Hashish v The Minister for Education of Queensland
[1997] QCA 13
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- Unreported Judgment
- Appeal Determined - Special Leave Refused (PC/HCA)
- Hashish v The Minister for Education of Queensland[1997] QCA 13
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Hashish v The Minister for Education of Queensland[1997] QCA 13
Reported at [1998] 2 Qd R 18
Hashish v The Minister for Education of Queensland[1997] QCA 13
Reported at [1998] 2 Qd R 18
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 3238 of 1996
Brisbane
| Before | Fitzgerald P. McPherson J.A. Thomas J. |
[Hashish v. Minister for Education of Qld.]
BETWEEN:
DEAN HASHISH
Appellant
AND:
THE MINISTER FOR EDUCATION OF
QUEENSLAND
Respondent
REASONS FOR JUDGMENT - FITZGERALD P.
Judgment delivered 25 February 1997
This is an appeal on a question of law[1] from a judgment in the Trial Division on 20 March 1996, which quashed an interim order made by the Anti-Discrimination Tribunal (Queensland) on 9 January 1996. Apart from costs, the only relief sought by the appellant from this Court is that the appeal be allowed and the interim order of the Tribunal reinstated. The matter must be decided in an unsatisfactory context, in that a number of matters are unclear, including what final orders will be sought by the appellant from the Tribunal. It is possible that the Tribunal will be asked to do no more than extend the interim order which it made prohibiting the respondent “from doing any act preventing [the appellant] from attending the Narbethong School for the Visually Handicapped and from doing any act preventing him from continuing to receive appropriate special education services there, pending the resolution of this matter”, or make orders to similar effect, perhaps in mandatory terms; alternatively, the appellant might seek orders which require the respondent to enrol and permit the attendance of the appellant at a State primary or secondary school and provide him with an appropriate program of instruction.
The Tribunal’s powers after hearing the appellant’s complaint against the respondent will be either to dismiss the complaint under s. 210 of the Anti-Discrimination Act or to make one of the orders specified in s. 209, which, so far as presently material, provides:
“209.(1) If the Tribunal decides that the respondent contravened the Act, the Tribunal may make 1 or more of the following orders -
- an order requiring the respondent not to commit a further contravention of the Act against the [appellant] ... specified in the order;
...
- an order requiring the respondent to do specified things to redress loss or damage suffered by the [appellant] ... because of the contravention;
... .”
The Tribunal’s power to make an interim order derived from sub-s. 190(1), under which the Tribunal had power to make an interim order “prohibiting [the respondent] from doing an act that might prejudice an order that the Tribunal might make after a hearing”. Having regard to the terms of sub-s. 209(1), an interim order may only be made under sub-s. 190(1) if the Act has been contravened; the Tribunal found a “prima facie case” of contravention, namely, the exclusion of the appellant from Narbethong and the State education system generally on the basis of his age and impairment.[2]
The presently material facts can be briefly stated. The appellant, who was born on 5 March 1977 and is aged 19 years, is blind and deaf and has not reached a stage of development normal for his age; he has nerve communication problems and is low functioning. He is, and at all material times since 1983 was, enrolled at Narbethong School, which is a “State educational institution” and “special school” within the meaning of sub-s. 3(1) of the Education (General Provisions) Act 1989. The appellant is a “student” within the meaning of that Act: see sub-s. 3(1) “student” and sub-s. 3(4). It is not in dispute that the Narbethong School was established under s. 13 of the Act, or that sub-s. 12(1) applies; that sub-section and the material portions of s. 3 are set out below. Shortly after he attained the age of 18 years on 5 March 1995, notification was given to the appellant that he would be excluded from Narbethong School at the end of 1995, and subsequently it was determined not to provide him with further education at any State educational institution; he is being permitted to continue to attend Narbethong School only until this litigation is resolved.
Although he is currently permitting the appellant to attend Narbethong School, the respondent says that the appellant’s continued attendance there is contrary to the provisions of the Education (General Provisions) Act because he has attained the age of 18 years; the appellant’s exclusion from Narbethong School “is necessary to comply with” the material provisions of the Education (General Provisions) Act: see ss. 106(1)(a) and (2) of the Anti-Discrimination Act.[3] That is the basis upon which the respondent succeeded in the Trial Division, and the sole basis upon which he has resisted this appeal. Further, it was argued for the respondent, in reply to additional arguments of the appellant based on the Disability Discrimination Act, that the appellant’s exclusion from Narbethong School is not contrary to the Disability Discrimination Act, because the basis of his exclusion is his attainment of the age of 18 years and age is not a “disability” within the meaning of the Disability Discrimination Act or otherwise a subject of its operation. The respondent also argued, unfortunately without elaboration, that the material provision of the Disability Discrimination Act, which appears to be s. 22, has no relevant application because of ss. 12 and 13 of that Act. Under sub-s. 12(4), s. 22 is a “limited application provision” as defined in sub-s. 12(1), and hence only has effect as provided in s. 12; only sub-s. 12(8) appears potentially relevant, although the meaning of sub-ss. 12(13) and (14) is debatable. I am unsure that I understand the reference in the respondent’s argument to s. 13, since, although it only applies insofar as s. 22 would otherwise have material effect because of a provision of s. 12, it does nothing of possible relevance which I can discern except affirm the operation of the Anti-Discrimination Act to the extent that it “is capable of operating concurrently with” the Disability Discrimination Act; presumably, the respondent’s intended submission was that s. 13 of the Disability Discrimination Act preserves the operation of s. 106 of the Anti-Discrimination Act, but no attempt was made to demonstrate that any presently relevant operation of s. 106, i.e. in relation to the Education (General Provisions) Act, was compatible with the operation of s. 22 of the Disability Discrimination Act if and insofar as the latter provision is applicable by virtue of sub-s. 12(8). Finally, the respondent argued that the appellant’s exclusion from Narbethong School occurred before 1 March 1996, and hence was not unlawful under the Disability Discrimination Act by virtue of sub-s. 47(3). In part at least, this submission was related to the proposition that the Tribunal’s interim order was made prior to that date and hence any material decision or other act of the respondent must have occurred before then; however, this point seemed not to be pressed on the footing that it would involve added delay and expense without a determination of the legal question on which the respondent succeeded in the Trial Division, as it could be overcome by the appellant requiring a further decision from the respondent.
