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IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

No N 1693 of 2003

BETWEEN

CATHOLIC EDUCATION OFFICE

First Appellant

MACKILLOP CATHOLIC COLLEGE

Second Appellant

and

NICHOLAS GEOFFREY CLARKE

on behalf of JACOB NICHOLAS CLARKE

Respondent

SUBMISSIONS OF THE HUMAN RIGHTS

AND EQUAL OPPORTUNITY COMMISSION

SEEKING LEAVE TO INTERVENE

  1. SUBMISSIONS ON LEAVE TO INTERVENE

  1. By Notice of Motion filed 16 April 2004, the Human Rights and Equal Opportunity Commission ('the Commission') seeks the leave of the Court to intervene at the hearing of this appeal pursuant to s 67(1)(l) of the Disability Discrimination Act 1992 (Cth) ('DDA') and s 11(1)(o) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ('HREOC Act').
  2. The application for leave to intervene is made on the grounds set out in the affidavit of Dr Sev Ozdowski, affirmed on 15 April 2004.
  3. The Commission seeks to intervene by way of written submissions and, if the Court considers it to be of assistance, short oral submissions.
  4. The Commission submits that the appeal involves issues of general principle and public importance which may significantly affect persons other than the parties who are before it.(1)
  5. The Commission further submits that it has:
    1. a legitimate concern in making submissions in relation to the proper interpretation of the provisions of the DDA that are at issue in these proceedings;(2)
    2. an interest in the subject of litigation greater than a mere desire to have the law declared in particular terms;(3)
    3. an ability to make submissions that the Court might consider that it 'should have to assist it to reach a correct determination';(4)
    4. special knowledge and expertise relevant to the issues raised in these proceedings; and
    5. an ability to make submissions that differ in emphasis and content from those of the parties and that are likely to 'assist the Court in a way in which the Court would not otherwise have been assisted'.(5)
  6. No practical considerations militate against the granting of leave because:
    1. all parties have received adequate notice of the Commission's intention to seek leave to intervene and the nature of that intervention;
    2. the Commission requests only a short opportunity to make oral submissions, at the discretion of the Court;
    3. the Commission's intervention should have no adverse impact upon the parties with respect to costs.

  1. SUMMARY OF SUBSTANTIVE SUBMISSIONS

  1. The Commission seeks to provide the Court with an overview of the DDA relevant to the issues before it and will make submissions to the Court on the following particular issues:
    1. The approach to the construction of the DDA and the relevance of international human rights standards.
    2. The relevant principles applicable to 'indirect discrimination' under s 6 of the DDA, with particular reference to:
      1. the definition of a 'requirement or condition';
      2. assessing the 'reasonableness' of a requirement or condition and the role of international human rights law and human rights standards in determining what is 'reasonable'; and
      3. the correct approach to assessing whether or not a person can 'comply' with a requirement or condition.
    3. Section 45 of the DDA and 'special measures'.

  1. OVERVIEW OF THE DDA

  1. The objects of the DDA as expressed in s 3 include:
    1. a remedial object: 'to eliminate, as far as possible, discrimination against persons on the ground of disability' in designated areas: (paragraph (a)); and
    2. an educative object: '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': (paragraph (c)).
  2. To give effect to those objects the Act contains, amongst other things, a number of provisions which make it unlawful 'to discriminate against a person on the ground of the person's disability' in specified areas which include:
    • employment: ss 15-21;
    • education: s 22; (6)
    • access to premises: s 23;
    • provision of goods and services: s 24;
    • accommodation: s 25;
    • membership of clubs: s 27;
    • sporting activities: s 28; and
    • the administration of Commonwealth laws and programs: s 29.
  3. The term disability is defined in s 4(1) of the DDA.
  4. The term disability discrimination is also defined in s 4(1) as 'the meaning given by ss 5 to 9 (inclusive)' and discriminate is defined as 'the meaning given by ss 5 to 9 (inclusive)'.
  5. Adopting a dichotomy that is mirrored in other Commonwealth, State and Territory legislation,(7) 'discrimination' for the purpose of the Act, may be either 'direct discrimination' (s 5) (8) or 'indirect discrimination' (s 6).(9) The present appeal is concerned only with a claim of indirect discrimination.
  6. Section 6 of the DDA defines indirect discrimination:

    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:

    1. with which a substantially higher proportion of persons without the disability comply or are able to comply; and
    2. which is not reasonable having regard to the circumstances of the case; and
    3. with which the aggrieved person does not or is not able to comply.
  7. Not all forms of discrimination are unlawful and the DDA provides a range of defences or exemptions.(10) It is a defence in certain circumstances for a respondent to show that the actions required to avoid discrimination would impose 'unjustifiable hardship' on a respondent. (11)
  8. 'Unjustifiable hardship' is defined by s 11 of the DDA as follows:

    For the purposes of this Act, in determining what constitutes unjustifiable hardship, all relevant circumstances of the particular case are to be taken into account including:

    1. the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned; and
    2. the effect of the disability of a person concerned; and
    3. the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship; and
    4. in the case of the provision of services, or the making available of facilities-an action plan given to the Commission under section 64.
  9. The appellant has also raised as relevant to the present matter s 45 of the DDA which provides for a 'special measures' exemption as follows:

    This Part does not render it unlawful to do an act that is reasonably intended to:

    1. ensure that persons who have a disability have equal opportunities with other persons in circumstances in relation to which a provision is made by this Act; or
    2. afford persons who have a disability or a particular disability, goods or access to facilities, services or opportunities to meet their special needs in relation to:
      1. employment, education, accommodation, clubs or sport; and
      2. the provision of goods, services, facilities or land; or
      3. the making available of facilities; or
      4. the administration of Commonwealth laws and programs; or
      5. their capacity to live independently...

  1. APPROACH TO CONSTRUCTION OF THE DDA AND RELEVANCE OF INTERNATIONAL HUMAN RIGHTS STANDARDS

  1. Approach to construction of the DDA

  1. Remedial legislation such as the DDA, which aims to prevent discrimination and uphold equal opportunity, should be construed beneficially and not narrowly.(12)
  2. The DDA should also be construed consistently with the international human rights instruments which underpin the DDA, and human rights standards generally. It is an established general principle of construction that statutes are to be interpreted and applied so as to be in conformity and not in conflict with established rules of international law, as far as their language permits.(13)
  3. It is also accepted that the meaning of provisions in a statute, such as the DDA, which implement a convention or conventions is to be ascertained by reference to the relevant provisions of that convention or those conventions.(14)

  1. Relevant International Human Rights Standards

  1. The DDA seeks to give effect to Australia's international legal obligations and internationally recognised standards in relation to people with disabilities.(15) This is made clear by s 12(8) of the DDA which sets out the basis and scope of the DDA's 'limited application' provisions (including, relevant to the present matter, ss 22 and 24):

    The limited application provisions have effect in relation to discrimination against a person with a disability to the extent that the provisions:

    1. give effect to the Convention;(16) or
    2. give effect to the [International] Covenant on Civil and Political Rights;(17) or
    3. give effect to the International Covenant on Economic, Social and Cultural Rights;(18) or
    4. relate to matters external to Australia; or
    5. relate to matters of international concern.
  2. In the Second Reading Speech for the Disability Discrimination Bill 1992 (Cth), the Minister stated:

    The Bill recognises that discrimination against people with disabilities is a matter of international concern. It is another significant step in fulfilling Australia's international obligations under a number of United Nations instruments. These include the International Labour Organisation Convention concerning discrimination in respect of employment and occupation; the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; and a number of related declarations.(19)

  3. In addition, the Explanatory Memorandum explained the application of s 12 as follows:

    This clause provides that the legislation is to apply throughout Australia. The provision is also designed to ensure that all possible Commonwealth Constitutional power is relied upon to support the various provisions of the Act.

     

    In particular sub-clause (8) of this clause indicates that certain provisions of the legislation have effect in relation to discrimination against people with disabilities to the extent that the provisions implement Australian responsibilities under certain international instruments. Most notably these are the United Nations International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights and the International Labour Organisation's Convention Number 111 entitled Convention concerning Discrimination in Respect of Employment and Occupation.

     

    ...

    It is also clear from a number of lesser international instruments that discrimination against people with a disability is a matter of concern to the international community generally. The limited application provisions apply to the extent of that international concern. The Declaration on the Rights of Disabled Persons, The Declarations on the Rights of Mentally Retarded Persons and The Declaration on the Rights of the Child are just some of the instruments which further indicate how discrimination against people with disabilities is a matter of international concern.

