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  4. Malaxetxebarria v State of Queensland - [2007] QCA 132

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Malaxetxebarria v State of Queensland[2007] QCA 132

Malaxetxebarria v State of Queensland[2007] QCA 132

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Malaxetxebarria v State of Queensland [2007] QCA 132

PARTIES:

GRACIA MALAXETXEBARRIA (by her next friend ROBYN MALAXETXEBARRIA)

(appellant/respondent)

v

STATE OF QUEENSLAND

(respondent/appellant)

FILE NO/S:

Appeal No 9338 of 2006

SC No 3529 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

20 April 2007

DELIVERED AT:

Brisbane

HEARING DATE:

2 April 2007

JUDGES:

Williams and Keane JJA and Lyons J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

  1. The appeal should be allowed
  2. The orders dated 4 October 2006 be set aside
  3. The decision of the Tribunal dated 18 April 2006 be affirmed

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION – GROUNDS OF DISCRIMINATION – DISCRIMINATION ON BASIS OF AGE – where respondent gifted student – where respondent applied for unconditional acceleration into high school system – where appellant refused respondent full-time attendance at high school – whether refusal was age discrimination

HUMAN RIGHTS – DISCRIMINATION – GROUNDS OF DISCRIMINATION – DISCRIMINATION ON THE BASIS OF AGE – where Department refused initial application for entry to high school – where respondent enrolled in private secondary school – where mid-year report issued by private school – where no subsequent application made to Department – where report not received by Department – whether learned trial judge erred in considering report – whether trial judge erred in identifying the decision forming the basis of the alleged discrimination

Anti-Discrimination Act 1991 (Qld), s 7, s 8, s 9, 10, s 11, s 37, s 38, s 39, s 43, s 106, s 217

Education (General Provisions) Act 1989 (Qld), s 12, s 14

Craig v The State of South Australia (1995) 184 CLR 163, applied

Steed v The Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620, considered

COUNSEL:

A A J Horneman-Wren for the appellant

The respondent was represented by her next friend, her mother

SOLICITORS:

Crown Solicitor for the appellant

The respondent was represented by her next friend, her mother

  1. WILLIAMS JA: I have had the advantage of reading the reasons for judgment of both Keane JA and Lyons J.  In each there is a full statement of the background circumstances giving rise to this appeal.  I agree with the reasons of each of their Honours in concluding that the appeal should be allowed, the order of 4 October 2006 should be set aside, and the decision of the Tribunal of 18 April 2006 should be affirmed.  However, I would add some further brief observations of my own.
  1. When one speaks of discrimination in the area of education based on age one must of necessity be referring to a decision or series of decisions. In order for a court or tribunal to determine whether or not there has been discrimination in that context the decision or decisions, and the basis on which such decisions were made, must be clearly identified. Whilst one does not want to introduce undue formality into hearings alleging discrimination it is nevertheless important to realise that a proper determination can only be made by the tribunal or court if the decision or decisions alleged to constitute the discrimination are clearly particularised.
  1. In my view it was the failure to identify the decision or decisions in question in this case which has resulted in the error made by the judge hearing the appeal from the Tribunal. There was clearly an application (or request) made on behalf of the child to the Department of Education in December 2003 – January 2004, resulting in the decision of the Department of January 2004.
  1. Thereafter there were a series of argumentative emails sent by the child's guardian to numerous public officials raising issues about that decision. Insofar as the Department responded, it was to assert in substance its adherence to the decision of January 2004 and to indicate that the offer contained in that decision remained open.
  1. On the evidence there was no further application made subsequently to January 2004 to have the child reassessed on the basis of academic achievement during the first half of 2004. On the evidence the school report at the end of the first semester in 2004 was not put before the Department as the basis for any reconsideration of its decision in the previous January.
  1. It follows that the judge hearing the initial appeal from the Tribunal erred, because of the imprecision in defining the decision constituting the alleged act of discrimination, in concluding that the reporting of the child's performance in the first semester of 2004 was a relevant consideration.
  1. Further, I agree that s 106 of the Anti-Discrimination Act 1991 (Qld) provides a complete answer to the claims of the respondent.  That section made relevant for present purposes s 12 of the Education (General Provisions) Act 1989 (Qld) which had the effect of making age a relevant consideration in providing a program of instruction for a student attending a State educational institution.  By offering the respondent an individual education plan and then a personalised knowledge pursuit program the appellant complied with the requirements of the Anti-Discrimination Act in the light of the provisions of the Education (General Provisions) Act.  Also s 12 obliged the Department to have regard to the child's "development", a factor not considered relevant by those advocating the child's cause.
  1. As already noted, I agree with the orders proposed by the other members of the Court.
  1. KEANE JA: The substantive issue in this litigation is whether the respondent has been discriminated against, in contravention of the Anti-Discrimination Act 1991 (Qld) ("the Act"), by officers of the Department of Education and the Arts ("the Department") by reason of their failure to allow her unconditional acceleration within the State school system. 
  1. On 18 April 2006, the Anti-Discrimination Tribunal ("the Tribunal") rejected the respondent's complaint of discrimination, but, on 4 October 2006, the learned primary judge allowed the respondent's appeal against the decision of the Tribunal, and remitted the matter for further consideration of the claim. The appellant submits that the decision of the learned primary judge in favour of the respondent was based on a misunderstanding of the facts. I will summarise the legal and factual circumstances leading to the appeal, and the basis for the decision of the learned primary judge, before discussing the appellant's submission.

The respondent's complaint

  1. The respondent was born on 13 May 1994. In the proceedings before the Tribunal, before the learned primary judge, and in this Court, she has been represented by her mother.
  1. Before the Tribunal, the respondent's complaint was that she is a gifted child who was denied acceleration within the State school system from year 6 to year 8 at the beginning of the school year 2004. At that time, the respondent was nine years of age. Her contention was that the failure of those responsible within the State school system contravened s 7(f) of the Act by discriminating against her directly and indirectly on the basis of her age. The respondent claimed $500,000 by way of compensation for this discrimination.

The legislative framework

  1. One of the objects of the Act is to promote equality of opportunity for everyone by protecting them from unfair discrimination in education.[1]  By s 7(f), the Act prohibits discrimination on the basis of the attribute of age.  Section 9 of the Act prohibits direct and indirect discrimination.
  1. According to s 10(1) of the Act, direct discrimination on the basis of an attribute, such as age, "happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different". Section 10(2) provides that "it is not necessary that the person who discriminates considers the treatment is less favourable". Section 10(3) provides that "the person's motive for discriminating is irrelevant". Section 10(4) provides that:

"if there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment."

  1. According to s 11(1) of the Act, indirect discrimination on the basis of an attribute

"happens if a person imposes, or proposes to impose, a term -

(a)with which a person with an attribute does not or is not able to comply; and

(b)with which a higher proportion of people without the attribute comply or are able to comply; and

(c)that is not reasonable."

  1. Section 37 of the Act provides that "[a]n educational authority must not discriminate in the education area if a prohibition in section 38 or 39 applies". Section 38(d) provides that "[a]n educational authority must not discriminate … in the terms on which a person is admitted as a student". Section 39(d) provides that "[a]n educational authority must not discriminate … by treating a student unfavourably in any way in connection with the student's training or instruction".
  1. Section 106 of the Act provides relevantly:

"(1) A person may do an act that is necessary to comply with, or is specifically authorised by -

(a) an existing provision of another Act;

…

(2) In this section -

existing provision means a provision in existence at the commencement of this section."