It can be seen from what has been said that all of the respondent’s submissions were founded on his premise that the appellant’s exclusion from Narbethong School was required by the Education (General Provisions) Act because he has attained the age of 18 years. Conversely, at its most extreme, the appellant’s argument seemed to be that the appellant, as a student enrolled at Narbethong School, is lawfully entitled to continue in attendance there unless suspended or excluded for cause under ss. 24 or 25; it is common ground that those provisions are not of present relevance. The appellant also advanced an intermediate argument, namely that, if he is not lawfully entitled to continue as a student at Narbethong School, he is lawfully able to do so, and, by virtue of the Anti-Discrimination Act and/or the Disability Discrimination Act, he cannot lawfully be excluded by reason of his age and/or impairment. This argument would involve reference to, for example, that part of sub-s. 106(1)(a) of the Anti-Discrimination Act which, subject to possible conflict with the Disability Discrimination Act, permits an act which “is specifically authorised by” the material provisions of the Education (General Provisions) Act. The respondent’s written outline of argument and oral submissions completely ignored this part of the appellant’s case; for example, it was not submitted for the respondent that he had or has a discretion to provide education to the appellant or exclude him from attendance at Narbethong School although he is over the age of 18 years, and that in exercising that discretion, sub-s. 12(1)(a) authorised the respondent to take the appellant’s age and impairment into account.[4] In the circumstances, including the fact that the Tribunal’s order to which the appeal relates is only an interim order and it is desirable that this appeal be determined expeditiously, I do not propose to consider whether the Tribunal’s interim order should have been quashed on some basis on which the respondent has not sought to rely.[5]
The material parts of s. 3 and sub-s. 12(1) of the Education (General Provisions) Act are as follows:
“3.(1) In this Act -
...
‘disabled person’ means a person who is a disabled person in accordance with subsection (3).
...
‘primary education’ means education offered in years numbered 1 to 7, both inclusive.
‘primary school’ means a school, not being a special school, providing primary education.
...
‘secondary education’ means education offered in years numbered 8 to 12, both inclusive.
‘secondary school’ means a school, not being a special school, providing secondary education.
...
‘special education’ means educational programs and services appropriate to the needs of a disabled person that are additional to or otherwise different from educational programs generally available to persons of that age who are not disabled persons.
‘special school’ means a school providing special education.
‘State educational institution’ means any educational institution established pursuant to section 13, 14 or 15.
...
‘State school’ means a preschool centre, primary school, secondary school or special school.
‘student’ means a person who is a student in accordance with subsection (4).
...
(3)a person who has not attained the age of 18 years and who, in the opinion of the Minister, is unlikely to attain those levels of development of which the person is capable unless the person receives special education, is a disabled person for the purposes of this Act.
(4)a person enrolled in a school or enrolled or registered in any other educational institution, or a person who, in the opinion of the Minister, is a student, is a student for the purposes of this Act.”
“Provision of State education
12(1)For every student attending a State educational institution ..., there shall be provided a program of instruction in such subjects and of such duration as the Minister approves that -
- has regard to the age, ability, aptitude and development of the student concerned;
- is an integral element within the total range of educational services offered with the approval of the Minister first had and obtained;
- takes account and promotes continuity of the student’s learning experiences;
- recognises and takes account of the nature of knowledge;
- has regard to whether enrolment is compulsory or non-compulsory.”
The respondent’s argument that the appellant is not a “disabled” person for the purposes of the Education (General Provisions) Act because he has attained the age of 18 years seems to me correct. The respondent’s remaining proposition was that only a disabled person may receive special education at a special school.[6] As the appellant correctly pointed out, the Act does not expressly say so. Nonetheless, it is implicit in s. 3 that special education at a special school is not a universal entitlement; for example, even a person who is of the “age of compulsory attendance” (“not less than 6 nor more than 15 years of age” - sub-s. 3(1)), who has no need of additional or different education programs to or from other persons of that age (see the definition of “special education”) cannot, in my opinion, insist on enrolment and education at a special school. While an entitlement to enrolment is not in issue in the present case, in which the appellant is a student enrolled at Narbethong School, I can find nothing in the Education (General Provisions) Act to indicate that a person who is enrolled at a special school is lawfully entitled to remain there permanently. Although there is nothing in the Education (General Provisions) Act which expressly provides to the contrary, I do not accept the proposition that, once enrolled at a State school, a person is lawfully entitled to remain there indefinitely unless suspended or excluded under ss. 24 or 25, with the respondent obliged to continue to provide him or her with a program of instruction irrespective of any change in circumstances. Thus, for example, a person enrolled at a State secondary school who has completed year 12, perhaps with an OP1 score, has no lawful entitlement to remain at school, year in and year out, repeating year 12 indefinitely.
