BB v State of Queensland[2020] QCAT 496

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

What is this Application about?

1. [1]
   BB and AT love their bright son.
2. [2]
   Like all loving and caring parents, they want the best for him. Getting a good education and making friends are an important part of this. And they are doing all they can.
3. [3]
   But it has not always been easy. Their son has at times exhibited behavioural issues, including:

   1. (a)
      Low stress tolerance;^[1]
   2. (b)
      Intolerance of other children;^[2]
   3. (c)
      Difficulty coping with instructions;^[3]
   4. (d)
      Difficulty with monitoring and regulating his own emotions;^[4]
   5. (e)
      Inability to control his own temper;^[5] and
   6. (f)
      Frustration at being made to complete his school work.^[6]
4. [4]
   Many of these manifested during his brief enrolment as a student at a large Brisbane State School. His parents claim that the School’s treatment of their student son before and during his enrolment directly discriminated against him. 

Does the student have an attribute?

5. [5]
   The student has an impairment^[7] of Type 1 diabetes mellitus.^[8] He therefore has an attribute protected from discrimination.^[9]

In what relevant area were the Respondents prohibited from discriminating?

6. [6]
   Because the School is an “educational institution” providing training and instruction to the student and the State is an “educational authority” administering the School, the relevant area is education.^[10]
7. [7]
   The Respondents^[11] were therefore required to not discriminate in any variation of the terms of the student’s enrolment, by denying or limiting his access to any benefit from his enrolment, or by excluding him or treating him unfavourably in connection with his training or instruction.^[12]

Did the Respondents directly discriminate against the student?

8. [8]
   Direct discrimination^[13] requires the Tribunal to:

   1. (a)
      Identify the appropriate comparator;
   2. (b)
      Determine the circumstances that are the same or not materially different;
   3. (c)
      Evaluate whether the Respondents treated the applicant “less favourably” than the comparator and if so, whether it was “on the basis of” or because of the “attribute”;
   4. (d)
      Determine if the treatment was reasonable; and
   5. (e)
      Determine if the Respondents acted in bad faith.^[14]

Who is the comparator?

9. [9]
   The Applicant submitted the comparator is a student enrolled in Grade 4 who did not have an impairment.^[15] Conversely, the Respondents submitted it is a student without the impairment who behaves in a violent, aggressive, disruptive or non-compliant manner.^[16] 
10. [10]
    In Tafao,^[17] Member Fitzpatrick extracted and reconciled the relevant principles from the two leading authorities of Woodforth^[18] and Purvis:^[19]

The Court of Appeal postulates that s 10 of the [Anti-Discrimination Act 1991 (Qld) (‘the ADA’)]  requires the comparison to be made on the hypothesis that the treatment of the person without the impairment would be “in circumstances that are the same or not materially different” from those that constituted the context for the treatment of the impaired person. The Court of Appeal found to that extent, s 10 of the Act is no different to s 5(1) of the Disability Discrimination Act 1992 (Qld) (‘the DDA’) considered in Purvis.

Beyond that likeness the Court of Appeal said there are differences between the two statutes. The DDA contained no equivalent of s 8 of the ADA, the effect of which, in combination with s 10 of the Act, is to proscribe discrimination on the basis of a ‘characteristic’.

The Court of Appeal found that it was a wrong application of s 10 to treat a ‘characteristic’ as a common ‘circumstance’ as had been done in Purvis. In Purvis a student was prone to violence towards his teachers. That propensity was part of his disorder. The comparator was a student without the disorder but who acted violently. Violent behaviour was treated as a common circumstance.

The Court of Appeal seeks to distinguish Purvis because of:

1. (a)
   the different wording of the two Acts in question; and
2. (b)
   the treatment in Purvis being a response to the student’s behaviour, which is also an incident of his disability. That complication did not exist in Woodforth, where the relevant treatment was the response of police to complaint of criminal conduct.

Relevant to the last point, McMurdo JA said:

… the occurrences of violent behaviour… constituted the relevant circumstances in Purvis. They were occurrences which formed part of the factual context in which the student was treated. He was treated, by suspension and expulsion, in response to those occurrences. The required comparison was between the treatment of this student and the hypothetical treatment of another student. That hypothesis required the consideration of what would have been the treatment of another in response to occurrences of the same kind.