  1. When s 106 of the Act commenced on 30 June 1992, s 12 of the Education (General Provisions) Act 1989 (Qld) ("the Education Act") provided relevantly:

"(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–

(a) has regard to the age, ability, aptitude and development of the student concerned;

…

  1. takes account and promotes continuity of the student's learning experiences …

…"

The factual background

  1. During the school year 2003, the respondent had been taught by Mr Clive Griffin in a composite year 6/7 class at the Mutdapilly State School. In December 2003, Mr Griffin reported on the respondent's progress in the second semester of 2003 in the following terms:

"Gracia does well across all subjects and is coping quite well with Year Six. I am particularly impressed with her level of understanding in Maths. She is very quick to grasp new concepts. I am also impressed with her reading ability and her ability to research. Academically, Gracia will succeed whatever the educational setting, but it is vital that she be allowed to 'consolidate' in social terms. Socially, next year should be better for her, with some students closer to her age in the class."[2]

  1. Mr Griffin gave evidence at the hearing before the Tribunal. He was not cross-examined. The learned primary judge summarised the effect of Mr Griffin's evidence in the following passage:

"Mr Griffin said that at the end of the school year in 2003 the appellant had completed the Year 6 'learning outcomes' sufficiently to progress to Year 7. For the three months that he taught her she did 'the mainstream Year 6 work performed at an above average to good level in all Key Learning Areas at Year 6 level'. He did not carry out any assessment of the appellant 'against the Key Learning Areas that would be applicable to a Year 7 student'. Mr Griffin did not agree that the appellant had achieved 'all the learning outcomes applicable to a Year 7 student' or that she had completed primary school. The appellant's mother, however, asserted that in 2003 the appellant 'had learnt all of the Key Learning Areas of primary school' and had been doing Year 8 work at home. Mr Griffin said he was extremely concerned at the prospects of the appellant’s being put into a Year 8 class at the age of nine and a half because he did not see any evidence of the social precociousness that would be required for a child of her age to be able to function socially among adolescents. Socially, and, as far as he could observe, emotionally, her development was 'age-appropriate' and no more. He could, he said, envisage her having a 'very tough time of it socially' at a secondary school and was worried about her welfare in such a situation."[3]

  1. In November 2003, the respondent's mother asked Ms Mary Allen, a senior guidance officer at the Ipswich District Office of the Department that the respondent be accelerated into year 8 at the Rosewood State High School for the school year 2004. The respondent's mother's request was not granted, but, in December 2003, the Department suggested that the Ipswich District Office would prepare an individual education plan for the respondent while she remained in primary school or that the respondent return to the School of Distance Education (where she had been educated in part of 2000 and during 2001, 2002 and 2003 until 19 August 2003 when she was enrolled at Mutdapilly State School) and the Ipswich District Office would negotiate with the school to provide a curriculum for her.[4]
  1. The respondent rejected these options. Further negotiations ensued with officers of the Department. In these negotiations, the respondent's mother was assisted by Ms Judith Hewton, the then President of the Queensland Association for Gifted and Talented Children Inc. Mr Mark Campling, on behalf of the Department, proposed to the respondent that she take part in the "Personalised Knowledge Pursuit" program at the Rosewood State High School for six periods a week and attend the Rosewood State School for the remainder of the week where a program appropriate to the respondent could be developed.[5]
  1. The respondent rejected this further proposal. She was enrolled in year 8 at the Brisbane Adventist College at Wishart.[6]
  1. The learned primary judge made the following finding:

"After the appellant’s first semester of seventeen weeks at the Brisbane Adventist College, the College provided an academic report dated June 2004 showing that the appellant had been assessed as attaining the following grades: A in computer skills; A- in religious studies, mathematics, and science; B+ in studies of society and the environment and music; B in English, industrial techniques, and health and physical education; and B- in art. The report records that the appellant had been absent for only one day, and had not missed any teaching periods. Her participation and co-operation in class sport were very good and her skill was satisfactory, it recorded. The Department’s response to the request for unconditional acceleration remained, however, unaltered."[7]

  1. After June 2004, correspondence ensued between the respondent's mother and officers of the Department. It is sufficient at this point to say that the Department renewed its earlier offer to seek to customise a solution to meet the respondent's needs and abilities, but did not agree to unconditional acceleration of the respondent to year 8 at Rosewood State High School.[8]
  1. A letter dated 9 July 2004 from the Senior Policy Adviser to the Minister of the Department sought to mollify the respondent's mother who was at this stage intimating that the Department's attitude had caused the respondent and her family financial loss. This letter referred to the "Framework for Gifted Education" and reaffirmed the offer made in January 2004.[9]
  1. On 1 September 2004, the Minister for the Department wrote to the respondent's mother, inviting her to contact the Department to discuss the proposal which had been put forward and "other forms of acceleration".[10]
  1. On 22 September 2004, after the respondent had commenced proceedings in the Tribunal for unlawful discrimination, the Acting Director-General of the Department wrote to the respondent's mother. The Acting Director-General stated that he was satisfied that the Department had met its obligations and once again extended the invitation to the respondent's mother to reconsider the proposals put by the Department.
  1. At the hearing before the Tribunal, Ms Hewton gave evidence supporting the respondent's claim. Dr James Watters, Associate Professor of Education at the Queensland University of Technology, gave evidence that the Department's proposals were "appropriate and cautious educational strategies" in light of the concerns raised by Mr Griffin as to the respondent's social and emotional development.[11]
  1. The respondent's case of direct discrimination within the meaning of s 10 of the Act was that the Department treated her less favourably than it would have treated an older child with the same achievements.[12]  The respondent's case of indirect discrimination within the meaning of s 11 of the Act was that the Department required the respondent, as a candidate for admission to school year 8, to have attained a level of social and emotional maturity determined, in part, by her age.[13]

The Tribunal's decision

  1. The Tribunal rejected the respondent's case, both in respect of direct and indirect discrimination. As to direct discrimination, the Tribunal concluded:

"56.To be successful in proving direct discrimination in these circumstances, the complainant must demonstrate that she has been treated less favourably because of an attribute (in this case, the complainant’s age) than another person (real or hypothetical) without that attribute in the same or similar circumstances.

  1. Mr Horneman-Wren, on behalf of the respondents, submits that the appropriate consideration in this case would be the circumstances of a child seeking enrolment in a State high school having achieved all the Year 7 Key Learning Outcomes. It might be arguable that the complainant (as a nine year old) was treated differently to another 11 or 12 year old child who had achieved all of the Year 7 Key Learning Outcomes and was entitled to progress to Year 8 at a State high school.
  1. But the factual foundation upon which this exists, namely that the complainant had completed the Year 7 Key Learning Outcomes for a State school in Queensland, was not proved.  The complainant’s mother indicated that the complainant had completed these outcomes in the course of work that she had achieved at home, particularly by completing work that had been set for her older sister at another school.
  1. The evidence of Mr Griffin clearly demonstrates that this outcome had not been achieved during the course of the complainant’s schooling at the Mutdapilly State School. He specifically disagreed with the assertion that the complainant had achieved these goals. In the circumstances, I am not prepared to find that the complainant had achieved all Key Learning Outcomes for a Year 7 student within the Queensland State school system.
  1. In any case, given my findings on the major issues outlined above, I do not consider that the complainant was treated less favourably in these circumstances. The respondent gave consideration to the evidence available to it, made appropriate investigations and recommendations. It offered the complainant a reasonable program of acceleration that was consistent with the complainant’s best interest and current academic research. The complainant and her mother chose not to accept the PKP program as it was not considered by them to be the best option.
  1. In summary, I dismiss the complaint of direct discrimination."[14]
  1. It can be seen that the respondent's case of direct discrimination failed for a number of reasons, but principally because the Tribunal accepted the evidence of Mr Griffin in preference to the evidence of the respondent's mother in relation to the respondent's educational attainments. The respondent's attainments were simply not such that she could be said to have achieved "all the learning outcomes applicable to a Year 7 student". That was the effect of Mr Griffin's evidence upon which he had not been challenged. As the respondent's teacher, Mr Griffin was the person best placed to give a reliable and independent opinion on this issue. It was clearly open to the Tribunal to resolve the case on the basis that he accepted Mr Griffin's evidence on this crucial issue. That mode of resolution of the case before the Tribunal could not give rise to a right of appeal under s 217 of the Act. No question of law arises in this regard. The case was resolved by a finding of fact which was clearly open on the evidence.
  1. As to the respondent's case of indirect discrimination, the Tribunal concluded:

"62. In the complainant’s outline of argument filed prior to the hearing, the complainant also asserts indirect discrimination. Indirect discrimination requires the imposition of a term which (a) a person with the attribute does not, or is not able to comply with, and (b) with which a higher proportion of people without the attribute comply or are able to comply and (c) which is not reasonable.