It does not necessarily follow that a person who was a disabled person when he or she enrolled at a special school (with the respondent’s permission) ceases even to be lawfully able to continue at the special school when he or she ceases to be a disabled person upon attaining the age of 18 years although still in need of additional or different educational programs, or “special education”. Neither the language of the Education (General Provisions) Act nor the statutory purpose seems to me sufficient to support the respondent’s submission that only a disabled person is lawfully able to receive special education at a special school, so that, for example, a person otherwise suitable to continue to receive special education is automatically excluded from further attendance at the special school at which he or she is enrolled on his or her 18th birthday. The generalised broad language and incomplete structure of the Act do not necessitate such an inconvenient and unfair result. As has already been noted by reference to the appellant’s ongoing attendance at Narbethong School, in practice the respondent has not adopted the approach to the Act which would be required if his primary submission was correct.
Although it is nowhere spelt out, it is at least consistent with sub-s. 12(1), especially the reference in it to the respondent’s power to approve the “duration” of the “program of instruction” provided to a “student attending a State educational institution”, and it avoids the unacceptable consequences of the more rigid conflicting views of the appellant and respondent, that the Minister has a discretion concerning whether or not a student is able to continue to attend a State educational institution at which he or she is enrolled. It must be added immediately that such a discretion, like any other statutory power, can only be exercised for the purposes of the Act and consistently with its terms, including any limitation or other qualifications which emerge from the statutory context; thus, for example, a student could not lawfully be excluded from attendance arbitrarily or capriciously; presumably such a decision could be challenged under the Judicial Review Act 1991, although that is of no present consequence. What is of importance is that, in my opinion, a student at a special school who turns 18 and ceases to be a “disabled person” is not automatically excluded by the Act from further attendance; his or her continued attendance is dependent on the respondent’s discretion.
In my opinion, the respondent had and has a discretion with respect to the “duration” of the appellant’s continued attendance at Narbethong School; while the respondent had and has a discretion to permit the appellant to continue in attendance when he attained the age of 18 years and ceased to be a disabled person, the respondent also had and has a discretion to deny him continued attendance by reference to the considerations specified in paras. (a) to (e) of sub-s. 12(1). However, the exercise of that discretion is subject to the Anti-Discrimination Act and the Disability Discrimination Act; it will be for the Tribunal to decide in due course whether the respondent has contravened the Anti-Discrimination Act, together with such further questions as might arise by reference to the interaction between the Queensland legislation and the Disability Discrimination Act.
It follows from what I have said that I am of opinion that the respondent’s contention that the appellant cannot lawfully attend a special school because he has attained the age of 18 years is incorrect.
Were the respondent’s contention correct, quite apart from the other matters raised by the appellant, it would not necessarily follow that the Tribunal’s interim order was wrong. It is not obvious to me that the Tribunal’s power under sub-s. 190(1) of the Anti-Discrimination Act is limited to interim orders that require conduct which is consistent with earlier legislation such as the Education (General Provisions) Act; the terms of sub-s. 190(1) of the Anti-Discrimination Act are quite broad, and, superficially at least, appear sufficient to authorise interim orders to preserve the status quo pending the final determination of a proceeding before the Tribunal.
Further, the respondent acknowledged that he has a discretion to provide education to the appellant at a State educational institution other than a special school; if the respondent’s argument that the appellant cannot lawfully attend a special school were correct, it is difficult to see why it would not have been proper for the Tribunal to make an interim order for the provision of an appropriate program of instruction to the appellant at a State primary or secondary school pending the final determination of the Tribunal proceeding, or why this Court should not make such an order under sub-s. 218(a) and (b) of the Anti-Discrimination Act. However, it is unnecessary to pursue these questions.
Since the respondent has failed on the only ground he relied on to support his contention that the Tribunal’s interim order was wrongly made, that order should be restored. I would allow the appeal with costs to be taxed, set aside the order quashing the interim order of the Tribunal and order the respondent to pay the appellant’s taxed costs of the proceeding in the Trial Division.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 3238 of 1996
Brisbane
[Hashish v. Minister for Education of Qld.]
BETWEEN:
DEAN HASHISH
Appellant
AND:
THE MINISTER FOR EDUCATION OF
QUEENSLAND
Respondent
Fitzgerald P.
McPherson J.A.
Thomas J.
Judgment delivered 25 February 1997
Separate Reasons for Judgment of each member of the Court, Fitzgerald P. dissenting
APPEAL DISMISSED.
| CATCHWORDS: | ADMINISTRATIVE LAW - Anti-discrimination - appeal against order setting aside interim order made by Anti-Discrimination Tribunal restraining respondent from preventing appellant from receiving special education services - appellant no longer a “disabled person” for purposes of Education (General Provisions) Act 1989 - whether respondent’s action within s. 106(1)(a) of Anti-Discrimination Act 1991. |
| Counsel: | Mr G.H. Garde Q.C. for the appellant. Mr G.J. Gibson Q.C. with him Mr E.J. Morzone for the respondent. |
| Solicitors: | Welfare Rights Centre Inc for the appellant. Crown Solicitor for the respondent. |
| Hearing Date: | 27 November 1996 |
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 3238 of 1996
Brisbane
| Before | Fitzgerald P. McPherson J.A. Thomas J. |
[Hashish v. Minister for Education of Qld.]
BETWEEN:
DEAN HASHISH
Appellant
AND:
THE MINISTER FOR EDUCATION OF QUEENSLAND
Respondent
REASONS FOR JUDGMENT - McPHERSON J.A.