  4. The phrase 'matters of international concern' in s 12(8)(e) of the DDA was considered in Souliotopoulos v La Trobe University Liberal Club.(20) Merkel J held that s 12(8) of the DDA was intended to give the Act the widest possible operation permitted by s 51(xxix),(21) and that the expression 'matters of international concern' was not limited to matters arising from Australia's treaty obligations. Relevant to the present matter, his Honour referred,(22) in particular, to the Declaration on Rights of Disabled Persons(23) and the Standard Rules on the Equalization of Opportunities for Persons with Disabilities.(24)
  5. The Commission therefore submits that the Court may have regard to and should construe the DDA consistently with the following relevant international human rights instruments:
    • The International Covenant on Economic, Social and Cultural Rights ('ICESCR');
    • The Convention on the Rights of the Child ('CRC');(25)
    • The Declaration on the Rights of Disabled Persons;
    • The Convention against Discrimination in Education;(26)
    • The Standard Rules on the Equalization of Opportunities for Persons with Disabilities; and
    • The Salamanca Statement and Framework for Action on Special Needs Education.(27)
  6. The relevant rights and applicable standards contained in these international conventions and instruments have been extracted in Appendix One to these submissions.
  7. The key principles which the Commission submits should inform the Court's interpretation and application of the DDA are as follows:
    1. Every child has the right to education;(28)
    2. Education shall exhibit the following interrelated and essential features;
      1. availability;
      2. accessibility;
      3. acceptability; and
      4. adaptability;(29)
    3. A child's right to education shall be respected and ensured without discrimination of any kind, including discrimination on the ground of disability;(30)
    4. In all actions concerning children, including actions undertaken by private educational institutions, the best interests of the child shall be a primary consideration;(31) and
    5. The views of a child who is capable of forming his or her own views shall be given due weight, in accordance with the age and maturity of the child, in all matters affecting the child.(32)

  1. INDIRECT DISCRIMINATION

  1. The claim of indirect discrimination under s 22(1) of the DDA requires a complainant to establish the following elements:
    1. he was refused admission as a student; or
    2. the school was prepared to admit him on certain terms or conditions; and in doing so
    3. the school required Jacob to comply with a requirement or condition;
    4. Jacob did not or could not comply with the requirement or condition;
    5. a substantially higher proportion of students without a hearing impairment could comply with the school's requirement or condition; and
    6. the requirement or condition is not reasonable having regard to the circumstances of the case.

  1. Defining the 'requirement or condition'

  1. The learned Judge at first instance defined the 'requirement or condition' as being 'that Jacob participate in [education by classroom instruction or teaching] without the assistance of an Auslan interpreter' (AB 1291 [45]).
  2. The Commission submits that the broad approach of the learned primary Judge to the words 'requirement or condition' was correct. Those words should be construed broadly 'so as to cover any form of qualification or prerequisite, although the actual requirement or condition in each instance should be formulated with some precision'.(33)
  3. Those steps which the appellant offered to take by way of the Model of Support are relevant to determining whether or not the requirement or condition was 'reasonable', in that they demonstrate the manner in which the requirement or condition was, in practice, implemented.

  1. Reasonableness

  1. Section 6(b) requires that the relevant requirement or condition be 'not reasonable having regard to the circumstances of the case'.
  2. The Commission submits that the international human rights standards set out above and in Appendix One will be of particular relevance to determining 'reasonableness'. Where a requirement or condition is in conflict with, or would have the effect of impairing, human rights, this will suggest that the requirement or condition is not reasonable.
  3. More specifically, if a requirement or condition has the effect of denying a child the right to education (as that right is defined in the relevant international instruments), or is in conflict with those human rights principles above which expand upon the appropriate manner in which the right to education should be realised, this will suggest that the requirement of condition is not reasonable.
  4. This approach was adopted by the Supreme Court of Canada in Canadian Foundation for Children, Youth and the Law v Canada (Attorney General)(34) where the Court stated (in the context of corporal punishment of children):

    [F]urther precision on what is reasonable under the circumstances may be derived from [Canada's] international treaty obligations ... Canada's international commitments confirm that physical correction that either harms or degrades a child is unreasonable.(35)

  5. In addition, the Commission submits that in determining what is reasonable in the circumstances of a given case, the Court should take the best interests of the child into account as a primary consideration and should give due weight to the views of the child.
  6. The Commission submits that, consistent with the approach taken in international law, the focus of the test of 'reasonableness' in a discrimination context is proportionality. In General Comment 18 to the ICCPR, 'Non Discrimination', the Human Rights Committee explains that under international law 'not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.'(36) This approach is reflected in jurisprudence from the Human Rights Committee.(37)
  7. This approach is also consistent with Australian domestic law on what is 'reasonable' for the purposes of determining indirect discrimination. In the Commission's submission, the appropriate inquiry is to ask whether or not the requirement or condition is appropriate and adapted to achieving a legitimate (non-discriminatory) end and whether the relevant activity could be performed without imposing such a requirement or condition.
  8. What has been described as a 'starting point'(38) in determining reasonableness was set out by Bowen CJ and Gummow J in Secretary, Department of Foreign Affairs and Trade v Styles, in the context of the Sex Discrimination Act 1984 (Cth) ('the SDA') as follows:

    The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience. ... The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All of the circumstances of the case must be taken into account.(39)

  9. The financial or economic circumstances of the respondent may be relevant to the question of reasonableness.(40) However, when taking into account the financial circumstances of a respondent in assessing reasonableness, it is significant to note the context of the DDA, which includes the defence of unjustifiable hardship in s 11. Implicit in the concept of unjustifiable hardship is that some hardship faced by a respondent will be justifiable: the concept of unjustifiable hardship 'connotes much more than just hardship'.(41) In the Commission's submission, this may lessen the weight that can be given to any financial hardship in the context of assessing what is, or is not, reasonable.
  10. Other propositions can be distilled in relation to 'reasonableness' in the context of discrimination legislation which may be of assistance in the context of the DDA:
    • The test is an objective one, but the subjective preferences of an aggrieved person or a respondent may be relevant in determining the reasonableness of the alleged discriminatory conduct.(42)
    • The test is reasonableness, not correctness or 'whether the alleged discriminator could have made a 'better' or more informed decision'.(43)
    • It is not enough, however, that a decision have a 'logical or understandable basis'. While this may be relevant, taking into account all of the circumstances, such a decision may nevertheless not be reasonable.(44)

  1. Ability to Comply With a Requirement or Condition

  1. In determining whether or not a person is able to 'comply' with a requirement or condition within the meaning of s 6(c), the Commission submits that the Court should consider issues of practicality and reasonableness. It is not enough that a complainant can physically or technically comply with a requirement or condition.(45)
  2. The Commission submits that the learned primary Judge was correct in assessing whether or not Jacob could 'meaningfully' receive education from the appellant in determining whether or not he could comply with the relevant requirement or condition (AB 1292-1294 [49]). The confusion and frustration that the learned primary Judge found would have been occasioned in Jacob's attempts at 'compliance' were also relevant and correctly taken into account.

  1. SPECIAL MEASURES

  1. Section 45 of the DDA, set out above at [16], provides, in essence, for an exemption for acts 'reasonably intended' to constitute 'special measures'.
  2. The Commission submits that the relevant 'act' in the present case is the imposition of the relevant requirement or condition - on the view of the learned primary Judge, the requirement that Jacob participate in education by classroom instruction or teaching without the assistance of an Auslan interpreter.
  3. The appellant's offer of the Model of Support is not alleged to be an unlawful act. Rather it forms part of the overall circumstances in which the requirement or condition was imposed (and, as indicated above, in the Commission's submission is relevant to the question of whether the requirement or condition was or was not 'reasonable').
  4. The Commission therefore submits that it is not an answer to the finding of unlawful discrimination on the basis of the identified requirement or condition that the Model of Support, which does not form a part of that requirement or condition, is said to be a 'special measure'.

Kate Eastman

Counsel for Human Rights and Equal Opportunity Commission

30 April 2004

APPENDIX ONE TO THE SUBMISSIONS OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION, SEEKING LEAVE TO INTERVENE

INTERNATIONAL TREATIES AND INSTRUMENTS

Introduction

  1. This appendix contains extracts from the following international treaties and instruments:
    1. The International Covenant on Economic, Social and Cultural Rights ('ICESCR');(46)
    2. The Convention on the Rights of the Child ('CRC');(47)
    3. The Declaration on the Rights of Disabled Persons;(48)
    4. The Convention against Discrimination in Education;(49)
    5. The Standard Rules on the Equalization of Opportunities for Persons with Disabilities ('Standard Rules');(50) and
    6. The Salamanca Statement and Framework for Action on Special Needs Education.(51)

International Covenant on Economic, Social and Cultural Rights

  1. Article 2(2) of ICESCR prohibits discrimination :

    The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

  2. Article 13 of ICESCR recognizes the right to education (emphasis added):
    1. The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.
    2. The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right:

      ...

      (b) Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education;

      ...