…

I conclude that if… the impugned treatment was given in response to an occurrence which encompasses a characteristic of an attribute, that characteristic may form part of the common circumstances. I consider that the views of McMurdo JA in Woodforth in relation to a characteristic of an attribute, not properly forming part of the common circumstances, is limited to circumstances such as those occurring in Woodforth where the impugned treatment was not given in response to an occurrence which encompasses a characteristic of an attribute.^[20]  

11. [11]
    Member Fitzpatrick’s reasoning reflects the other majority judgment given by Gleeson CJ in Purvis, cited by the Court of Appeal in Woodforth:

The circumstances that gave rise to the first respondent’s treatment, by way of suspension and expulsion, of the pupil, was his propensity to engage in serious acts of violence towards other pupils and members of the staff. In his case that propensity resulted from a disorder; but such a propensity could also exist in pupils without any disorder… The circumstances to which s 5 directs attention as the same circumstances would involve violent conduct on the part of another pupil who is not manifesting disturbed behaviour resulting from a disorder… If the person without the disability is simply a pupil who is never violent, then it is difficult to know what context is given to the requirement that the circumstances be the same.^[21]

12. [12]
    Thus, the Tribunal must identify any relevant characteristic of a protected attribute and make a finding on the occurrences forming part of the factual context.^[22]
13. [13]
    In  Woodforth, the Court of Appeal was able to distinguish Purvis on the basis of the behaviour being an incident of the disability.^[23] In this case, the attribute and its features are more similar to Purvis than Woodforth. The student is in a chronic hyperarousal state as a result of his unstable diabetes.^[24] He has poor executive functioning associated with his unstable diabetes.^[25] His diagnosis was encapsulated as:

I felt that it was inappropriate to diagnose an autism spectrum disorder when [the student] was able to demonstrate some age appropriate social skills and empathy when clam [sic] and with stable blood glucose levels. I also withheld a formal diagnosis of ADHD as I felt that he could demonstrate appropriate sustained attention, sequencing and planning and impulse control when clam [sic] and that his symptoms were strongly linked to his fluctuating blood glucose levels. This decision was also supported by his attentional score on the Child Behaviour Checklist (CBCL). I did feel that a diagnosis of anxiety did better represent the impact of his chronic hyperarousal on his limbic system and facilitate and [sic] understanding of [the student] as a child in a persistent state of fight-flight as a result of his unstable type 1 diabetes and was also consistent with his anxiety/depression score on the CBCL. His aggression score on the CBCL also could be explained by the ‘fight’ component on the ‘fight-flight’ response.^[26]   

14. [14]
    The Tribunal accepts that rapidly fluctuating blood levels can affect behaviour. However, the issue is to what extent were the behaviours attributable to the impairment? Some of the behavioural issues are associated with fluctuated blood sugar levels.^[27] However, there was no evidence that all the student’s behaviour was causally related to his impairment.
15. [15]
    Although the behaviours are characteristics linked with the attribute,^[28] they also form part of the factual context. They are relevant circumstances to which the School responded. They were not an infrequent occurrence and are an integral part of the comparator:

When dealing with discrimination by less favourable treatment, it is clear that the proper comparator is a student with the same behavioural characteristics, but without the disabilities, of the student in respect of whom such discrimination is alleged.

It is necessary to decide whether a student without [the] disability who engaged in the same behaviour would have been subjected to the same formal and informal suspensions. Even though [the] behaviour was a manifestation of the impairment of his thought processes or emotions, his behaviour forms part of the relevant circumstances and cannot be excluded from consideration. If it is decided that [the student] was treated less favourably than a student without [his] disability would have been treated, it will be necessary to decide whether that was because of [the] disability.^[29]

16. [16]
    The gravamen of the evidence is that the student suffered from a physiological disease that at times manifests in inappropriate behaviour. Like Purvis and unlike Woodforth, the student has been treated on the basis of behavioural issues forming part of the factual context. The required comparison must be with the hypothetical treatment of another student without the impairment and with behavioural issues.
17. [17]
    Alternatively, if the comparator is simply a student without the impairment, the relevant circumstances would include behavioural issues in any event.^[30]

What are the relevant circumstances?

18. [18]
    The comparison is made within the context of the relevant circumstances and includes all of the objective features surrounding the treatment of the person claiming to be discriminated against:^[31]

In the case of the person with the attribute, that is the set of circumstances in which that person has been treated or the circumstances in which it is proposed to treat that person. In the case of the person without the attribute, who is commonly called in this context “the comparator”, they are hypothetical circumstances which are assumed to be the same or not materially different from those in which the person with an attribute has been or will be treated.^[32]

19. [19]
    The circumstances of the treatment are the student’s behavioural history^[33] and previous intermittent experiences of attending school and social isolation together with his behavioural issues resulting in no fewer than 32 documented incidents^[34] at school over a period of approximately four weeks.^[35] They also include the School’s policies, agreements and management plans^[36] relating to the treatment^[37] and the safety, needs and interests of the student’s classmates, other students, staff and the wider school community.