  1. The essence of the case based upon indirect discrimination appears to be the imposition of a term which required candidates for Year 8 to have attained a requisite level of social and emotional maturity which might be determined, in part, by the age of the child.
  1. I agree with the submissions for the respondent that the complainant was not, necessarily, unable to comply with the term at the relevant time. To the contrary, the case for the complainant was that the Department was simply wrong in their assessment of her social and emotional maturity and that the complainant did possess the requisite social and emotional maturity. In other words, the complainant’s case is that she could comply with the term. This in itself disposes of any case of indirect discrimination.
  1. I also accept the respondent’s submission that, the imposition of any such term was entirely reasonable in the circumstances. The respondent must prove on the balance of probabilities that the term is reasonable. Determining whether a term is reasonable will involve consideration of circumstances from the point of view of the respondent and the complainant. In striking the balance between the various interests to be considered when imposing a requirement or condition in an activity or transaction, the interests of all persons concerned must be considered.
  1. I have had regard to all the relevant circumstances of this complaint, including the factors specified in s. 11(2)(a)-(c) of the Act. The possible complications for the school, the student and other students in accelerating a child beyond their level of social and emotional maturity are relevant aspects for consideration in the overall circumstances.
  1. In summary, the complaint of indirect discrimination is dismissed."[15]
  1. Once again, it can be seen that the Tribunal rejected the respondent's case on the basis of the Tribunal's view of the facts of the case. The respondent's case was that she had achieved the social and emotional maturity of a child in year 8. The Tribunal was correct to conclude that the respondent had not been required to comply with a term with which she was not able to comply: the respondent's own case was that she was indeed able to comply with this term. Accordingly, the case of indirect discrimination advanced by the respondent was bound to fail. In short, the respondent's only arguable case of discrimination was her case of direct discrimination, and that case failed because Mr Griffin's evidence of the respondent's educational attainments was preferred to the evidence of the respondent's mother.

The decision of the primary judge

  1. The right of appeal to the Supreme Court from the Tribunal provided by s 217 of the Act is confined to questions of law. The respondent had not, in the view of the learned primary judge, identified any error of law by the Tribunal in relation to events prior to June 2004.[16]  Insofar as the Tribunal was concerned with the Department's refusal of unconditional acceleration at the beginning of 2004, the learned primary judge upheld the decision of the Tribunal.  His Honour noted, however, that, at the hearing before the Tribunal, the respondent's mother complained, not only of discrimination said to have occurred at the beginning of 2004, but also of discrimination said to have occurred after the mid-2004 report of the Brisbane Adventist College.[17]
  1. The learned primary judge allowed the respondent to argue before him that the Department discriminated against the respondent by maintaining, after June 2004, the position it had earlier taken.[18]  His Honour was concerned that: "[by] the middle of 2004 there was further proof, according to the argument advanced on behalf of the [respondent], that she could be accelerated successfully without conditions to Year 8 in 2004."[19]  His Honour seems to have had in mind that there was an arguable case of an act of discrimination in mid-2004 by reason of a failure on the part of the Department to reconsider its earlier decision, and to make a place available to the respondent in the second semester of 2004.
  1. In this regard, his Honour said:

"The effect, if any, the appellant’s apparently successful completion of the first semester of Year 8 at the Brisbane Adventist College should have had on the Department’s response to her request for unconditional acceleration called for careful consideration and analysis. Although the member accepted that the Department’s decision in January 2004 was not discriminatory it does not follow that its response in the middle of the year was not discriminatory, if one takes into account the assessment of the appellant in the Brisbane Adventist College report.

     It follows from what I have explained so far that the appellant would be entitled to have her complaint remitted to the Tribunal for further consideration of the response of the Department after her successful completion of the first semester of 2004 at the Brisbane Adventist College to her request for unconditional acceleration to the Rosewood State High School. Under s 218(c) of the Anti-Discrimination Act, the Supreme Court, on the hearing of an appeal, may remit the matter to the Tribunal for further hearing or consideration or for rehearing. There was, however, another issue before the member, and also raised on this appeal, that could affect the outcome of this appeal."[20]

  1. The learned primary judge concluded that the Tribunal had erred in law in that it had failed to deal with the respondent's case of discrimination against her in mid-2004. This case was apparently thought to be an arguable one on the basis that the Department's continued refusal to accelerate the respondent in mid-2004 was unjustifiable having regard to the assessment of the respondent in the June 2004 report of the Brisbane Adventist College. On this basis, his Honour concluded that the respondent's complaint should be remitted to the Tribunal so that this aspect of her case could be determined by it.
  1. The learned primary judge accepted the submission on behalf of the appellant that, so far as the decision of January 2004 was concerned, the Department acted in conformity with s 12(1)(a) of the Education Act.[21]  His Honour said, however, that "the question whether that program [ie the program offered to the respondent in January 2004] was still in compliance with [s 12(1)(a)] is a question of fact yet to be determined".[22]  His Honour evidently considered that the successful completion of the first semester of year 8 at the Brisbane Adventist College was material to the determination of this question of fact.

The arguments on appeal

  1. The appellant's submission is that the learned primary judge's conclusion reflects a mistaken appreciation of the facts of the case. In particular, the appellant submits that the foundation for his Honour's decision adverse to the appellant was his Honour's evident belief that the June 2004 report of the Brisbane Adventist College was provided to officers of the Department after June 2004, and that their responses to the respondent's request were to be analysed in that light. The appellant's principal contention is that it was simply not the case that the Department was provided with a copy of the June 2004 report before the respondent commenced proceedings. The appellant also argued that s 106 of the Act, in combination with s 12(1)(a) of the Education Act, meant that for the officers of the Department to take into account the respondent's age in deciding upon her request for unconditional acceleration could not be unlawfully discriminatory.
  1. The respondent's mother challenged the competence of this appeal on the basis that s 217 of the Act permits an appeal to the Supreme Court only on questions of law, and the error attributed to the learned primary judge by the appellant does not involve a question of law. This objection to the competence of the appeal is misconceived. The Act provides for an appeal to the Supreme Court from the Tribunal: it is silent in relation to appeals to this Court from decisions of the Trial Division. That is no doubt because that subject matter is dealt with by s 69 of the Supreme Court of Queensland Act 1991 (Qld) and the provisions of the Uniform Civil Procedure Rules 1999 (Qld) ("UCPR").  There is nothing in the Act which cuts down or confines the right of appeal from the Trial Division to this Court or to suggest that the appeal to this Court is other than a rehearing on the evidence before the judge of the Trial Division in accordance with r 765 of the UCPR.  Since the appeal to this Court is by way of rehearing, it is open to this Court to take cognisance of, and to correct, any error of fact or law on the part of the learned primary judge.
  1. At the hearing of the appeal, the respondent's mother contended that the respondent's complaint of unlawful discrimination – indeed, her only complaint – related to a decision made in September 2004. This seems quite disingenuous having regard to the undeniable fact that the principal focus of the respondent's claim was upon the refusal of full-time enrolment at Rosewood State High School in January 2004. By May 2004, the respondent's mother was already threatening the Department with a claim for monetary compensation for the unlawful discrimination which she alleged had occurred. And it is clear that the respondent never abandoned these allegations. Nevertheless, the respondent's mother argued that, in September 2004, the Department refused a request on behalf of the respondent to be enrolled at Rosewood State High School. The respondent's mother was unable to identify evidence that the request was put to the Department in those terms on behalf of the respondent. For the sake of argument, however, it may be accepted that there was, at that time, a decision by the Department not to reconsider its decision of January 2004. Even if this assumption is made in the respondent's favour, it does not follow that such a decision could be regarded as unlawfully discriminatory because of the Department's failure to act upon the terms of the June report of Brisbane Adventist College. That is because, on the evidence, at the time of the alleged acts of discrimination, the Department did not have the information contained in that report.
  1. The written submissions made on behalf of the respondent on the appeal did not contest the proposition that, as a matter of fact, the June 2004 report of the Brisbane Adventist College was not before the officers responsible for the post June 2004 dealings with the respondent. The respondent's written submissions did contend that the Department was in receipt of the report because it was passed onto the Department by the Anti-Discrimination Commission Queensland ("ADCQ"), but this plainly occurred after the occurrence of the acts of discrimination of which the respondent complained.
  1. In her submissions to this Court, the respondent's mother argued that the relevant act of discrimination was in the Minister's letter of 1 September 2004. At the hearing of the appeal, the respondent's mother sought to argue that she had in fact provided a copy of the report to the Department prior to that time. She was, however, unable to point to any evidence which might support that assertion.
  1. It should be noted here that the respondent's submissions on the appeal were not focussed upon the legal issues thrown up by the appeal. Those submissions seemed not to appreciate the difference between a decision said to be an act of unlawful discrimination, and the reiteration of the reasons for that decision or an attempt further to explain those reasons. The Minister's letter of 1 September 2004 is clearly in the second of these categories. The arguments put on behalf of the respondent fail to appreciate the difference between an alleged act of discrimination and an explanation for that conduct. Further, to the extent that the respondent's submissions invoked the International Covenant on Civil and Political Rights, her approach was misconceived. It is the Act which is the source of the grounds of the respondent's complaint and of the rights which the respondent's complaint seeks to vindicate in the proceedings brought on her behalf. It is with the operation of the provisions of the Act that this Court must be concerned.
  1. In my respectful opinion, it is clear that the learned primary judge reached his decision adverse to the appellant on the basis that this report, having been provided to the officers of the Department, was, at least arguably, sufficient to allay the Department's previously expressed concerns either as to the respondent's educational attainments or her social and emotional maturity. His Honour's decision in favour of the respondent was, in this regard, based on a mistake as to the facts of the case in that the Department's consideration of the respondent's desire to be unconditionally enrolled at Rosewood State High School was never informed by the June 2004 report of the Brisbane Adventist College.
  1. The Act proscribes, as unlawful discrimination, treatment of a person which has as its basis a relevant attribute. If a person treats another person less favourably on the basis of a relevant attribute, it does not matter that the first-mentioned person does not appreciate that the treatment is less favourable. Nor is the first-mentioned person's motive relevant. That having been said however, to the extent that unlawful discrimination is said to have occurred by reason of a decision to treat another person in a particular way, the decision must have been made for a proscribed reason. That this is so emerges from a consideration of the language of s 10(1) and s 11(1) and is confirmed by the reference to s 10(4) of the Act to "the reasons" why a person treats another less favourably.
  1. In this case, the reasons of the decision-makers charged with discrimination in that decision-making cannot be understood independently of the information before the decision-makers. That is because the discrimination with which the appellant's officers were charged subsists in the reasons underlying their decision, or decisions, towards the respondent's request for acceleration. Whether or not that response can be characterised as discriminatory depends on the reasons for that response or attitude. While it is true to say that it is immaterial whether or not the relevant officers of the Department intended to treat the respondent unfavourably, the question whether they discriminated against the respondent must be answered by reference to the information about the respondent's attainments, capacities and needs which were before them.
  1. It might well be argued that it is objectively unlikely that the respondent's achievements in her first semester at Brisbane Adventist College were sufficiently impressive to warrant a revision of the Department's earlier assessment of the respondent and an alteration of the Department's decision. As Dr Watters said in evidence, one might have expected a distinctly higher level of achievement from a truly gifted child. But, however the Department's officers might have responded to the June 2004 report had it been brought to their attention, the Department's response cannot be characterised as discriminatory by reference to the effect of information with which they had not been provided. His Honour erred in thinking that the appellant's officers response to the respondent's request for acceleration, in fact, included an arguably erroneous rejection of relevant information provided by the report. There was no other basis on which to think that a decision by the Department not to reconsider its earlier decision was unlawfully discriminatory. As a result, his Honour was in error in holding that there was an arguable case of discrimination post June 2004 with which the Tribunal had failed to deal.
  1. This error on the part of the learned primary judge seems to have occurred, in part, because of the shifts in focus of the respondent's complaint, and his Honour's endeavour to accommodate the respondent's mother's wish to range widely in airing her grievances against the Department. This desire was manifest generally in the respondent's arguments on the appeal to this Court, and, particularly, in her notice of appeal from the Tribunal to the Supreme Court. There the respondent sought an order that the decision of the Tribunal be set aside and:

"Matter reheard with a clear ruling as to what is said to be the acts of Discrimination:  The non-admittance to year 8, all acts including December 2003, January 2004, June 2004, September 2004 to even the Feb 2005 submission at disclosure Or just the December, January non-admittance to year 8." 

  1. While one may have sympathy with the difficulties which the respondent's mother may have had in formulating the respondent's claim, and, while the beneficial operation of the Act should not be trammelled with undue technicality, it is important that it be clearly understood that the role of the Supreme Court on an appeal under the Act is not that of a roving inquisitor under a duty to advise and report to complainants in relation to possible grounds of complaint. It is also important to bear in mind that, while it may be desirable to eschew undue formality and technicality in proceedings under the Act, the more informal the conduct of proceedings may be, the more important is the need to ensure that all parties have a precise understanding of just what is being alleged: natural justice requires no less. It is not, however, necessary to pursue this point further in this case. However the error in the judgment of the learned primary judge's decision may have occurred, it is clear that his Honour's conclusion against the appellant was reached on the basis of an error in his Honour's understanding of the factual basis of the Department's position after June 2004.
  1. At no stage in the Department's deliberations after June 2004 relating to the respondent's request for acceleration were those deliberations affected by knowledge of the report of Brisbane Adventist College. Whether or not the Department's view of the proper response to the respondent's request should have been altered by a consideration of the terms of that report, the Department's response could not be characterised as discriminatory when it had no knowledge of the information which may have affected that response so as to transform a non-discriminatory response to the respondent's request into a discriminatory one. The learned primary judge erred in thinking otherwise.
  1. It is, therefore, strictly unnecessary to deal with the appellant's argument that s 106 of the Act, in combination with s 12(1)(a), has the effect that the officers of the Department acted lawfully in taking the respondent's age into account in formulating the program offered to the complainant at the beginning of 2004. It may be said, however, that the learned primary judge was clearly correct in upholding the contention advanced on behalf of the appellant in that regard in relation to the Department's decisions at the beginning of 2004. It is, with respect, difficult to see how it could be held that the officers of the Department were not acting lawfully in taking the respondent's age into account in making a decision in mid-2004 not to revise the decision made earlier. In both cases, the officers of the Department were expressly authorised, and, indeed, obliged by s 12(1)(a) of the Education Act, to take the respondent's age into account in their decision making. They could not be guilty of unlawful discrimination by acting on a footing required by the Education Act. In my respectful opinion, to the extent that the learned primary judge seems to have thought otherwise, his Honour was in error.

Conclusion and orders

  1. The appeal should be allowed. The orders made by the primary judge should be set aside, and the decision of the Tribunal should be affirmed.
  1. LYONS J: Gracia Malaxetxebarria is a gifted and talented student who showed academic promise at a very young age.  When she was nine years old she asked to attend the local State High School as a fulltime student.  The Department of Education and the Arts (the “Department”) declined to offer immediate full time enrolment but offered an enrolment which involved attendance at the local High School for six periods per week and attendance for the other periods at the local Primary School.  The enrolment on this basis was for an initial trial period so that her readiness for High School as a nine year old could be evaluated.  Essentially this appeal relates to whether this offer of enrolment by the Department amounts to discrimination in the provision of education on the basis of age. 