  3. In interpreting what is meant by Article 13, reference may be had to the General Comments of the Committee on Economic, Social and Cultural Rights ('CESCR').(52)
  4. CESCR General Comment No 5 (1994), Persons with Disabilities,(53) provides that the obligation on States Parties to ICESCR is to take positive action 'to reduce structural disadvantages and to give appropriate preferential treatment to persons with disabilities in order to achieve the objectives of full participation and equality within society for all persons with disabilities.'(54)
  5. CESCR General Comment No 5 also provides that States Parties are also obliged to ensure that not only the public sphere, but also the private sphere, is, within appropriate limits, subject to regulation to ensure the equitable treatment of persons with disabilities.(55)
  6. CESRC General Comment No 5 specifically addresses Article 13 of ICESCR and the right to education of deaf children (emphasis added):

    School programmes in many countries today recognize that persons with disabilities can best be educated within the general education system. See A/47/415 para. 73. Thus the Standard Rules provide that "States should recognize the principle of equal primary, secondary and tertiary educational opportunities for children, youth and adults with disabilities, in integrated settings". Standard Rules (see note 6 above), Rule 6. In order to implement such an approach, States should ensure that teachers are trained to educate children with disabilities within regular schools and that the necessary equipment and support are available to bring persons with disabilities up to the same level of education as their non-disabled peers. In the case of deaf children, for example, sign language should be recognized as a separate language to which the children should have access and whose importance should be acknowledged in their overall social environment.(56)

  7. This paragraph was affirmed in CESCR General Comment No 13 (1999), The Right to Education.(57) CESCR General Comment No 13 also provides that education must be available, accessible, acceptable and adaptable.(58) When applying these four 'interrelated and essential features' the best interests of the student shall be a primary consideration.(59)

Convention on the Rights of the Child

  1. Article 2(1) of the CRC contains a prohibition on discrimination:

    States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

  2. Article 3(1) of the CRC provides that the best interests of the child are to be a primary consideration:

    In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

  3. Article 12(1) of the CRC is concerned with ensuring weight is given to the views of the child:

    States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

  4. Article 23 of the CRC is directed to the human rights of children with disabilities and provides (emphasis added):
    1. States Parties recognize that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in the community.
    2. States Parties recognize the right of the disabled child to special care and shall encourage and ensure the extension, subject to available resources, to the eligible child and those responsible for his or her care, of assistance for which application is made and which is appropriate to the child's condition and to the circumstances of the parents or others caring for the child.
    3. Recognizing the special needs of a disabled child, assistance extended in accordance with paragraph 2 of the present article shall be provided free of charge, whenever possible, taking into account the financial resources of the parents or others caring for the child, and shall be designed to ensure that the disabled child has effective access to and receives education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the child's achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development.
  5. Articles 28 recognises the right of the child to education (emphasis added):

    (1) States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular:

    ...

    (b) encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need;

    ...

  6. Article 29 of the CRC sets out the aims of education (emphasis added):

    (1) States Parties agree that the education of the child shall be directed to:

    (a) The development of the child's personality, talents and mental and physical abilities to their fullest potential;

    ...

    (d) The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin.

  7. General Comment No 1 (2001), The Aims of Education, prepared by the Committee on the Rights of the Child, makes the following comments on articles 28 and 29 of the CRC:

    [A]rticle 29(1) underlines the individual and subjective right to a specific quality of education. Consistent with the Convention's emphasis on the importance of acting in the best interests of the child, this article emphasizes the message of child-centred education: that the key goal of education is the development of the individual child's personality, talents and abilities, in recognition of the fact that every child has unique characteristics, interests, abilities, and learning needs.(60)

  8. The Committee on the Rights of the Child also recognises that:

    Discrimination against children with disabilities is also pervasive in many formal educational systems ... All such discriminatory practices are in direct contradiction with the requirements in article 29 (1) (a) that education be directed to the development of the child's personality, talents and mental and physical abilities to their fullest potential.(61)

Declaration on the Rights of Disabled Persons

  1. Paragraph 6 of the Declaration on the Rights of Disabled Persons provides:

    Disabled persons have the right to medical, psychological and functional treatment, including prosthetic and orthetic appliances, to medical and social rehabilitation, education, vocational training and rehabilitation, aid, counselling, placement services and other services which will enable them to develop their capabilities and skills to the maximum and will hasten the processes of their social integration or reintegration.

Convention against Discrimination in Education

  1. Article 1 of CADE defines discrimination as follows:
    1. For the purpose of this Convention, the term "discrimination" includes any distinction, exclusion, limitation or preference which, being based on race, colour, sex, language, religion, political or other opinion, national or social origin, economic condition or birth, has the purpose or effect of nullifying or impairing equality of treatment in education and in particular:
      1. Of depriving any person or group of persons of access to education of any type or at any level;
      2. Of limiting any person or group of persons to education of an inferior standard;
      3. Subject to the provisions of article 2 of this Convention, of establishing or maintaining separate educational systems or institutions for persons or groups of persons; or
      4. Of inflicting on any person or group of persons conditions which are incompatible with the dignity of man.
    2. For the purposes of this Convention, the term "education" refers to all types and levels of education, and includes access to education, the standard and quality of education, and the conditions under which it is given.
  2. Article 3 of CADE outlines steps States must take to eliminate discrimination in education, including:

    (b) to ensure, by legislation where necessary, that there is no discrimination in the admission of pupils to educational institutions...