Did the School treat the student less favourably than a student without the impairment who behaves inappropriately and if so, was it on the basis of his impairment?

20. [20]
    The School was attempting to integrate the student’s interests within the greater student body. Because of this, the Tribunal is not satisfied that the student was treated less favourably or that the treatment claimed to be less favourable was on the basis of his impairment.^[38] The behaviour and contextual circumstances provided the basis for the treatment.^[39]
21. [21]
    The weight of the evidence is that the School did not treat the student less favourably on the basis of his impairment, ^[40] but was managing his behaviour and providing special services and facilities to support his needs,^[41] motivated by the overarching need to provide a safe and working environment for all students and staff.^[42]
22. [22]
    The parents disagreed with the Respondents’ characterisation of the student’s behaviour, although they conceded it had been disruptive. However, the parents’ clear and natural love and care for their son means their evidence cannot be objective.^[43] This does not mean their evidence was not honest or genuine. Indeed, their evidence was forthright, earnest and sincere. However, it does mean that they may have imputed motives to the Respondents otherwise explainable by the inherent role of a Principal and Deputy Principal to act in the best interests of the school community as a whole.^[44] Moreover, the parents did not witness the incidents of disruptive behaviour at the School.
23. [23]
    Conversely, the Respondents and their witnesses delivered their evidence dispassionately and within a framework of professional concern for the student and school community as a whole. Their evidence was consistent with contemporaneous written records. It was also the most direct evidence of the student’s behaviour at school. The Tribunal accepts the mutually corroborative evidence of the Respondents with attached supporting documents.
24. [24]
    The Tribunal will address the specific contentions seriatim.^[45]

Proposing to and materially limiting the hours the student could attend the School

25. [25]
    The student’s Transition Plan limited his initial hours of attendance before moving to normal attendance within six weeks.^[46] The School’s intention was to increase attendance to full-time. However, misbehaving students who attend full-time faced serious disciplinary consequences. Full-time attendance was not considered in the student’s best interests until the School developed a better understanding of him. The purpose of the Transition Plan was to address the behaviours without using suspension or exclusion.^[47]
26. [26]
    The parents considered that limiting hours itself was a trigger for the behaviour. However, it is not clear whether the student’s attendance for (only) one hour was a trigger for his behaviour or his level of tolerance. The evidence on possible catalysts for the behaviour was equivocal: longer hours may have increased anxiety.^[48]
27. [27]
    Whether or not the student’s behaviour would have improved with longer hours of attendance, the evidence is that his behaviour was at times inappropriate for the limited time he did attend. Full-time attendance did not necessarily set the student up for success but may have placed him at risk of engaging in behaviours that could have led to a school disciplinary absence.^[49]
28. [28]
    Moreover, the student’s non-compliance with instructions meant that he was medically unsafe. Because of concerns with the student’s stamina, a gradual entry was designed for the Respondents to gain an understanding of the student’s support needs and minimise the risk of his exposure to a potentially anxiety-provoking situation.^[50]
29. [29]
    Whether or not it was a legal requirement for the student to attend full-time^[51] and the student’s hours of attendance constituted a flexible arrangement requiring chief executive approval,^[52] was subject to the consultation process that had begun for his and others’ safety and wellbeing.
30. [30]
    Although the parents are themselves qualified teachers who were consulted^[53] and suggested a transition period,^[54] their evidence was that they did not agree to the actual reduced hours.^[55] However, parental approval was not a prerequisite to managing the student’s behaviour pending agreement.
31. [31]
    Although the parents sought a transition to full-time enrolment with greater alacrity, they initially continued with the enrolment. That continuance required an interim arrangement pending agreement. Limiting the hours of attendance was part of an interim management tool before moving to full enrolment. Within the context of the student’s behavioural history^[56] and  previous intermittent experiences of attending school and social isolation, the School’s approach of a gradual return to full attendance was understandable: it was adopting a cautious approach by “testing the waters” first.
32. [32]
    The  School’s motivation was a desire to prevent or minimise stressors for the student and disruption to other students^[57] - even if the actual Transition Plan and its implementation might not have been best practice for the individual student.^[58] The Respondents only knew what the parents told them.
33. [33]
    The purpose was to assist the student’s transition and help make it work: the School’s knowledge of the student’s behaviour from his parents prefaced the transition arrangement. When the parents withdrew the student from the school, it effectively ended the interim arrangement and the consultation process.
34. [34]
    The ultimate consequence of the parents and School not agreeing to a Transition Plan would have been the student attending full-time with support, followed by suspension and then exclusion in the event of continuing improper behaviour. The treatment was designed to minimise the sanction that would otherwise apply to misbehaviour. A misbehaving student without the impairment who attended full-time faced more serious sanction. Curtailing that risk with fewer hours on an interim basis was not less favourable.

