CITATION: Wong v Board of Studies New South Wales [2010] NSWADT 274 DIVISION: General Division APPLICANT Sarah Wong PARTIES: RESPONDENT Board of Studies NSW FILE NUMBER: 101107 HEARING DATES: 9 November 2010 SUBMISSIONS CLOSED: 9 November 2010 DATE OF DECISION: 16 November 2010 BEFORE: Hennessy N - Magistrate (Deputy President) CATCHWORDS: LEAVE – merits of complaint LEGISLATION CITED : Anti-Discrimination Act 1977 Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 CASES CITED: New South Wales v Amery (2006) 80 ALJR 753 Jones & Anor v Ekermawi [2009] NSWCA 388 APPLICANT E Wong, agent REPRESENTATION: RESPONDENT C Ronalds, senior counsel ORDERS: 1. Leave is granted for the applicant's complaint of disability discrimination to proceed 2. The matter is listed for case conference on 8 December 2010 at 3pm. REASONS FOR DECISION Introduction 1 The issue in this case is whether the Tribunal should give Ms Wong permission for her complaint of disability discrimination against the Board of Studies NSW (the Board) to go ahead even though the President of the Anti-Discrimination Board (ADB) declined the complaint as lacking in substance. Ms Eileen Wong, Ms Sarah Wong's mother, appeared as agent for her daughter. I allowed her to do so despite the fact that she had not lodged an application to act as agent. 2 Ms Wong sat for the Higher School Certificate examinations in 2008. She applied for and was granted 'special provisions' when she sat for the English Advanced and Modern History papers. She was provided with a writer, extra time to complete the exams and rest breaks. The reason for these special provisions was that Ms Wong experiences pain and cramps in her hands when writing for long periods. Ms Wong's complaint involved two of the Board's decisions. The first was their decision to refuse to allow her to use a computer. The second decision was to refuse to adjust Ms Wong's marks. The second decision was made after Ms Wong lodged a 'misadventure' appeal with the Board following the exams. Successful appeals can lead to the school assessment mark being used instead of the examination mark. The Board said that it was not appropriate to adjust Ms Wong's marks because, firstly, Ms Wong's school assessments were lower than her examination marks and secondly, because the procedures used by the school to calculate those marks were fair. Ms Eileen Wong submitted that those procedures were not fair and that her daughter's marks should have been adjusted. Test for granting leave 3 Section 96 of the Anti-Discrimination Act 1977 (AD Act) provides that a complaint that is referred to the Tribunal after it has been declined by the President, may not be the subject of proceedings before the Tribunal without the leave of the Tribunal. The applicant bears the onus of persuading the Tribunal that it is appropriate for leave to be granted. 4 In Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Schmidt AJ emphasised that leave applications should be determined on the basis of fairness and justice and went on to say that: Whatever the contest between the parties might be, the question of leave must be determined having in mind the purposes of the Act, which includes precluding unlawful discrimination and to permit those who have been so discriminated against, a remedy. Given that the legislation does not require all complaints to be investigated and dealt with, this means that while on the one hand, an obviously meritorious complaint will not be refused leave, where, for example on the other, it is apparent that the complaint lacks substance, or where the complaint is already being redressed elsewhere, leave may be refused, if that is what justice dictates. 5 When deciding whether to grant leave, the Tribunal may have regard to the grounds on which the President may decline a complaint under s 92(1) of the AD Act, including that the complaint lacks substance or the nature of the conduct is such that further action is not warranted: Jones & Anor v Ekermawi [2009] NSWCA 388 at [60]. The question in this case is whether the complaint has sufficient merit for it to proceed. Assessment of the merits of the complaint 6 Legislation. Section 49M makes discrimination on the ground of disability in relation to the provision of services unlawful. That provision states that: 49M Provision of goods and services (1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability: (a) by refusing to provide the person with those goods or services, or (b) in the terms on which he or she provides the person with those goods or services. (2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services. 7 The Board is not relying on the defence in 49M(2). 8 Discrimination on the ground of disability is defined in s 49B: (1) A person ( "the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of disability if, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, the perpetrator: (a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. (3) For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog. (3A) For the purposes of, but without limiting, this section, the fact that a person who has a disability: (a) is accompanied by, or possesses, a palliative or therapeutic device, or other mechanical equipment, that provides assistance to the person to alleviate the effect of the disability, or (b) is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretive, reading or other services to the person because of the disability, or because of any matter related to that fact, is taken to be a characteristic that appertains generally to persons who have that disability. (4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability. 9 Section 49B(1)(a) defines what is known as 'direct' discrimination. At least one of the reasons for the treatment must be the person's disability even if that reason was not the dominant or a substantial reason for the treatment: AD Act, s 4A. Section 49B(1)(b) defines what is known as 'indirect' discrimination. 10 What needs to be proved? In order to substantiate her complaint, Ms Wong would have to prove that: a) she has a disability within the meaning of that term in the AD Act ; b) the Board was providing her with a service and the precise nature of that service; c) the Board refused to provide that service or provided that service on unfavourable terms; d) in doing so the Board treated Ms Wong less favourably than in the same circumstances or in circumstances which are not materially different it treats or would have treated a person who does not have Ms Wong's disability ('differential treatment'); and e) at least one of the reasons for the less favourable treatment was Ms Wong's disability ('causation'). 