Judgment delivered 25 February 1997
The respondent to this appeal is the Minister for Education of Queensland, who by s. 4(1) of the Eduction (General Provisions) Act 1989 (“the Education Act”) is constituted a corporation sole. The applicant is a young man, born on 5 March 1977, who, together with other disabilities, has the great misfortune to be unable either to see or hear. Before his 18th birthday on 5 March 1995 he was enrolled as a student at the Narbethong School for the Visually Handicapped, which is a special school carried on by the respondent. The respondent advised the applicant’s parents that the applicant would be permitted to continue at the School only to the end of the 1995 school year. On 5 January 1996 they were advised that the applicant could not be enrolled again. In fact, however, he has been granted further extensions which, pending the resolution of this litigation, will continue until the end of the first term of 1997.
Earlier, on 27 April 1995, a complaint had been made on the applicant’s behalf to the Queensland Anti-Discrimination Commission to the effect that any attempt to exclude the applicant from further education would infringe the Anti-Discrimination Act 1991 (Qld.), and would contravene s. 38(c) “based upon the attributes of either age or impairment ...”. On 24 December 1995, written notice of application was given to the Anti-Discrimination Tribunal seeking an order that:
“The applicant ... be allowed to continue his education in the Respondent’s Narbethong School for Visually Handicapped pending the determination by the Tribunal, of a complaint of discrimination lodged against the respondent by the applicant.”
An application for an interim order was heard by the Tribunal constituted by a single member, who delivered her decision in reasons dated 9 January 1996. The order she made was in the following terms:
“The respondent is prohibited from doing an act preventing Dean Hashish from attending the Narbethong School for the Visually Handicapped and from doing an act preventing him from continuing to receive appropriate special education services there, pending the resolution of this matter.”
From that decision the respondent appealed under the Anti-Discrimination Act to the Supreme Court, which on 20 March 1996 delivered a decision quashing the interim order made by the Tribunal. This is now the applicant’s appeal from that order seeking to have the Court’s decision set aside and the interim order of the Tribunal restored. Under s. 217(1) of that Act, an appeal to the Supreme Court, and consequently to this Court, is limited to an appeal against a Tribunal decision on a question of law.
The original complaint dated 27 April 1995 mentioned s. 38(c) of the Anti-Discrimination Act, which provides that an education authority must not discriminate in the arrangements made for, or the criteria used in, deciding who should be offered admission as a student. The respondent satisfies the definition of “education authority” in s. 4 of that Act, which in s. 3 is expressed to bind the Crown. In the proceedings before the Tribunal and the Supreme Court, reliance was placed on s. 39(c) rather than s. 38(c). Section 39(c) prohibits an educational authority from discriminating by excluding a student, and by s. 4 of that Act “exclude”, in relation to a student, is defined to mean “expel”. It is perhaps not entirely clear that what the respondent has done is to “expel” the applicant from the School according to the ordinary meaning of that word, rather than to refuse to renew or continue his enrolment there; but no point was made of that in the submissions before us. The appeal was conducted on the basis that the question of law to be determined was whether or not the respondent’s action came within the provisions of s. 106(1)(a) of the Anti-Discrimination Act. It contains a provision of which the effect is that a person may do an act (which otherwise would be discriminatory) “that is necessary to comply with, or is specifically authorised by ... (a) an existing provision of another Act”.
It is convenient to approach the question in issue on this appeal by deciding first whether the exclusion of the applicant is, within the meaning of s. 106(1)(a) of the Anti-Discrimination Act, “an act necessary to comply with ... an existing provision of another Act”. Because of the extension to the end of the first term in 1997 pending resolution of the litigation, the applicant has in fact not yet been excluded from Narbethong School. It is, however, with a view to preventing effect being given to a decision to exclude him that an interim order was sought in the Tribunal, and the matter may be considered on that footing.
The applicant’s submission was that the Minister possessed a discretion whether or not to exclude the applicant that had been or was being exercised to discriminate against the applicant in a way that infringed prohibitions in the Anti-Discrimination Act. The respondent, on the other hand, argued that the Education Act conferred on or vested in the Minister no power to permit the applicant to remain at the School, and that, in consequence, the Education Act imposed on the Minister a duty to exclude the applicant or prevent him from remaining at it. That being so, exclusion of the applicant was, it was submitted, an act that was necessary to comply with an existing provision of another Act, namely the Education Act.
Before turning to the particular question whether the Minister has exercised his discretion in a way that contravened the Anti-Discrimination Act, it is therefore necessary to begin by deciding whether the Minister has any power to permit the applicant to remain at the Narbethong School.
The Minister is, it has been noticed, a corporation sole by virtue of s. 4(1) of the Education Act, s. 4(1). As such, it may be assumed that the Minister has, subject to that provision, the legal capacity of a natural person. A natural person would, no doubt, have power in law to establish, maintain and carry on a school or schools subject to compliance with any relevant legislation on the matter. Schooling is, however, not one of the ancient prerogatives of the Crown considered as the executive government of this State. A Minister (whether or not incorporated) of the Crown therefore has only such powers of establishing, maintaining and carrying on schools as are conferred by statute, which in this instance is the Education Act.
For the purpose of exercising his statutory powers to conduct schools, the Minister needs access to the consolidated funds of Queensland, which are or become available only as a result of Parliamentary appropriation. It is a fundamental principle of representative government in the form in which it has been received in Queensland that “not a penny of revenue can be legally expended except under the authority of some Act of Parliament”. The quotation is from A.V. Dicey, The Law of the Constitution, at 313 (7th ed. 1916), which was adopted and applied in the Full Court of Queensland in Australian Alliance Assurance Co. v. Goodwyn [1916] St.R.Qd. 225, at 253 (Lukin J.); see also at 272 (Shand J.). The statement is repeated in the current 9th ed. (1952) of Dicey, at 317. Observations to similar effect appear in Auckland Harbour Board v. The King [1924] A.C. 318, at 326-327.