History

The events prior to January 2004

  1. Gracia’s mother is the respondent in this appeal and she is acting as next friend on behalf of her daughter. All of the issues centre on a complaint by Gracia (the complainant) in relation to the provisions of education to her by the State Department of Education and the Arts. The complainant was born on 13 May 1994 and is one of four children. She commenced Year 1 at the local State School in January 1999 when she was four and did well. In the year 2000 she commenced Year 2 at a different State School but due to interaction between her mother and the school the complainant and her siblings were withdrawn from the school and placed in Distance Education during that year. The complainant was then schooled at home by Distance Education for the ensuing two years.
  1. On 19 August 2003 the complainant, at the age of nine years, was re-enrolled at the local State School and was placed in a Year 6/7 composite class. In November 2003 the complainant’s mother contacted the school and requested that the complainant be accelerated into Year 8 at the local State High School for 2004. This would have meant that she would have commenced school in Year 8 at nine years of age when most of her class mates would have been 12 years of age.
  1. The Department then gathered information to enable a decision to be made. A Guidance Officer conducted an assessment[23] of the complainant on 8 December 2003 and the summary of the report stated that her reasoning abilities on verbal tasks were generally superior and her non verbal reasoning abilities were significantly higher and in a very superior range.  The PIQ score of 147 meant that she was better than 99 per cent of her age peers with non verbal reasoning, and her VCI score of 123 meant that she was better than 94 per cent of her age peers with verbal reasoning.
  1. The complainant’s teacher in Grade 6/7 at the State School Mr Griffin gave an opinion in relation to the complainant in November 2003 and this opinion was set out in detail in his later witness statement.[24]  In that evidence he indicated that at the end of 2003 the complainant was in a class that was two years above that of her age peers who were at that time in Grade 4.  Mr Griffin considered that the work being done by the complainant was sufficiently challenging for her.  He advised that he could not make a decision as to her academic capabilities for the purpose of making a decision on acceleration as he did not have the expertise to assess gifted and talented students.  He did however express the view that the complainant was amongst the best two or three of his Year 6 students, nevertheless he indicated that he had seen little evidence of the complainant being able to interact effectively either with adults or the older children at the State School. 
  1. Mr Griffin had concerns about the complainant’s social maturity and ability to manage and develop socially and emotionally around children who were several years older than her. He said he had observed the complainant closely throughout her time at school and was concerned about her ability to make friendships amongst her classmates. He considered she was out of her depth conversationally and socially with Year 6 and 7 students in her class, and did not mix with them to any extent. He indicated “I could envisage her having a very tough time of it socially at secondary school and was worried about her welfare in such a situation.”[25]  In the final report for the year in December Mr Griffin indicated that academically the complainant would succeed whatever the educational setting, but that it was vital that she be allowed to “consolidate” in social terms.[26] 
  1. In an undated letter to the respondent in December 2003 the Executive Director of Schools in the District advised that whilst the complainant had been assessed as being in the gifted range it was considered that an appropriate educational program was one that “reflects the educational and social development needs” and that the best available option for the complainant was for the complainant to remain at the local State School or a Primary State School of her choice, and that an Individual Education Plan (IEP) be developed for her which would provide appropriate extension activities. This was rejected by the respondent in a letter dated 16 December 2003. In further correspondence dated 19 December 2003 the Executive Director indicated to the respondent that the plan involved attendance part-time at the local High School. The respondent however indicated that the complainant wished to be unconditionally enrolled at the local State High School in Year 8 in 2004.

The offer of enrolment in January 2004

  1. At a meeting held with the respondent on 21 January 2004 the Education Department representatives indicated that the best available option was the provision of a Personalised Knowledge Pursuit Program (“PKP Program”) and the idea was to enrol the complainant both at the State High School and the State School, and that the complainant attend the State High School to participate in the PKP Program. This PKP Program would take place over six periods each week. It was considered that this was the best option as opposed to the complainant’s full time attendance at the State High School as this would, amongst other things, provide an opportunity for the Department to gauge the complainant’s readiness for High School and allow some consideration of her situation to be gauged on a holistic basis.
  1. The respondent was not prepared to accept this proposal and she enrolled the complainant at a Brisbane College in first semester 2004. The complainant has attended at that school since that time and has performed well.

Events after January 2004

  1. There was some further communication between the respondent and the Department in 2004 in particular a letter from the respondent to the Director General dated 15 February 2004 asking for reasons why the complainant could not go to High School in 2004 and stating that the outcome she would like was:[27]

“Not to have to pay for her education.  If the Department of Education can not provide an environment in a high school because they are worried about the safety of younger students then they should be encouraging and sponsoring private school to do the job for them so everyone has their educational rights.”

  1. The Assistant Director General replied to this letter on 10 March 2004 indicating that the option offered by the Department in January 2004 “would act as a trial that could… lead to further opportunities to extend her participation in other secondary programs”.[28]  The letter also set out information about Government funding for private schools.  The Appeal Record Book does not disclose any correspondence from the respondent to the Department in 2004 in which the respondent makes a further request for the complainant’s enrolment in a High School in 2004.   
  1. There is clear evidence however that in the first six months of 2004 the respondent, by way of numerous emails and letters, advised the Prime Minister, the Premier, many State and Federal Parliamentarians, the Ombudsman and the Anti-Discrimination Commissioner of the position that the Department had taken. Indeed the volume of material has led to some confusion as to the precise emails which were forwarded to various recipients on various dates. As there is not a complete record of all of the information some reconstruction is required from the emails that are still in existence.
  1. In an email from the respondent to the Attorney-General dated 16 July 2004 there is reference to an earlier email dated 18 May 2004 to the Attorney-General about “…the possibility of taking the Department of Education to court for not carrying out their duty and compensation for the private school fees I have to pay for my gifted daughter and sister to go to school together…”.[29]  There is also an email of 21 June 2004 to the Attorney-General referring to the financial difficulties the family were experiencing. 
  1. On 9 July 2004 Murray Watt the Senior Policy Adviser to the Minister for Education wrote to the respondent in response to a letter that had been forwarded to the Minister for Education from the Attorney-General in relation to the respondent’s correspondence with the Department of Justice. There would then appear to be two emails from the respondent to the Department in July 2004 as a letter from the Minister for Education to the respondent dated 1 September 2004 refers to two emails from the respondent dated 13 July and 30 July 2004.
  1. This letter from the Minister dated 1 September 2004 states in part:[30]

“I reiterate that the practice of accelerating a gifted student, after comprehensive assessment of the student’s readiness, has occurred in Queensland schools for some time.

In June 2004, you were invited again to consider enrolling Gracia at Rosewood State School, and attend Rosewood State High School for six periods per week to participate in the school’s extension program.

Consideration of Gracia’s social-emotional maturity as a 9 year old in a secondary setting and her relationships with her peers is of great importance.  It is one of many factors that should be considered when analysing the appropriateness of acceleration.  We know that gifted students sometimes have difficulty being accepted by their classmates and the absence of close peer relationships should not be confused with social immaturity.

You are invited to contact Mr Mike Ludwig, Executive Director (Schools), Ipswich District… to discuss the above proposal and other forms of acceleration.”

  1. This letter and the subsequent letter dated 22 September 2004 made it clear that the Department’s original proposal was still open on the same terms.

The Complaint to the Anti-Discrimination Commission

  1. An undated complaint was received by the Anti-Discrimination Commission on 13 September 2004. The respondent lodged the complaint on behalf of her daughter alleging discrimination on the part of the Department of Education in the provision of education on the basis of age. The complainant claimed $500,000 compensation for the costs associated with educating all the children in the family, the additional travel and other associated expenses. The Department denied the claim asserting that it had dealt with the complainant without discrimination either direct or indirect.

What Constitutes Discrimination?

  1. Section 7 of the Anti-Discrimination Act 1991 (Qld) (the “Act”) prohibits discrimination on the basis of an attribute.  Age is specifically included as an attribute.  Section 8 then sets out the meaning of discrimination on the basis of an attribute as follows:

“8 Meaning of discrimination on the basis of an attribute

Discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of—

(a) a characteristic that a person with any of the attributes generally has; or

(b) a characteristic that is often imputed to a person with any of the attributes; or

(c) an attribute that a person is presumed to have, or to have had at any time, by the person discriminating; or

(d) an attribute that a person had, even if the person did not have it at the time of the discrimination.”

  1. Section 9 of the Act prohibits direct and indirect discrimination and ss 10 and 11 set out the meaning of direct and indirect discrimination as follows:

“10Meaning of direct discrimination

(1)Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.

(2) It is not necessary that the person who discriminates considers the treatment is less favourable.

(3) The person’s motive for discriminating is irrelevant.

(4) If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.

(5) In determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant.

11Meaning of indirect discrimination

(1)Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term--

(a)with which a person with an attribute does not or is not able to comply; and

(b)with which a higher proportion of people without the attribute comply or are able to comply; and

(c)that is not reasonable.”

(2) Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example—

(a) the consequences of failure to comply with the term; and

(b) the cost of alternative terms; and

(c) the financial circumstances of the person who imposes, or proposes to impose, the term.

(3)It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.

(4) In this section—

term includes condition, requirement or practice, whether or not written.”

  1. Section 37 of the Anti-Discrimination Act 1991 provides that an educational authority must not discriminate in the education area if a prohibition in s 38 or s 39 applies.
  1. Section 38 provides that an educational authority must not discriminate in failing to accept a person’s application for admission as a student, or in a way in which a person’s application is processed, or in the arrangements made for, or the criteria used in deciding who should be offered admission as a student, or in the terms on which a person is admitted as a student. In addition, s 39 provides that an educational authority must not discriminate by treating a student unfavourably in any way in connection with a student’s training or instruction. Subdivision 2 of Division 3 of Part 4 of the Act then provides for a series of exemptions.
  1. Section 43 provides that an educational authority may select students for an education program on the basis of an admission scheme that has a minimum qualifying age.