11 Alternatively, if Ms Wong is relying on indirect discrimination as defined in s 49B(1)(b), then instead of proving the matters listed at d) and e) above, Ms Wong would have to prove that: f) in refusing to provide the service or providing the service on unfavourable terms, the Board required her to comply with a requirement or condition; g) a substantially higher proportion of persons who do not have Ms Wong's disability can comply with that requirement or condition; h) Ms Wong cannot comply with the requirement or condition; i) the requirement or condition is not reasonable having regard to the circumstances of the case. 12 Disability. The Board conceded for the purpose of these proceedings that Ms Wong has a disability, namely joint hyper-mobility which affects her ability to write. 13 Services. The Board also accepted that when determining Ms Wong's applications under the Special Examination Provisions, it was providing Ms Wong with a service. Those Provisions are outlined on the Board's website. The School Certificate and Higher School Certificate Special Examination Provisions published on the Board's website was in evidence. That document includes the following description of the Special Examination Provisions; Special examination provisions are granted to provide students who have special examination needs with practical support in the School Certificate tests and the Higher School Certificate examinations. Regardless of the nature of the special need, the provisions granted will be solely determined by the implications of the student's functioning in an examination situation. Provisions may include braille papers, large print papers, use of a writer, use of a reader, extension of test time, rest breaks, use of a personal computer, establishment of a special test centre, exam supervision, individual supervision, permission to take medication or other provisions as judged appropriate. 14 The Board explained the procedure by saying that the school or other educational facility applies for special provisions on behalf of a student. The Board has a Special Provisions Panel which includes medical practitioners, educational psychologists and consultants. The Board decides whether to approve or decline the application and the school notifies the student. 15 If leave were granted for the complaint to proceed and the Tribunal found, as a question of fact, that the service being provided is the Special Examination Provisions, Ms Wong's complaint is unlikely to succeed. Firstly, the Board has not refused to provide that service to Ms Wong: s 49M(1)(a). Secondly, while it is arguable that they have provided that service on unfavourable terms, Ms Wong would not be able to establish the 'differential treatment' element of direct discrimination because virtually all the students receiving the service have a disability. In those circumstances no comparison can be made between the treatment that was afforded to Ms Wong and the treatment that was or would be afforded to a person without Ms Wong's disability. Similarly if the complaint was characterised as one of indirect discrimination, no comparison could be made between the proportion of students without Ms Wong's disability who could comply with any particular requirement or condition and the proportion of students with Ms Wong's disability who could comply. That proportion must be 'substantially higher': s 49B(1)(b). 16 Would Ms Wong's complaint have merit if the Tribunal were to find that the services being provided to her are broader than just the Special Examination Provisions? The Tribunal may be satisfied that a service, however defined, was being provided not just to students with a disability but also to students without a disability. For the purpose of determining whether the Board had discriminated 'directly' against Ms Wong, a comparison could then be made between the way the Board treated Ms Wong and the way it treats or would have treated a student without her disability. However, Ms Wong's complaint would still fail because she was treated more favourably than students without a disability. The Board provided Ms Wong with a writer, extra time to complete the exams and rest breaks. That conclusion highlights the fact that the direct discrimination provisions are designed to achieve what is known as 'formal equality'. It requires students to be treated in the same way regardless of whether they have a disability or not. 17 Indirect discrimination provisions are designed to achieve what is known as 'substantive equality'. They focus on the outcome or impact of facially neutral policies or practices on people with disabilities. If the Tribunal were to find that a service (however defined) was being provided to Ms Wong and to students without a disability, the precise requirement or condition which was being imposed would have to be identified. Ms Wong would have to establish that she couldn't comply with that requirement. She would then need to establish that a substantially higher proportion of people without her disability compared with people with that disability can comply with the requirement. Finally, she would need to prove that the requirement is not reasonable having regard to the circumstances of the case. 18 Assessment. The High Court has emphasised that the phrase 'requirement or condition' is to be given a broad, rather than a technical meaning, given the nature of the mischief which those provisions are designed to address: New South Wales v Amery (2006) 80 ALJR 753 at [63] per Gummow, Hayne and Crennan JJ. If the Tribunal accepts that the services the Board is providing can be defined broadly, it is possible that Ms Wong may be able to identify a relevant requirement or requirements and prove the remaining elements of indirect discrimination. It would be premature at this stage to refuse leave for her complaints to proceed on that basis especially given that this is a complex area of the law and she does not have legal representation. Remedy 19 The Board also submitted that since the complaint concerns the 2008 Higher School Certificate and Ms Wong is now at university, there is no practical remedy available. Ms Wong's mother pointed to various parts of her daughter's complaint and the submissions made on her behalf which identified the effects which the Board's decisions were said to have had. I am not satisfied that the lack of a practical remedy, in terms of any increase in Ms Wong's examination marks, is a reason for refusing leave. Other remedies, including damages, are available under the AD Act. Order 1.Leave is granted for the applicant's complaint of disability discrimination to proceed 2. The matter is listed for case conference on 8 December 2010 at 3pm. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.