' includes: (a) services relating to banking, insurance, superannuation and the provision of grants, loans, credit or finance; or (b) services relating to entertainment, recreation or refreshment; or (c) services relating to transport or travel; or (d) services relating to telecommunications; or (e) services of the kind provided by the members of any profession or trade; or (f) services of the kind provided by a government, a government authority or a local government body;" 48 This case does not appear to me to have anything to do with "accommodation" or "services" in the sense defined. In any event, the Commission does not appear to have relied on s 5(2) in the reasoning process that led to its determination and declarations. Further, I do not read the Commission's reasons as containing a conclusion that s 5(2) imposes a positive obligation on the "discriminator". Accordingly, neither of the above questions arises. Thus, s 5(2) does not appear to have any relevant application in the present case. THE APPROPRIATE COMPARATOR 49 There is an unlawful act by the operation of s 22 only where an educational authority discriminates against a student on the ground of disability. Section 5(1) saysdescribes what amounts to discriminating against a student on the ground of disability. The section calls for a comparison. The comparison is to be made between two ways of treating persons with a view to determining whether one way is less favourable than the other. The comparison is to be made between the way in which an educational authority treats or proposes to treat an aggrieved person and the way in which the educational authority treats or would treat another person. That other person, whether actual or hypothetical, might be referred to as the "comparator". 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. THE WORD "BENEFIT" IN SECTION 22(2)(a) OF THE ACT 53 Section 22(2)(a) provides that it is unlawful to discriminate on the ground of a student's disability by denying the student access to benefits provided by an educational authority. However, there will be discrimination only if a denial involves treating the person aggrieved less favourably than the educational authority treats or would treat a person without the disability in the same or not materially different circumstances. 54 Thus the application of s 22(2) involves two separate steps. First it is necessary to determine whether or not one of paragraphs (a), (b) or (c) has been satisfied. If it has not, that is an end to the question. However, if one of the paragraphs has been satisfied, it is still necessary to consider whether there has been discrimination against a student on the ground of the student's disability. I have concluded that the School did not discriminate on the ground of the Complainant's disability. However, as the meaning of "benefit" and "detriment" was raised by the applicant and the second respondent, I will address those questions briefly. 55 Failing to give special treatment to a student is not necessarily subjecting that student to a detriment – see paragraph [59] below. On the other hand, if special services or facilities are available, albeit facilities or services to which a student is not entitled, denying a student access to those services or facilities may well be denying a benefit provided by the educational authority. The failure to provide a particular facility or service is not denying a benefit. However, once the benefit is in fact able to be provided and is, from time to time provided, denying the student access to the benefit is capable of falling within s 22 of the Act. 56 The Commission found that, having recognised that the Complainant had disabilities that required special services and facilities to function at school, the State agreed to provide those services and facilities. There is no basis for concluding that that finding was erroneous. In so far as special services and facilities were provided at the School, those services and facilities may well constitute a benefit within the meaning of s 22(2)(a) of the Act. 57 Of course, the question is whether or not the denial of those benefits constitutes discrimination. If those services and facilities are provided only to a person with a disability, the denial of them does not involve treating the person with a disability less favourably than the educational authority treats or would treat a person without the disability. The denial of a benefit that is not afforded to a person without a disability is not, of itself, discrimination within the meaning of s 5(1). Whether it is discrimination within any other section, such as s 6 is another question altogether. THE WORD "DETRIMENT" IN SECTION 22(2)(c) OF THE ACT 58 The State contends that the Commission erred by misconstruing the word "detriment" in s 22(2)(c). The State contends that the Commission erred in concluding that the State had subjected the Complainant to detriment by failing: · to adjust the welfare and discipline policy to address the Complainant's needs and behavioural patterns; · to provide teachers with training or awareness program; · to obtain the assistance of experts in special educational behaviour; · to follow school policy for dealing with excluded students. 59 I do notThe structure of s 22(2) sheds light on what Parliament intended s 22(2)(c) to cover. The inclusion of the words "any other" in s 22(2)(c) suggests that s 22(2)(a) and (b) are examples of detriments. Given this, I do not consider that it was open to the Commission to find that failing to adjust a policy of general application for a particular student is, of itself, subjecting that student to a detriment."detriment". It may be discrimination within s 6. That, however, is not the point. was specifically not argued by counsel for the Complainant. 60 It may be that, in the absence of special training for the teachers, a particular student will not receive as much benefit, because of his disability, as a student who does not have that disability would receive from the same teachers. However, that is not subjecting the student to a detriment within the meaning of s 22(2)(c). The failure toin the context of ss 6 and 22, that would not necessarily constitute a detriment. The failure to provide additional benefits to astudent, when such benefits are not usually provided by the School, is not prohibited by the Act. 61 The Commission dealt with the discipline policy of the School as follows: "2.6.2.1 School Discipline Policy 1995 The School Discipline Policy 1995 (Exhibit 52, pages 231 to 245) states: 'School discipline concerns the development of appropriate behaviour in students. It implies the acceptance of self discipline and the ability to distinguish right from wrong.' The policy sets out a list of rights and corresponding responsibilities. For example, 'I have the right to be treated with understanding, respect and politeness', and 'I have the responsibility to treat others politely and with understanding and respect, regardless of individual differences.' There