The Decision of the Anti-Discrimination Tribunal

  1. After the unsuccessful conclusion of the conciliation processes in the Anti-Discrimination Commission the matter was referred to the Anti-Discrimination Tribunal (the “Tribunal”). The matter was heard in the Tribunal on 27, 28 and 29 July 2005 and a decision was handed down on 18 April 2006 dismissing the complaint.
  1. The member in his decision set out the history of the matter and the evidence before the Tribunal including the evidence of expert witnesses. In particular he set out the evidence of Professor Watters from the University of Queensland who had conducted research in relation to the education of gifted children. This evidence was that in light of concerns raised by the complainant’s teacher as to her social and emotional maturity, the proposal to develop a specific program for the complainant at the Primary School together with partial acceleration into the High School using the PKP Program was a more suitable program.
  1. The member also referred to the fact that the Department did not have an extensive dossier of information on the complainant given she had been home schooled extensively and had only attended the school for three months prior to the request for enrolment into high school.
  1. The member held that to be successful in proving direct discrimination, the complainant had to demonstrate that the complainant had been treated less favourably because of an attribute, in this case her age, than another person without that attribute in the same or similar circumstances. Essentially the argument would have to be that the complainant had achieved all of the Year 7 key learning outcomes and therefore as a nine year old she was treated differently to another child who was 11 or 12 who had achieved all of the Year 7 key learning outcomes and was entitled to progress to Year 8 at a State High School.
  1. The member dismissed the complaint of direct discrimination on the basis that the factual matter that the complainant had achieved all key learning outcomes for a Grade 7 student had not been established. Furthermore the member was not satisfied that the complainant was treated less favourably in those circumstances. He considered that the Department of Education had given consideration to the evidence available to it, had made appropriate investigations and recommendations, and had offered the complainant a reasonable program of acceleration that was consistent with the complainant’s best interests and current academic research.
  1. The member held that the complainant and her mother chose not to accept the PKP Program as it was not considered by them to be the best option. The member however was not satisfied that direct discrimination had been established.
  1. A further argument advanced by the complainant was that there had been indirect discrimination. The member held that indirect discrimination requires the imposition of a term which:
  1. a person with the attribute does not or is not able to comply with; and
  1. with which a higher proportion of people without the attribute comply or are able to comply; and
  1. which is not reasonable.
  1. The member stated that the essence of the case based on indirect discrimination appeared to be the imposition of a term which required candidates for Year 8 to have attained a requisite level of social and emotional maturity which might be determined by the age of the child. In this regard the member agreed with the submissions from the Department of Education that the complainant was not necessarily unable to comply with the term at the relevant time and to the contrary, the case for the complainant was that the Department was simply wrong in their assessment of her social and emotional maturity and the complainant did possess the requisite social and emotional maturity. In other words the complainant’s case was that she could comply with the term. The member considered that this in itself disposed of any case of indirect discrimination.
  1. In any event the member accepted the Department’s submission that the imposition of any such term was entirely reasonable in the circumstances.
  1. In relation to the exemptions under the Act the member considered that the Department did not rely on the exemption in s 43 of the Act as there was no minimum qualifying age for students to attend High School. Furthermore given his findings that there had been no direct or indirect discrimination the member found it unnecessary to consider the exemption in s 106(1)(a) of the Act.

The Appeal to the Supreme Court

  1. The complainant (appellant) appealed the decision of the Tribunal and the matter was heard in the Supreme Court on 18 July 2006. On 4 October 2006 the learned primary judge delivered his reasons in relation to the appeal and ordered that the orders made on 18 April 2006 by the Anti-Discrimination Tribunal be quashed and that the appellant’s complaint was to be remitted to the Tribunal for further hearing and consideration of that part of the complaint that concerned events in and after June 2004.
  1. In relation to the case of direct discrimination his Honour held that the appellant’s case was that the Department treated her less favourably than it would have treated an older child with the same achievements. His Honour considered that:[31]

“The appellant’s mother contended that the discrimination complained of was not confined to that alleged to have taken place at the beginning of 2004 but included that shown in the letter of 1 September 2004 from the Minister for Education and Minister for the Arts and later in the letter from Mr Farmer…the continued refusal of the Department to enrol the appellant in the State high school after January 2004 until the Minister’s letter was to be treated as part of the complaint to be considered by the member.”

  1. His Honour referred to the concession by counsel for the Department that this was essentially the “continued refusal to enrol”. His Honour held that in his reasons the member, in dealing with the complaint, focused on the decision of January 2004 and did not refer to events subsequent to this initial refusal to enrol.
  1. His Honour held that on the appeal the appellant’s mother sought to make a number of submissions in relation to a review on the merits of the member’s decision concerning the events of January 2004. His Honour held that since an appeal to the Supreme Court is permitted on a question of law only, and the appellant sought to rely on alleged errors of fact rather than law by the member in his decision, then the appellant must fail in relation to that part of the argument advanced on her behalf in relation to the events of January 2004. His Honour held that it was clearly open on the evidence before the member to reach the conclusions he did.
  1. His Honour held that there was another aspect of the appellant’s complaint before the member. It concerned the response of the Department to the appellant’s request for unconditional acceleration after she completed the first half of 2004 in Year 8 at the Brisbane College. The appellant’s case was that a report of the College showed that she should have been accelerated directly into the State High School at that point.
  1. His Honour held that the basis of the appeal to the Supreme Court by the complainant’s mother was amongst other things that the member confined his decision to the complaint concerning the Department’s decision of January 2004 when in fact there were other acts of discrimination namely the letters from Departmental officers on 9 July 2004 and 22 September 2004 and the Minister on 1 September 2004.
  1. His Honour referred to the fact that the response of the Department in January 2004 came before the appellant had demonstrated her ability to undertake Year 8 school work. His Honour considered that by the middle of 2004 there was further proof, according to the argument advanced on behalf of the complainant, that she could be accelerated successfully without conditions to Year 8 in 2004.
  1. His Honour held, relying on Steed v The Minister for Immigration and Ethnic Affairs[32] that an error of law may be committed by a Tribunal if a central issue before it is ignored or there is a failure to make findings on material questions of fact.  His Honour essentially held that there was an error of law by the member in failing to consider an issue which was before him.
  1. His Honour held that although there was a decision by the member to accept that the Department’s decision in January 2004 was not discriminatory, it did not follow that its response in the middle of the year was not discriminatory:[33]

“The effect, if any, the appellant’s apparently successful completion of the first semester of Year 8 at the Brisbane Adventist College should have had on the Department’s response to her request for unconditional acceleration called for careful consideration and analysis. Although the member accepted that the Department’s decision in January 2004 was not discriminatory it does not follow that its response in the middle of the year was not discriminatory, if one takes into account the assessment of the appellant in the Brisbane Adventist College report.

It follows from what I have explained so far that the appellant would be entitled to have her complaint remitted to the Tribunal for further consideration of the response of the Department after her successful completion of the first semester of 2004 at the Brisbane Adventist College to her request for unconditional acceleration to the Rosewood State High School. Under s. 218(c) of the Anti-Discrimination Act, the Supreme Court, on the hearing of an appeal, may remit the matter to the Tribunal for further hearing or consideration or for rehearing. There was, however, another issue before the member, and also raised on this appeal, that could affect the outcome of this appeal.”

  1. His Honour also referred to the fact that as the member considered that there had been no direct or indirect discrimination in contravention of the Act it was unnecessary for the member to decide whether the exemption in s 106(1) of the Anti-Discrimination Act applied to the appellant’s complaint due to the fact that the Department was acting in accordance with s 14(1) of the Education (General Provisions) Act 1989 (Qld).
  1. Section 106 of the Anti-Discrimination Act sets out the following:

“106Acts done in compliance with legislation etc.

(1)A person may do an act that is necessary to comply with, or is specifically authorised by -

  1. an existing provision of another Act;

...

(2)In this section -

existing provision means a provision in existence at the commencement of this section.”

  1. His Honour held that as s 106 commenced on 30 June 1992, the then s 12 of the Education (General Provisions) Act (which was later renumbered as s 14) was an existing provision.  The section provides as follows:

“12Provision of State education

(1)For each student attending a State instructional institution, there must be provided an educational program approved by the Minister that -

(a)has regard to -

(i)the age, ability, aptitude and development of the student; and

(ii)whether enrolment in the educational program is compulsory or non-compulsory; and

(b)is an integral element within the total range of educational services offered with the prior approval of the Minister; and

(c)takes account, and promotes continuity, of the student’s learning experiences; and

(d)recognises, and takes account of, the nature of knowledge.