  3. Article 5 of CADE affirms that education is to be directed to the 'full development of the human personality'.

Standard Rules on the Equalization of Opportunities for Persons with Disabilities

  1. CESCR General Comment No 5 (1994), Persons with Disabilities, states that the Standard Rules 'are of major importance and constitute a particularly valuable reference guide to identifying more precisely the relevant obligations of States parties under [ICESCR]'.(62)
  2. Rule 6 of the Standard Rules is concerned with education and provides:

    States should recognize the principle of equal primary, secondary and tertiary educational opportunities for children, youth and adults with disabilities, in integrated settings. They should ensure that the education of persons with disabilities is an integral part of the educational system.

     

    General educational authorities are responsible for the education of persons with disabilities in integrated settings. Education for persons with disabilities should form an integral part of national educational planning, curriculum development and school organization.

    Education in mainstream schools presupposes the provision of interpreter and other appropriate support services. Adequate accessibility and support services, designed to meet the needs of persons with different disabilities, should be provided.

    ...

Salamanca Statement and Framework for Action on Special Needs Education

  1. Paragraph 8 of the Salamanca Statement and Framework for Action on Special Needs Education relates to education of children with special needs within inclusive schools:

    Within inclusive schools, children with special educational needs should receive what ever extra support they may require to ensure their effective education. Inclusive schooling is the most effective means for building solidarity between children with special needs and their peers. Assignment of children to special schools - or special classes or sections within a school on a permanent basis - should be the exception, to be recommended only in those infrequent cases where it is clearly demonstrated that education in regular classrooms is incapable of meeting a child's educational or social needs or when it is required for the welfare of the child or that of other children.

  2. Paragraph 21 acknowledges the importance of sign language as a medium of communication:

    Educational policies should take full account of individual differences and situations. The importance of sign language as the medium of communication among the deaf, for example, should be recognized and provision made to ensure that all deaf persons have access to education in their national sign language. Owing to the particular communication needs of deaf and deaf/blind persons, their education may be more suitably provided in special schools or special classes and units in mainstream schools.