We are, it should be stressed, not concerned here with the validity of a contract with government entered into without prior appropriation from consolidated funds, which was the question considered by the High Court in New South Wales v. Bardolph (1934) 52 C.L.R. 455. It may confidently be assumed that funds for education have in the relevant years been properly appropriated by the Parliament of Queensland, and that they will continue to be available in future. See, for example, Appropriation Acts 1996, nos. 17 and 18. The issue under consideration is not one of appropriation as such, but of the purposes for which appropriated funds may be applied by the Minister. As to that, Professor Enid Campbell is surely correct in saying (vol. 4 (1991-2) Adelaide L.Rev. 145, at 162) that when what is done towards provision of a service by government “cannot legally be done without distinct legal provisions authorising it to be done, then clearly a mere vote of money for the purpose cannot give the requisite power”. The question here is whether a payment made or to be made is within the limits of the statutory authority to make it. In Auckland Harbour Board v. The King [1924] A.C. 318, 327, the Judicial Committee held that a payment out of consolidated funds without Parliamentary authority is “simply illegal and ultra vires”, and so may be recovered by the government. The same result would follow if, after funds have been validly appropriated, the money was then applied to a purpose not authorised by statute. The relevant Minister would, at least if he was knowingly a party to the payment, incur a personal liability to repay it, and, perhaps as well, criminal responsibility under s. 408C of the Criminal Code.
The purpose of this initial digression is to show that the respondent Minister has a duty not to apply funds that have been appropriated by Parliament to education for any purpose or purposes not authorised by the Education Act. The point may be thought sufficiently obvious not to warrant such extensive discussion; but the question was not presented in precisely that form on appeal. In my opinion, the question whether the respondent’s action in excluding the applicant from the School was, or is, in terms of s. 106(1)(c) of the Anti-Discrimination Act, an act “necessary to comply with an existing provision of another Act” must be determined in the context not only of the Education Act itself but of the constitutional framework under which the Minister establishes, maintains and carries on schools pursuant to that Act. If it is outside the statutory power of the Minister to permit the applicant to remain at Narbethong School, then the exclusion of the applicant is in terms of s. 106(1)(c) “necessary to comply with ... an existing provision of” that Act.
This was essentially the form in which the respondent’s submissions were presented on appeal, to which I would add only that in s. 106(1)(c) of the Anti-Discrimination Act the “existing provision of any other Act” is here capable of referring not only to the Education Act itself but also to the Constitution Act 1867 (Qld.). As appears from the reasons for judgment of Lukin J. (with whom Cooper C.J. agreed) in Alliance Assurance Co. v. Goodwyn [1916] St.R.Qd. 225, at 251‑255, the constitutional principle rests ultimately on the provisions of ss. 18, 19, and 34 to 40, and principally ss. 34 and 39, of the Constitution Act. In the words of Shand J., with whom Real and Chubb JJ. agreed in that case, “by virtue of the provisions of the Constitution Act, no part of the public revenue can legally be appropriated to or used for any purpose to which it has not been appropriated by Parliament ...” ([1916] St.R.Qd. 225, at 272).
Permitting the applicant to remain at a State school which he is not authorised by the Education Act to attend unavoidably involves the use by the Minister of public revenue for a purpose to which it has not been appropriated by Parliament. The critical provisions of ss. 34, 35, 39 and 40 of the Constitution Act are still in the form, or substantially in the form, in which they were considered by the Court in 1916. They are, within the meaning of s. 106(1)(c) of the Anti-Discrimination Act, existing provisions of another Act with which it is necessary for the Minister to comply in administering the Education Act and carrying on State schools under it. I therefore find myself unable to accept the submission of Mr Garde Q.C. that there is no provision in another Act on which s. 106(1)(c) is capable of operating.
The remaining question is whether or not the Minister is authorised by the Education Act to permit the applicant to continue attending Narbethong School. It is only if, as Mr Garde Q.C. contends, the Minister has that power, that the appeal and the application can succeed on the basis that the Minister exercised his discretion in breach of the Anti-Discrimination Act.
The pivotal provision in the Education Act is s. 13. Its operation and effect are not made easier to understand by the plethora of definitions in which it is embedded. Section 13 provides that the Minster “may establish, maintain and carry on State schools that the Minister considers necessary”. It follows from what has already been said that, whether or not the Minister considers them necessary, the Minister may not under that section of the Act validly establish, maintain and carry on schools that do not satisfy the definition of State schools. In that regard, ss. 14 and 15 in some respects extend the power conferred by s. 13; but, for a number of reasons, they are not relevant for present purposes. I do not understand the applicant to be relying on any of them to sustain the application for an interim order preventing his exclusion from Narbethong School.
“State school” is defined to mean in s. 3(1) a pre-school centre, primary school, secondary school or special school. Special school means “a school providing special education”. The expression “special education” is defined to mean:
“... educational programs and services appropriate to the needs of a disabled person that are additional to or otherwise different from educational programs generally available to persons of that age who are not disabled persons.”
Section 3(1) takes up the expression “disabled person” by providing that it means a person who is disabled in accordance with subsection (3). Section 3(3) provide:
“(3)A person who has not attained the age of 18 years and who, in the opinion of the Minister, is unlikely to attain those levels of development of which the person is capable unless the person receives special education, is a disabled person for the purposes of this Act.”