(2)The duration of the educational program must be based on the basic allocation for a student.”

  1. On the basis of this existing provision it was therefore argued before his Honour that what the officers of the Department did in making the offer of enrolment on the terms they did was in compliance with their obligations and therefore came within the exemption in s 106 of the Act.  It was argued that acting as delegates of the Minister they were required to comply with s 14(1)(a) of the Education (General Provisions) Act when approached by the appellant and her mother for enrolment at the State School.  That High School, being a State education institution established pursuant to the Education (General Provisions) Act, then gave consideration to the provision of an educational program having regard to the age, ability, aptitude and development of the appellant.  His Honour referred to the fact that counsel for the Department:[34]

“…argued that the identification and development for the ultimate provision of an education program which may discriminate on the basis of a student’s age and development is specifically authorised by that Act.  What was done was what was required by the Act to be done in order to comply with s. 14(1)(a).  Had the Minister through her delegates not considered and devised, for ultimate provision, an educational program which had regard to the student’s age and development there would have been a failure to comply with that provision.  Mr Horneman-Wren argued that to have regard to the social and emotional maturity of the appellant was to have regard to her ‘development’ within the meaning of s. 14(1)(a).”

  1. His Honour was satisfied that on the evidence that argument was correct insofar as it applied at the decision of January 2004, his Honour held therefore that even if discrimination had been established, the respondent could have relied upon the exemption provided for in s 106 because the Anti-Discrimination Act provides it is not unlawful to discriminate with respect to a matter that is otherwise prohibited if an exemption applies.  His Honour was satisfied that s 106 of Anti-Discrimination Act would apply to exempt the respondent from responsibility for discrimination towards a program offered to the appellant in January 2004 which was provided in compliance with s 14(1) of the Education (General Provisions) Act. 
  1. However his Honour held that the question whether the program was still in compliance with the latter provision in and after June 2004 was a question of fact yet to be determined. This failure would seem to be the error of law which his Honour was referring to on the part of the member. His Honour held that by June 2004 the appellant had reached her tenth birthday and her aptitude and development had been demonstrated to be such as to result in her successfully completing the first semester of Year 8 at the Brisbane Adventist College. His Honour therefore concluded that the appeal should be allowed, the orders made by the Tribunal quashed and the appellant’s complaint remitted to the Tribunal for further hearing and consideration of that part of the complaint that concerned events in and after June 2004.
  1. On 31 October 2006 the Department appealed the decision on the following grounds:

“(a)That His Honour proceeded on an incorrect understanding of the evidence, that being that the first semester school report of the Brisbane Adventist College dated June 2004 was before the relevant officers of the Department in further considering the respondent’s application for enrolment from in or about June 2004;

(b)That proceeding on that incorrect understanding of the evidence His Honour erred in determining that Anti-Discrimination Tribunal Queensland ought to have given careful consideration and analysis to the effect, if any, that the respondent’s apparently successful completion of the first semester of year 8 at the Brisbane Adventist College should have had on the Department’s response to her request for unconditional acceleration;

(c)that His Honour, having erred in the manner set out at Grounds (a) and (b), erred in making the orders:

i.allowing the appeal;

ii.quashing the orders of the Anti-Discrimination Tribunal Queensland; and

iii.remitting to the Anti-Discrimination Tribunal Queensland for further hearing and consideration that part of the complaint concerning events in and after June 2004.”

  1. For the appellant to succeed before the Court on the appeal, the appellant must establish that there was error on the part of the learned primary judge in his determination of the appeal from the Tribunal. The High Court in Craig v The State of South Australia[35] discussed what constitutes an error of law and stated:[36]

“In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court.”

  1. Where the appeal is by way of rehearing the powers of the Appellate Court are exercisable where the appellant can demonstrate that having regard to all of the evidence before the Appellate Court, the order that is the subject of the appeal is the result of some legal, factual, or discretionary error. Where error is shown it is for the Appellate Court to give effect to its own conclusion.
  1. In relation to the appeal against the decision of the Tribunal in relation to the initial non enrolment in January 2004 his Honour entirely ruled against the appeal. His Honour found that the decision of the Tribunal in respect of those matters was entirely open to it and that the appeal was one of seeking a review of the Tribunal’s decision on the factual merits rather than a question of law. Furthermore, his Honour held that even in respect to the events of January 2004 it was not discriminatory by operation of the exemption provided under s 106 of the Act.
  1. However by his judgment his Honour allowed the appeal of the complainant against the decision of the Tribunal on one basis only, that is that there was an error of law in that the Tribunal failed to consider that part of the complainant’s complaint related to matters in or about mid 2004 and her continued non enrolment in the State High School as opposed to the decision initially to refuse enrolment which was made in January 2004.
  1. The appellants in this appeal submit that central to his Honour’s reasons was a misunderstanding of the evidence before the Tribunal in that his Honour appears to have understood that a report of the private secondary school which the complainant attended in 2004 was before the Department of Education at a time it gave further consideration to the complainant’s application for unqualified enrolment in a State High School in or about the middle of 2004.
  1. It is clear that his Honour’s reasons in particular referred to letters sent to the respondent dated 9 July 2004 from Murray Watt, Advisor to the Minister, one dated 1 September 2004 from the Minister for Education and Minister for Arts and a further 22 September 2004 letter from the Acting Director General of Education. These letters were referred to on the basis that they evidenced that the Department’s attitude to the application for enrolment remained unchanged throughout the period. Whilst his Honour did refer to a letter from Mr Farmer this can be ignored as it in fact relates to a letter from a Federal Member and does not relate to the Department’s response.
  1. In his reasons his Honour said[37] that by the middle of 2004 there was further proof, that the complainant could be accelerated successfully without conditions in Year 8 in 2004 and his Honour also stated that:[38]

“The effect, if any, the appellant’s apparently successful completion of the first semester of Year 8 at the Brisbane Adventist College should have had on the Department’s response to her request for unconditional acceleration called for careful consideration and analysis.” (emphasis added).

  1. As previously set out the appellant in this appeal points out that the reasoning of his Honour proceeds on the basis that the academic report for June 2004 referred to, which was exhibit 70A to the mother’s complaint, was a document which was before, or the contents of which were known by, the Department when it provided the letters of 1 September 2004 and 22 September 2004 in further considering the complainant’s application for enrolment in or about the middle of 2004.
  1. Due no doubt to the voluminous and somewhat chaotic material presented to his Honour there are two facts which his Honour relied upon which have not in fact been able to be substantiated on appeal.
  1. The first is that there is no evidence of a further request for enrolment by the respondent in mid 2004 which was described by his Honour as “her request for unconditional acceleration”.  Whilst there is correspondence from the respondent about her unhappiness with the system and indications as to the cost to the family there is simply no evidence which the respondent could point to on the appeal which indicated there had been a further request for enrolment in mid 2004. 
  1. It is clear that by 18 May 2004 the attitude of the respondent was geared towards compensation and not re-enrolment. Whilst there is evidence of the Department’s continued restatement in June 2004 of the original offer of enrolment there is simply no evidence of a fresh request.
  1. Secondly there is no evidence of information being provided to the Department about the complainant’s “successful completion of the first semester Year 8”.  This is no doubt related to the fact that as no fresh request was made no further information was provided. 
  1. The present material indicates that the report of June 2004, which his Honour relied upon, was not in fact before the Department when the further letters were sent from the Department in July and September 2004. This conclusion is supported by the following factors:
  1. the respondent’s statement before the ADTQ did not expressly state that the report had been provided to the Department;
  1. the report only appeared as a part of the extra exhibits included by hand written addition to the statement on page 38;
  1. the letter from the Acting Director General on 22 September 2004 which is stated to be a response in relation to “outstanding issues” only refers to the January 2004 request and does not refer to a further request or further information being provided to the Department;
  1. the formal response from the Department dated 20 October 2004, to advice from the Anti-Discrimination Commission that a complaint had been lodged, which summarised the position of the Department only refers to the events up to January 2004 and does not refer to a further request or further information being provided. 
  1. It is also clear that whilst there is evidence that the respondent asserts via email to many people that her daughter was doing well and that there was a reference to an interim report, there is no evidence that the actual report or even any detail of the report was provided to the Minister for Education or anyone within the Department.
  1. In an email dated 18 May 2004 the respondent stated that the complainant had well and truly covered all the subjects of primary schooling and reference was also made in that email to evidence which the respondent had from other assessments, however no detail of the assessments were provided. Furthermore a report dated June 2004 simply could not have been provided under cover of the email of 18 May 2004.
  1. The first mention of the June half year report (to be distinguished from the interim report) appears to have been in an email of 13 July 2004 to Jan Hatton who was described in the respondent’s statement as the Senior Information Officer for the Department. In that email the complainant’s mother said that the complainant had flourished in every area as an interim report and half yearly report would give evidence to. Once again there is no evidence that any report was in fact provided to the Department.
  1. It is clear from his Honour’s reasoning that the evidence of the complainant’s successful completion of first term year 8 at the new school and the June report of the School played a key part in his decision. Accordingly, having proceeded on an erroneous understanding as to the June report being before the Department his Honour erred.
  1. Accordingly there was no failure by the member to make findings on essential issues or to ignore a central issue. His Honour erred in his conclusion that the complainant would therefore be entitled to have the complaint remitted back to the Tribunal for further consideration of the response of the Department after her successful completion of the first Semester of 2004.
  1. Whilst the provisions of s 106 of the Act do not actually need to be referred to in the circumstances of this case his Honour was clearly correct when he indicated that the exemption referred to in that section would indeed apply to the decision by the Department to make the offer that it did on 21 January 2004.  It is clear that the Departmental officers would be required to have express regard to the complainant’s age as well as her aptitude, ability and development in order to fulfil the requirements of s 12(1)(a) of the Education (General Provisions) Act in coming to a decision about the complainant’s education.
  1. Accordingly the appropriate orders are:
  1. that the appeal should be allowed;
  1. the orders dated 4 October 2006 be set aside;
  1. the decision of the Tribunal dated 18 April 2006 be affirmed.