Endnotes

  1. United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520 at 534.
  2. Australian Railways Union v Victorian Railways Commission (1930) 44 CLR 319, 331 (Dixon J).
  3. Kruger v Commonwealth of Australia (1996) 3 Leg Rep 14 per Brennan CJ.
  4. Levy v State of Victoria (1997) 189 CLR 579, 603 (Brennan CJ).
  5. Ibid 604 (Brennan CJ).
  6. For cases concerning s 22, see Purvis v State of New South Wales (Department of Education and Training) (2003) 202 ALR 133 as well as Minns v New South Wales [2002] FMCA 60 and Travers v New South Wales (2001) 163 FLR 99.
  7. Racial Discrimination Act 1975 (Cth); Sex Discrimination Act 1984 (Cth); Disability Discrimination Act 1992 (Cth); Discrimination Act 1991 (ACT); Anti-Discrimination Act 1992 (NT); Anti-Discrimination Act 1977 (NSW); Equal Opportunity Act 1995 (Vic); Anti-Discrimination Act 1991 (Qld); Anti-Discrimination Act 1998 (Tas); Equal Opportunity Act 1984 (SA); Equal Opportunity Act 1984 (WA).
  8. Direct discrimination under s 5 of the DDA was comprehensively canvassed by the High Court in Purvis v State of New South Wales (Department of Education and Training) (2003) 202 ALR 133.
  9. The DDA also defines discrimination in relation to palliative and therapeutic devices and auxiliary aids (s 7), interpreters, readers and assistants (s 8) and guide dogs, hearing assistance dogs and trained animals (s 9).
  10. An 'inherent requirements' defence applies to the field of the employment (s 15(4)(a)), commission agents (s 16(3)(a)), contract workers (s 17(2)(a)), partnerships (s 18(4)(a)), qualifying bodies (s 19(2) and employment agencies (s 21(2)). A range of other general exemptions are set out in Part 2, Division 5 of the DDA.
  11. The 'unjustifiable hardship' (s 11) defence operates on a limited basis for some but not all acts which may be unlawful: s 15(1)(b) and 2(c) by s 15(4) in employment; s 16(1)(b) and 2(c) by s 16(3) for commission agents; s 17(1)(b) by s 17(2) for contract workers; s 18(1)(a), 2(a), 3(b) by s 18(4) for partnerships; s 22(1)(a) by s 22(4) for education, s 23(2) access to premises; s 24(2) provision of goods, services and facilities; s 25(3) accommodation; s 27(2)(c) by s 27(3) for clubs and incorporated associations.
  12. Waters v Public Transport Corporation (1991) 173 CLR 349, 359 (Mason CJ and Gaudron J with whom Deane J agreed), 372 (Brennan J), 394 (Dawson and Toohey JJ), 406-407 (McHugh J); Australian Iron and Steel v Banovic (1989) 168 CLR 165, 196-7 (McHugh J); Qantas Airways Ltd v Christie (1998) 193 CLR 280, 331 (Kirby J).
  13. Jumbunna Coal Mine NL v Victorian Coalminers' Association (1908) 6 CLR 309, 363 (O'Connor J); Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287 (Mason CJ and Deane J); Kartinyeri v Commonwealth (1998) 195 CLR 337, 384 [97] (Gummow and Hayne JJ).
  14. Koowarta v Bjelke-Petersen (1982) 153 CLR 168, 264-265 (Brennan J); Gerhardy v Brown (1985) 159 CLR 70, 124 (Brennan J); Qantas v Christie (1998) 193 CLR 280, 303 (McHugh J), 332-3 (Kirby J).
  15. Purvis v New South Wales (Department of Education and Training) (2003) 202 ALR 133, 139-140 (McHugh, Kirby JJ), 179-180 (Gummow, Hayne, Heydon JJ).
  16. Discrimination (Employment and Occupation) Convention (ILO No 111), date of adoption 25 June 1958, 362 UNTS 31 (entered into force 15 June 1960; entered into force for Australia 15 June 1974), a copy of which is set out in Schedule 1 of the HREOC Act: s 4 DDA.
  17. Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976; entered into force for Australia 13 November 1980).
  18. Opened for signature 19 December 1966, 999 UNTS 3 (entered into force 3 January 1976; entered into force for Australia 10 March 1976).
  19. Commonwealth, Parliamentary Debates, House of Representatives, 26 May 1992, 2751 (Brian Howe, Minister for Housing, Local Government and Community Services).
  20. Souliotopoulos v La Trobe University Liberal Club (2002) 120 FCR 584.
  21. Ibid [31].
  22. Ibid [39]-[42].
  23. GA res 3447 (XXX), 30 UN GAOR Supp (No. 34) at 88, UN Doc. A/10034 (1975).
  24. GA res 48/96, 48 UN GAOR Supp (No. 49) at 202, UN Doc A/48/49 (1993).
  25. Opened for signature 20 November 1989, 1588 UNTS 530 (entered into force 2 September 1990; entered into force for Australia 16 January 1991).
  26. Date of adoption 14 December 1960, 429 UNTS 93 (entered into force 22 May 1962; entered into force for Australia 1 March 1967).
  27. United Nations Educational, Scientific and Cultural Organization, 'The Salamanca Statement and Framework for Action on Special Needs Education' (1994) (Adopted by the World Conference on Special Needs Education: Access and Quality, Salamanca, Spain, 7-10 June 1994).
  28. ICESCR art 13, CRC arts 28, 29.
  29. Committee on Economic, Social and Cultural Rights ('CESCR') General Comment No 13, The Right to Education, UN Doc E/C12/1999/10 (1999), [6]. See also Katarina Tomaevski, Special Rapporteur on the Right to Education, Right to Education Primer No 3, 'Human rights obligations: making education available, accessible, acceptable and adaptable'(2001) 13-15, 31-33.