It seems plain beyond argument that the applicant is not a “disabled person” as defined. That is because he is a person who attained the age of 18 on 5 March 1995. Narbethong School is a State school providing special education. It follows that, having turned 18, the applicant is not eligible to attend or remain at it. It was, however, submitted that the applicant is in fact now attending Narbethong School, and that s. 12(1) imposes on the Minister a duty to provide for him in the manner prescribed in that provision. So far as material, what s. 12(1) says is:
“12.(1).For every student attending a State educational institution established pursuant to section 13, 14 or 15(1)(c), there shall be provided a program of instruction in such subjects and of such duration as the Minister approves that -
- has regard to the age, ability, aptitude and development of the student concerned;
- is an integral element within the total range of educational services offered with the approval of the Minister first had and obtained;
- takes account and promotes continuity of the student’s learning experiences ..”
For my part, I cannot see that this provision assists the applicant’s submission. It is true that it casts on the Minister a particular statutory duty in respect of every student attending a State educational institution, but the applicant is at present being permitted to attend Narbethong School only because of this litigation, and pending its determination. No doubt he is being provided with a program of instruction in accordance with s. 12(1); but once his eligibility or right to be there is determined, and assuming the application is decided adversely to him, it will not be lawful for the Minister to permit him to remain there. Instead, it will be his duty to exclude or “expel” him. The Minister is not authorised or permitted to spend public funds on educating the applicant at a special school that under the Education Act the Minister is empowered by s. 13 to carry on only for the purpose of providing educational services for persons of whom the applicant is not one.
The applicant sought to raise on this appeal a further question, which was whether the respondent had contravened the Anti-Discrimination Act by excluding him from a State school that was not a “special school” as defined. In my opinion it is not a question that he should be permitted to raise in this Court at this stage of these proceedings. The interim relief sought from the Tribunal was confined to allowing the applicant, pending determination by the Tribunal of his complaint of discrimination, to continue his education at Narbethong School. The relief granted by the Tribunal was an order pending such determination prohibiting the respondent from doing an act preventing the applicant from attending that School and continuing to receive appropriate special education services there. To permit the applicant now, and in this Court, to litigate the question whether he is entitled to attend some other form of State school or educational institution is likely to raise fresh issues of fact on which, because of the limited function of this Court on an appeal like this, may deprive the respondent of the opportunity of adducing evidence that might have been presented to the Tribunal. An example mentioned by Mr Gibson Q.C. for the respondent is evidence that the provision of special services would, in terms of s. 44(1)(b) of the Anti‑Discrimination Act, “impose unjustifiable hardship on the educational authority”.
The only remaining matter is the impact of the Disability Discrimination Act 1992 (Cth.) (“the Commonwealth Act”) on the State legislation. The Commonwealth Act operates only to preclude discrimination based on disability. There is no evidence that the applicant is being excluded from Narbethong School for any reason apart from his age, which is a factor that is not within the scope of the Commonwealth Act.
I would dismiss the appeal.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 3238 of 1996
Brisbane
| Before | Fitzgerald P. McPherson J.A. Thomas J. |
[Hashish v. Minister for Education of Qld.]
BETWEEN:
DEAN HASHISH
(Complainant) Appellant
AND:
THE MINISTER FOR EDUCATION OF QUEENSLAND
Respondent
REASONS FOR JUDGMENT - THOMAS J
Judgment delivered 25 February 1997
This is an appeal against an order setting aside an interim order made by an anti-discrimination tribunal. As the reasons of the President and McPherson JA show, there has been considerable difficulty in identifying the true issues, either upon the principal application, the application for interim relief, or now upon the present appeal.
Issues
The principal application is based on the allegation that the applicant "is currently a mature-age ordinary student and has a right to continue with his education". The application expressly concedes that the applicant is "no longer a special needs disabled student as he no longer meets the definition of disabled student".
The application for interim order maintained that position, alleging "the essence of the applicant's complaint is that after the age of eighteen the applicant must be regarded as an ordinary student and entitled to educational services from the respondent as other ordinary students irrespective of impairment". The order which it sought was "that he be allowed to continue his education in the respondent's Narbethong School for Visually Handicapped pending the determination . .". On 9 January 1996 the following interim order was made:
"The respondent is prohibited from doing any act preventing Dean Hashish from attending the Narbethong School for the visually handicapped and from doing any act preventing him from continuing to receive appropriate special education services there, pending the resolution of this matter."
That order was set aside by Ambrose J on 20 March 1996. The relief sought upon the present appeal is the restoration of the interim order.
The ultimate issue on this appeal is whether the Member erred in law in making that interim order (s. 217 Anti-Discrimination Act 1991 (Qld)).
Facts
It is unnecessary to recount the background which is adequately described in the reasons of Fitzgerald P and McPherson JA. On 5 March 1995, the applicant turned eighteen. For reasons stated below he thereby ceased to qualify as "a disabled person" for whom "special education" could be provided by the Minister under the Education (General Provisions) Act 1989. The Minister did not enforce any expulsion at that stage and the applicant was permitted to remain at Narbethong for the balance of that year, with the intimation that that schooling must end on 15 December 1995.
The principal application was filed on his behalf on 27 April 1995, conceding his lack of eligibility for continued application as a "special needs disabled student" and asserting rights as an ordinary mature-age student. There has however never been any application to enrol at any other school than Narbethong.
After the end of that school year, on 9 January 1996, the above interim order was made in the Anti-Discrimination Tribunal. That order was set aside on 20 March 1996, but the Minister has not enforced the exclusion while the present appeal is pending.