Instructing the parents and grandmother to wait at the School for the first two weeks of Term 1

35. [35]
    The School had agreed to an adjustment to his Transition Plan that his parents or grandmother be permitted to wait in the library to be available to manage his diabetes.^[59] This reduced the risk of the student’s behaviour escalating to a level that might result in a school disciplinary absence.^[60] The purpose was to facilitate a successful transition on the basis of the behaviour as reported by the parents. It was reasonable to require the collection of the student where his attendance was reduced under an interim arrangement. It was incidental to, and a necessary consequence of, limiting the hours.

Taking photographs of the student while he was in an emotionally dysregulated state and then showing them to his grandmother

36. [36]
    It is not disputed that the Deputy Principal took a photograph of the student and showed it to his grandmother when she attended to take him home.^[61] However,  the parents had signed a Consent Form to the taking and using of photographs.^[62] The photograph does not show the face of any student.^[63]
37. [37]
    The Deputy Principal explained that she took the photograph to show that a female student had been moving away from the student after he had been disrupting the class.^[64] The Deputy Principal said that the student was not in an emotionally dysregulated state at the time^[65] and the purpose was to discuss moving the other student for her wellbeing.^[66]
38. [38]
    There was no evidence of the student being in an emotionally dysregulated state at the time. The Tribunal accepts the Deputy Principal’s focus was the safety of all students and the reason for showing the photograph to the student’s grandmother was in response to her raising the issue of his ability to make friends.^[67] That is not less favourable treatment but was used to inform the concern. 

Repeatedly requesting the student’s removal from the school grounds

39. [39]
    The student was excluded from the school grounds and ultimately suspended because of his repeated behaviour.^[68] Removal from the school grounds rather than suspension was a strategy to help support transition to fulltime enrolment.^[69] Other students, without diabetes, who engaged in similar behaviours had also been removed from the School grounds or suspended.^[70] His suspension period was less than the four-day period for similar conduct by another student.^[71] The School made arrangements for him to continue his education while suspended.^[72] The plan was for him to re-enter the classroom after his suspension to maximise his opportunity to successfully return to school.^[73]
40. [40]
    The Tribunal finds the suspension was not less favourable than any other student without the impairment who engaged in the behaviours. 

Proposing that the student be segregated from his peers and normal classroom

41. [41]
    The student was not as a matter of course excluded or isolated in the classroom.^[74] The purpose was to facilitate the transition by giving it a chance to work. The aim was to help integration and support learning by using a separate area for self-regulation and provide an opportunity to build a relationship with the new teacher in a less sensory-arousing environment.^[75] The student was not excluded from the class as he was located near other students and was encouraged to re-join when he felt ready.^[76]
42. [42]
    Moreover, the student’s treatment was reasonably necessary to protect the health and safety of people at a place of work and other students.^[77] The ‘segregation’ was not punitive but a ‘calm or withdrawal space’ used to help students focus if distracted by the whole classroom situation.^[78] Removing the student from a situation of potential stress did not mean less favourable treatment.^[79] Rather, it allowed the student an opportunity to settle down before returning to full participation.^[80]
43. [43]
    The Tribunal finds that withdrawal was used as a strategy to minimise the impact of the student’s behaviours on himself, other students and staff.^[81] It was not less favourable than how a student without the impairment who engaged in the behaviours would have been treated.    

Was the treatment reasonable?

44. [44]
    None of the treatment was less favourable than how a misbehaving student without the impairment would have been treated.^[82] There is a direct correlation between the student’s behaviour and his treatment. The Transition Plan was an interim tool to manage the behaviour and would have been an option for any student with a similar behavioural history without diabetes: the School applied incremental behaviour management.
45. [45]
    Intervention was directed to and elevated according to the behaviour, rather than the impairment. Not all incidents of disruptive behaviour correlated with abnormal blood glucose levels:

In my observations of [the student], he displayed violent, aggressive, disruptive and/or non-compliant behaviour that wasn’t connected with his diabetes, which could adversely affect his learning and wellbeing at the School and the safety and wellbeing of the other students and staff. In addition, [the student’s] ability to follow instructions was minimal.