are school rules, and 'student behaviour requirements' for the classroom and playground. There is also a 'student management chain', which begins with a warning, then possibly a second warning, followed by relocation within the class, relocation to head teacher, detention, head teacher interview, parent contact, isolation from class in one subject area, followed by an interview with the Principal and parents. There is a 'Level Scheme', from 0 to 5. All students begin on 0, with no documentation and teacher based discipline applying. The 'reasons' for placing on 'Level 1' (for two weeks) are a major report or several referral slips from a number of sources, and the consequences of being placed on Level 1 included a form letter to parents, interview by Year Adviser and possible after-school detention, for all of which the Year Adviser is responsible. A student may be placed on Level 2 for two weeks if there is no improvement, or if they have committed a more serious breach of school rules, or engaged in unco-operative behaviour which infringes the rights of others. Placement on 'Level 2' has certain consequences, for example, a parent interview is requested, some privileges may be withdrawn, and so on. The 'Level Scheme' continues to 'Level 5', for students who have shown either no improvement at Level 4, or deterioration in behaviour. The consequences of a student being placed on 'Level 5' are exclusion and expulsion may be considered. The personnel responsible at this level are the Principal, Director, Assistant Director-General, and Minister. The 'Level scheme' policy notes that the Head Teacher Girls(Girls) and Head Teacher welfare(Welfare) 'monitor the Level Books of students placed on a level. A student is placed on a level, by the Deputy Principal, on consultation with the Level Committee.' There is also a guide to the sort of consequences that stem from various forms of misbehaviour. For example, a student leaving the school grounds will be reported to and interviewed by the Deputy Principal and receive an after-school detention in the case of an isolated incident. For a 'repeated or more blatant offence', the student's parents may be contacted and they may be placed 'on level'." 62 While a particular discipline and welfare policy was established for the Complainant, that policy did not relevantly differ from the policy applicable to the general student body. Failure to apply a policy is not of itself subjecting a student to a detriment. On the other hand, the failure to apply a policy in relation to anbody, insofar as it required the School to arrange an alternative placement for an excluded student. The Commission found that, had the policy been aggrieved person in circumstances where the policy would be applied in respect of another person in the same or similar circumstances may mean that an aggrieved person has been treated less favourably than other persons. The Commission concluded that the only placement that would have been notified had the policy been complied with is the placementwith, the alternative placement would have been at the support unit at Grafton High School. The Commission concluded that, since that was notthat that result would have been not have been acceptable to Mr and Mrs Purvis, "the results of this detriment and the exclusion are the same". Accordingly, this ground of complaint by the State does not go beyond the complaint concerning thenPurvis. Accordingly, I do not consider that it was open to the Commission to find that the failure to follow school policy was, in itself, a detriment within the meaning of appropriate comparator. s 22(2)(c). THE SUPPORT UNIT AT GRAFTON HIGH SCHOOL 63 In the course of the enquiry, the Tribunal was apparently invited to take into account proposals advanced by the State for the Complainant's education being continued at the support unit of Grafton High School, with possible later return to the School. However, the Commission considered that"separate but equal or segregated education"is "by its nature, discriminatory". The State contended that, in that regard, the Commission erred. 64 However, that conclusion had no part to play in the reasoning process that led to the Commission's determination. The observation was made in response to a contention apparently advanced on behalf of the State that the Commission should take into account a proposal that set out the basis for the Complainant's continued education at the support unit of Grafton High School. There does not appear to have been any relevant error of law in relation to this matter. INDIRECT disability discrimination 65 In the enquiry by the Commission, the Complainant apparently placed no reliance on s 6 of the Act. The Commission recorded the Complainant's submission that "there must be a condition or requirement which was imposed on" the Complainant, who "must demonstrate that he has been unable to comply with the condition, while a substantially higher proportion of students without his disability were able to comply". The Complainant took the approach that, because "the standards applicable" to the Complainant were not imposed on any other student, "the indirect discrimination model is not available". 66 It is not self self-evidentevident that s 6 does not apply. While the School expelled the Complainant on the basis of the policy designed specifically for him, the School's general policy would have been equally applicable. It is at least arguable that conditions or requirements, in the nature of standards of behaviour, were imposed upon all students, as well as the Complainant. Such a condition is one with which most persons without the Complainant's disability comply or are able to comply. The evidence indicates that the Complainant is not able to comply with such a behaviour condition, because of his disability. The question, therefore, would be whether the behaviour condition requirement imposed on the Complainant was reasonable, having regard to the circumstances of this case. However, that question was not agitated before the Commission and, accordingly, I reach no conclusion about it. CONCLUSION 67 I consider that the Commission has erred in the respects outlined above in its interpretation of the phrase "discrimination on the ground of a disability" in s 5 and in the choice of an appropriate comparator. In so far as there has been a decision by the Commission, it is appropriate that it be set aside and that the matter be remitted to the Commission for the purposes of making a determination under s 103 of the Act according to law and in accordance with these reasons. The Complainant should pay the State's costs of the proceeding. I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 28 August 2001 Counsel for the Applicant: Ms C Ronalds Solicitor for the Applicant: Crown Solicitor's Office Counsel for the Second Respondent: Ms K Eastman Solicitor for the Second Respondent: Legal Aid Commission of New South Wales Date of Hearing: 26 July 2001, 9 August 2001 Date of Judgment: 29 August 2001