In the result the applicant continues to be enrolled at Narbethong and to receive the benefit of the special resources that are deployed at that school. He will soon be twenty. Resolution of the principal application seems a distant prospect having regard to the manner in which the litigation has so far been conducted.
Cessation of entitlement as a "disabled person" to receive "special education"
The definition of "disabled person" under the Education (General Provisions) Act 1989, which was in force at the time of commencement of the Anti-Discrimination Act 1991 (Qld), carries the consequence that upon attaining the age of eighteen years, a person ceases to be a disabled person for the purposes of the Education (General Provisions) Act. The applicant lost that status on 5 March 1995, and cannot regain the rights that flow from it. This was conceded in the application. Mr Garde QC for the applicant argued however that there is no provision in the Act that says that he cannot be a student at a special school. He sought to draw a distinction between the right to attend a special school and the right to receive the special educational programmes and services that a special school provides. If it can be shown that an "ordinary" student could be enrolled in that school, counsel would have a basis for submitting that the applicant's exclusion has been based on considerations that are arguably discriminatory.
Relevant parts of s. 3 of the Education (General Provisions) Act are:
"3(1) . . . 'disabled person' means a person who is a disabled person in accordance with subsection (3).
. . .
'special education' means educational programs and services appropriate to the needs of a disabled person that are additional to or otherwise different from educational programs generally available to persons of that age who are not disabled persons.
. . .
(3) A person who has not attained the age of 18 years and who, in the opinion of the Minister, is unlikely to attain those levels of development of which the person is capable unless the person receives special education, is a disabled person for the purposes of this Act."
The right of the Minister to provide special education is recognised by s. 12, and the right to establish and carry on such state schools as the Minister considers necessary is given by s. 13. That must include the power to carry on special schools for disabled persons.
Having regard to the definitions, it seems to me that the notion of receiving special education does not sit easily with the notion of a right to be a student at a special school without receiving special educational programmes and services appropriate to that student's needs "that are additional to or otherwise different from educational programmes generally available to persons of that age who are not disabled persons". Nothing in the Act suggests that a person may be a student at a special school without being a disabled person for whom appropriate educational programmes and services are provided. Indeed the indications are all to the contrary. This point will be further considered under the next heading.
The Minister is bound by the Act, as McPherson JA's reasons emphasise. Under the Act the Minister may, indeed must, terminate such special educational programmes in respect of a person who is no longer a "disabled person".
The application of s. 106 of the Anti-Discrimination Act in this situation is perfectly clear. The Minister's exclusion of the applicant from Narbethong was necessary to comply with and was specifically authorised by existing provisions of another act, namely the Education (General Provisions) Act 1989. The Minister simply had no power or right to do otherwise. The position is therefore distinguishable from that in Waters v. Public Transport Corporation (1991) 173 CLR 349.
It follows that insofar as there is any complaint of "excluding a student" that would otherwise be prohibited by s. 39 of the Anti-Discrimination Act, such discriminatory acts are permitted by s. 106.
There is therefore no justification, either for ultimate relief or interim relief based upon any exclusion of the applicant from a special programme at a special school.
Right to attend a special school as an "open" student
This point raises a notional failure to admit the applicant to Narbethong as a mature-age ordinary student. This is capable of raising an issue under s. 38(c) of the Anti-Discrimination Act. The crucial finding of the Member which formed the basis of the interim order was:
"I am not convinced that it follows that, because Dean is no longer a disabled person within the meaning of s. 3(3) of the Education (General Provisions) Act, that special education cannot be provided to him and that he cannot attend a special school."
The evidence on this question was all one way. It shows that the Narbethong School for the Visually Handicapped is a special school established under s. 13 and that it provides educational programmes and services appropriate to the needs of disabled persons that are additional to and otherwise different from educational programmes available to those who are not disabled. The school does not provide educational programmes for persons who are not disabled. This appears in Mr Burge's affidavit, and there is no evidence to the contrary. In short Narbethong was established as a special school and has been run as such. Special schools are perhaps an example of reverse discrimination in favour of disabled people, conceived and instituted well before the anti-discrimination acts. It is not suggested that this could amount to treating persons such as the applicant "less favourably" than others or that it could constitute discrimination against anyone under the Anti-Discrimination Act. There is no evidence that Narbethong or any other special school has ever been run as a general state school. The Act gives the Minister a discretion to run schools as special schools and it would seem that this has been the case in this instance. There is nothing discriminatory in the Minister's establishment and maintenance of the system in this way, and such a system is authorised by the Act. No duty can be discerned, either under the Anti-Discrimination Act or otherwise which imposes an affirmative duty upon the Minister to convert the special school into something else. I would add that no reason was advanced as to why the Minister should do so.
It therefore seems to me that no basis is shown, in law or in fact, for the view that a person who fails to qualify as a "disabled person" may attend a special school and have special education provided to him or her. The allegedly arguable existence of such a right was the basis upon which the Member proceeded to grant the interim relief. The Member also declined to reach any view on whether s. 106 applied in favour of the Minister. Her reason for so declining was that "the appropriate approach to the making of orders under s. 144 (of the Anti-Discrimination Act) is not necessarily that of the common law. Section 144 contains a broad power to prevent acts which may prejudice the progress of the applicant's complaint." That in my view afforded no justification for failing to recognise the existence of a defence under s. 106 if that section was applicable. Whilst acknowledging "the existence of a strong argument for an exemption (under s. 106)" the Member failed to deal with it.
In finding the existence of a prima facie case, and in declining to consider the applicability of s. 106 the Member erred in law.