  30. CRC art 2(1), ICESCR art 2(2).
  31. CRC art 3(1), CESCR General Comment No 13, [7].
  32. CRC art 12(1).
  33. Waters v Public Transport Corporation (1991) 173 CLR 349, 393 (Dawson and Toohey JJ), 406-07 (McHugh J); Daghlian v Australian Postal Corporation [2003] FCA 759, [110] (Conti J).
  34. 2004 SCC 4.
  35. Ibid [31] (McLachlin CJ, Gonthier, Lacobucci, Major, Bastarache and LeBel JJ).
  36. UN Doc HRI\GEN\1\Rev1 at 26 (1994), [13].
  37. See for example Waldman v Canada, Human Rights Committee, Communication No 694/96, CCPR/C/67/D/694/1996, [10.6].
  38. Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78, 110 (Sackville J).
  39. (1989) 88 ALR 621, 263, affirming the test applied by Wilcox J at first instance: Styles v Secretary, Department of Foreign Affairs & Trade (1988) 84 ALR 408, 429. This test was applied by the High Court in the context of the Equal Opportunity Act 1984 (Vic) in Waters by Dawson, Toohey and Deane JJ (1991) 173 CLR 349, 395-96 (Dawson and Toohey JJ), 383 (Deane J). Raphael FM applied the test in the context of the DDA in Minns [2002] FMCA 60, [258].
  40. Waters v Public Transport Corporation (1991) 173 CLR 349.
  41. Finney v Hills Grammar School [1999] HREOCA 14 at 52, affirmed on review in Hills Grammar School v HREOC (2000) 100 FCR 306, [48]; Francey & Another v Hilton Hotels (1997) EOC 92-903 at 77,453.
  42. Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74, 83 (Lockhart J); cited with approval in Commonwealth Bank v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78, 111 (Sackville J).
  43. Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74, 87 (Sheppard J); Australian Medical Council v Wilson (1996) 68 FCR 46, 61 (Heerey J); Commonwealth Bank v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78, 112 (Sackville J).
  44. Commonwealth Bank v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78, 112-13 (Sackville J).
  45. Mandla v Dowell Lee [1983] 2 AC 548, 565-66; Travers v New South Wales [2000] FCA 1565, [17] (Lehane J); Sluggett v Human Rights and Equal Opportunity Commission (2002) 123 FCR 561, 575-6 [51]-[52] (Drummond J).
  46. International Covenant on Economic, Social and Cultural Rights adopted by UN General Assembly on 16 December 1966 which entered into force for Australia on 10 March 1976: ATS 1976 No. 5 and UNTS 993 p. 3 read with Committee on Economic, Social and Cultural Rights, General Comment No. 5, Persons with disabilities (Eleventh session, 1994), U.N. Doc E/C.12/1994/13 (1994).
  47. Convention on the Rights of the Child (1989) which entered into force for Australia on 16 January 1991 (UNTS 1588 p. 530).
  48. Declaration on the Rights of Disabled Persons (1975) GA Resolution 3447 (XXX).
  49. UNESCO Convention on Discrimination in Education ('CADE') opened for signature in Paris on 15 December 1960 and entered into force generally on 22 May 1962. The CADE entered into force for Australia on 1 March 1967.
  50. Standard Rules on the Equalization of Opportunities for Persons with Disabilities, G.A. Res. 48/96, U.N. GAOR, 48th Sess., Supp. No. 49, Annex at 202-11, U.N. Doc. A/Res/48/49 (1994).
  51. Salamanca Statement and Framework for Action on Special Needs Education adopted by the World Conference on Special Needs Education: Access and Quality, United Nations Educational Scientific and Cultural Organization, UN Doc ED-94/WS/ 1 8 (1994).
  52. In construing the provisions of an international human rights instrument, Australian courts give weight to the views of the human rights treaty bodies established under the provisions of particular human rights treaties: see, for example Johnson v Johnson (2000) 201 CLR 488, 501 (Kirby J); Dietrich v The Queen (1992) 177 CLR 292, 307 (Mason CJ and McHugh J). Australian courts have also accepted that guidance as to the meaning and effect of international conventions may be gathered from the writings and decisions of learned authors, foreign courts, and expert international bodies: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 392 per Mason CJ, 396-7 and 399-400 per Dawson J, 405 per Toohey J, 416 per Gaudron J, 430 per McHugh J; Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 at 117 per Gummow J; Commonwealth v Hamilton (2000) 108 FCR 378 at 388 per Katz J; Commonwealth v Bradley (1999) 95 FCR 218 at 237 per Black CJ. Note also Fothergill v Monarch Airlines Ltd [1981] AC 251 at 294-5 per Lord Scarman.
  53. CSECR General Comment No 5 (1994), Persons with Disabilities, (Eleventh session, 1994), UN Doc E/C.12/1994/13 (1994).
  54. Ibid [9].
  55. Ibid [11].
  56. Ibid [35].
  57. UN Doc E/C12/1999/10 (1999) [36].
  58. Ibid [6].
  59. Ibid [7].
  60. Committee on the Rights of the Child General Comment No 1 (2001), The Aims of Education, CRC/GC/2001/1 [9].
  61. Ibid [10].
  62. UN Doc E/C12/1994/13 (1994), [7].

Last updated 1 June 2004.