Footnotes

[1] Section 6(1) of the Act.

[2] Malaxetxebarria v State of Queensland [2006] QSC 286 at [5].

[3] Malaxetxebarria v State of Queensland [2006] QSC 286 at [6].

[4] Malaxetxebarria v State of Queensland [2006] QSC 286 at [7].

[5] Malaxetxebarria v State of Queensland [2006] QSC 286 at [8].

[6] Malaxetxebarria v State of Queensland [2006] QSC 286 at [9].

[7] Malaxetxebarria v State of Queensland [2006] QSC 286 at [11].

[8] Malaxetxebarria v State of Queensland [2006] QSC 286 at [12] – [15].

[9] Malaxetxebarria v State of Queensland [2006] QSC 286 at [12].

[10] Malaxetxebarria v State of Queensland [2006] QSC 286 at [13].

[11] Malaxetxebarria v State of Queensland [2006] QSC 286 at [16].

[12] Malaxetxebarria v State of Queensland [2006] QSC 286 at [18].

[13] Malaxetxebarria v State of Queensland [2006] QSC 286 at [19].

[14] Malaxetxebarria v State of Queensland [2006] QSC 286 at [18].

[15] Malaxetxebarria v State of Queensland [2006] QSC 286 at [19].

[16] Malaxetxebarria v State of Queensland [2006] QSC 286 at [22].

[17] Malaxetxebarria v State of Queensland [2006] QSC 286 at [20].

[18] Malaxetxebarria v State of Queensland [2006] QSC 286 at [22] – [23].

[19] Malaxetxebarria v State of Queensland [2006] QSC 286 at [24].

[20] Malaxetxebarria v State of Queensland [2006] QSC 286 at [26] – [27].

[21] Malaxetxebarria v State of Queensland [2006] QSC 286 at [30] – [31].

[22] Malaxetxebarria v State of Queensland [2006] QSC 286 at [32].

[23] Witness Statement of Philip Oliver Gosschalk, Appeal Record Book p807.

[24] Witness Statement of Clive Joseph John Griffin, Appeal Record Book p776.

[25] Witness Statement of Clive Joseph John Griffin, Appeal Record Book p778.

[26] Witness Statement of Clive Joseph John Griffin, Appeal Record Book p779.

[27] Appeal Record Book p502.

[28] Appeal Record Book  p506.

[29] Appeal Record Book p518.

[30] Appeal Record Book p537.

[31] Malaxetxebarria v State of Queensland [2006] QSC 286 at [20].

[32] (1981) 37 ALR  620.

[33] Malaxetxebarria v State of Queensland [2006] QSC 286 at [26] – [27].

[34]Malaxetxebarria v State of Queensland [2006] QSC 286 at [30].

[35] (1995) 184 CLR 163.

[36] (1995) 184 CLR 163 at 179-180.

[37] Malaxetxebarria v State of Queensland [2006] QSC 186 at [24].

[38] Malaxetxebarria v State of Queensland [2006] QSC 186 at [26].

Close

Editorial Notes

  • Published Case Name:

    Malaxetxebarria v State of Queensland

  • Shortened Case Name:

    Malaxetxebarria v State of Queensland

  • MNC:

    [2007] QCA 132

  • Court:

    QCA

  • Judge(s):

    Williams JA, Keane JA, Lyons J

  • Date:

    20 Apr 2007

  • White Star Case:

    Yes

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2006] QSC 28604 Oct 2006Appeal against Anti-Discrimination Tribunal decision dismissing a claim for discrimination on the basis of age; gifted child sought to be accelerated through schooling years which was refused by the Department; the appellant would be entitled to have her complaint remitted to the Tribunal for further consideration of the response of the Department after her successful completion of the first semester of 2004: Helman J.
Appeal Determined (QCA)[2007] QCA 13220 Apr 2007Appeal allowed setting aside decision of Helman J and affirming decision of the Tribunal rejecting the discrimination complaint; the primary judge had erred by not focusing on the “decision” that had been challenged in the Tribunal, namely the decision made by the Department of Education of Queensland in January 2004 and made on the evidence then before the Department: Williams and Keane JJA and Lyons J.
Special Leave Refused (HCA)[2008] HCATrans 33830 Sep 2008Special leave refused; no reasonable prospects of success, were special leave granted: Kirby, Heydon and Kiefel JJ.

Appeal Status

Appeal Determined - Special Leave Refused (HCA)

Cases Cited

Case NameFull CitationFrequency
Abbott v Howden [2006] QSC 186
2 citations
Jump To
Cite 1 - [2006] QSC 186
Cite 2 - [2006] QSC 186
Craig v South Australia (1995) 184 CLR 163
3 citations
Jump To
Cite 1 - (1995) 184 CLR 163
Cite 2 - (1995) 184 CLR 163
Cite 3 - (1995) 184 CLR 163
Malaxetxebarria v State of Queensland [2006] QSC 286
24 citations
Jump To
Cite 1 - [2006] QSC 286
Cite 2 - [2006] QSC 286
Cite 3 - [2006] QSC 286
Cite 4 - [2006] QSC 286
Cite 5 - [2006] QSC 286
Cite 6 - [2006] QSC 286
Cite 7 - [2006] QSC 286
Cite 8 - [2006] QSC 286
Cite 9 - [2006] QSC 286
Cite 10 - [2006] QSC 286
Cite 11 - [2006] QSC 286
Cite 12 - [2006] QSC 286
Cite 13 - [2006] QSC 286
Cite 14 - [2006] QSC 286
Cite 15 - [2006] QSC 286
Cite 16 - [2006] QSC 286
Cite 17 - [2006] QSC 286
Cite 18 - [2006] QSC 286
Cite 19 - [2006] QSC 286
Cite 20 - [2006] QSC 286
Cite 21 - [2006] QSC 286
Cite 22 - [2006] QSC 286
Cite 23 - [2006] QSC 286
Cite 24 - [2006] QSC 286
Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620
3 citations
Jump To
Cite 1 - (1981) 37 ALR 620
Cite 2 - (1981) 37 ALR 620
Cite 3 - (1981) 37 ALR 620

Cases Citing

Case NameFull CitationFrequency
Lidis v Top Dog Minders Pty Ltd [2011] QCAT 2321 citation
Owen v Menzies [2010] QCA 1372 citations
RDF v State of Queensland (Education Queensland) [2018] QCAT 2542 citations
1

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