Entitlement to be admitted to the general school system
If a prima facie case exists that the applicant is entitled to be admitted to the general school system, with a special programme to be devised by the Minister for the applicant's special needs, it was hardly appropriate to make the interim order requiring the continuation of his "special education" at Narbethong. In truth, those who are responsible for the applicant have not sought that he attend at any other institution than Narbethong, and they have not applied for admission or enrolment at any other school. The eventual hopelessness of any such application for admission to the general school system at a non-special school is only underlined by s. 22(4) of the Disability Discrimination Act 1992 (Cwth):
"This section does not render it unlawful to refuse or fail to accept a person's application for admission as a student at an educational institution where the person, if admitted as a student by the educational authority, would require services or facilities that are not required by students who do not have a disability and the provision of which would impose unjustifiable hardship on the educational authority."
Other issues
It is unnecessary to deal with other issues raised in argument. It may be noted however that Mr Garde QC sought to rely upon the Disability Discrimination Act 1992 (Cwth) and in particular upon s. 22 of that Act which makes it unlawful for an educational authority to discriminate on the ground of disability in the area of education.
In the first place, s. 44 is a "limited application provision" under s. 12(1) of the Disability Discrimination Act, and would apply only if it could be shown to be covered by one or more of ss. 12(5) to 12(14) of that Act. The only arguable application would come through s. 12(8) which permits limited application provisions to have effect to the extent that those provisions:
"(a)give effect to the conventions; or
(b)give effect to the covenant on civil and political rights; or
(c)give effect to the international covenant on economic social and cultural rights; or
(d)relate to matters external to Australia; or
(e)relate to matters of international concern."
Our attention was not drawn to any instrument or circumstance that relates s. 44 to those matters. In my view a party who wishes to rely on legislative grapeshot of this kind has the onus of showing that it has made a direct hit. Courts and tribunals could not function effectively on any other basis. It has not been shown in the present case that s. 44 applies to conduct of the kind that is in issue.
Further, the discriminatory conduct the subject of the original application, and of the interim application, preceded 1 March 1996. That is the date by which, under s. 47(3) of the Disability Discrimination Act, "this Part does not render unlawful anything done by a person in direct compliance with another law". The word "law" includes a law or regulation or any other instrument made under a law of a state.
It is therefore impossible to see how the additional argument under the Disability Discrimination Act injects any additional component into the applicant's case based on the present proceedings.
It may also be noted that the appellant's exclusion from Narbethong was expressly on the basis of his age, not of his disability.
It is unnecessary to deal with other arguments available to the respondent based upon s. 44 and s. 5 of the Anti-Discrimination Act; or the applicability of s. 106 of the Anti-Discrimination Act to any refusal of the Minister to provide or continue to provide a programme of instruction to the applicant, treated as a non-disabled student, when the Minister is expressly authorised by statute to have regard to age, ability, aptitude and other express matters authorising the application of points of discrimination.
I would dismiss the appeal.
Footnotes
[1]Anti-Discrimination Act 1991, sub-s. 217(1). The Supreme Court’s powers are set out in s. 218.
[2]There is a definition of “impairment” in s. 4 of the Anti-Discrimination Act; cf. the definition of “disability” in sub-s. 4(1) of the Disability Definition Act 1992 (Cth.)
[3]Each of the material provisions of the Education (General Provisions) Act is an “existing provision” within the meaning of sub-s. 106(2) of the Anti-Discrimination Act.
[4]The respondent acknowledged that he had a discretion to provide education to the appellant at a State educational institution other than a special school, and, it seems that, at the final hearing before the Tribunal, it will be asserted by the respondent that, under sub-s. 12(1)(a) of the Education (General Provisions) Act and sub-s. 106(1)(a) of the Anti-Discrimination Act, he is “specifically authorised” to exclude the appellant entirely from the State education system. However, that argument was not relied on by the respondent to challenge the Tribunal’s interim order, and raises points of considerable difficulties. The appellant has given notice that, if the Queensland legislation has the effect for which the respondent contends, it will be asserted that it is inconsistent with the Disability Discrimination Act and invalid to the extent of that inconsistency by virtue of s. 109 of the Commonwealth Constitution; further, issues of constitutional validity aside, the relationship between the Education (General Provisions) Act and the Anti-Discrimination Act is complex, and the operation and effect of the Anti-Discrimination Act generally have not been authoritatively considered; provisions of potential relevance in the present matter include paragraphs 6 and 7 of Parliament’s reasons for enacting the legislation, and ss. 3, 5, 6, 7(1)(f) and (h), 8(a), 9-12, 37-40, 44, 103, 106 and the definitions in s. 4 of “attribute”, “contravention”, “direct discrimination” , “discriminate”, “discrimination on the basis of an attribute”, “educational authority”, “educational institution”, “exclude”, “impairment”, “indirect discrimination” and “term”.
[5]Since circulating this judgment in draft, I have seen the draft reasons of the other members of the Court. In the circumstances, including the desirability of not delaying the decision on an appeal with respect to an interim order by elaborating on a dissenting judgment, I do not propose to expand what I initially wrote to deal with additional points which were not argued.
[6]The respondent’s argument asserted a dichotomy between a “disabled person” and what was described as an “ordinary student”, a term not used in the Act and plainly inapposite to the appellant. It was submitted that the respondent had a discretion to provide a program of instruction to an ordinary student “at some other State educational institution after he or she turns 18 years”, but no discretion “to provide special education” (at a special school) to an 18 year old. No practical reason was advanced for this fetter on the respondent’s discretion, which he is currently ignoring by providing education to the appellant at Narbethong School.