…

I note that when [the student] knew his parents would be called to pick [him] up from School, he would then follow instructions and would sit down…^[83]

…

In these [behavioural] records [for 5 February 2018], Ms [deleted] and Ms [deleted] noted that they observed [the student] engage in behaviour categorised as being defiant, threatening to adults, disruptive, non-compliant with routine, other conduct prejudicial to the good order and management of school, refusal to participate in program of instruction, and verbal misconduct. It is noted that [the student’s] glucose levels on this day read a steady BGL [Blood Glucose Level]…^[84]

And:

When [the student] attended class, he demanded a significant amount of my one on one attention. [The student] would often attempt to drive the classroom discussion and seemed to only engage in lessons, activities or discussions if it was related to him or his interests. He appeared to need my sole attention all the time. I was aware that he had previously been home-schooled and this may be where this expectation arose. I observed that [the student] would disengage and become disruptive whenever other students received my attention, or he did not like the task/not interested. This made it difficult for me to attend to the needs of other students, even when he had the one-on-one attention of the support teacher.^[85]

My observation, after teaching [the student] for 3 weeks, was that [he] engaged in negative behaviours when he had to share an adult’s attention, or to attempt tasks that were not of interest to him. The support teacher and I would sometimes check the laptop monitor to see if [he] was recording a high/low BGL. When I observed it, I did not see it above a 9 or below a 6. This is separate from an ‘alarm’ when we attempted to respond immediately to [his] BGLs as per his diabetic action plan.^[86]

I observed [the student] refuse to allow the School staff… to check his continuous glucose monitor.^[87]

 And:

I believe that [the student] had behaviour issues, including disruptive and violent outbursts, not all of which were as a result of his Type 1 diabetes.^[88]

(emphasis added)

46. [46]
    The Tribunal accepts that the parents were dissatisfied with the implementation of the Respondents’ approach to their son and they do not believe the Respondents’ treatment of their son was in his best interests or gave him a sense of inclusion. ^[89] However, even if errors of judgement were made, inordinate or misguided behavioural management is not sufficient to establish discrimination.^[90] It must be on the basis of the impairment.
47. [47]
    The evidence is that the Respondents’ treatment made appropriate allowances for the impairment within the context of the needs and interests of other students, the wider school community and the student himself.^[91] At times, the way the Respondents interacted with the parents may not have been ideal.^[92] However, the Respondents were trying to manage a very complex situation on a daily basis while attending to the needs and interests of the student body as a whole.
48. [48]
    The Tribunal is satisfied that the Respondents’ treatment of the student was commensurate with the proper management, order and safety of the student, his classmates and the school community as a whole. The School was attempting to integrate the student’s interests within the greater student body: crucial to this was managing his behaviour so that all could focus on learning.^[93]

Did the Respondents act in bad faith?

49. [49]
    The Tribunal finds no evidence of bad faith.

What is the Tribunal’s finding?

50. [50]
    The Tribunal finds no evidence of direct discrimination. The Respondents treated the student no less favourably than they would have for any student with behavioural issues but without diabetes.^[94]

Do any of the exemptions apply?

51. [51]
    It is not unlawful to discriminate in a prohibited matter if one of the statutory exemptions applies.^[95] Because the Tribunal finds no evidence of direct discrimination, it is unnecessary to determine whether any of the exemptions apply.^[96]

Is this consistent with human rights?

52. [52]
    Because the Human Rights Act 2019 (Qld) commenced on 1 January 2020, it post-dates these events and does not apply. In any event, the Tribunal has been unable to find any direct discrimination by the Respondents on the evidence before it. Equally, no contravention of the student’s human rights^[97] arises from the evidence.
53. [53]
    The Tribunal is a creature of statute and the application of the relevant law to the evidence does not meet the requisite standard to make any findings of a contravention of human rights.^[98]

What are the appropriate Orders?

54. [54]
    Because the Respondents did not treat the student less favourably on the basis of his impairment, the Tribunal is not satisfied that the Respondents directly discriminated against him. The Respondents were managing the behaviour. To the extent the behaviour  was a characteristic of the impairment, its management was reasonable within the context of the needs and interests of the greater school community.
55. [55]
    Because the Tribunal has previously ordered that any reasons or orders of the Tribunal are not to identify relevant persons, these reasons are published in a de-identified format.^[99]
56. [56]
    The Tribunal will allow the parties to make submissions about costs.
57. [57]
    The appropriate Orders are therefore:

1. The application is dismissed.^[100]
2. BB is to file with the Tribunal and give the Respondents any submissions on costs by 4.00pm on 15 February 2021.
3. The Respondents are to file with the Tribunal and give BB any submissions on costs by 4.00pm on 1 March 2021.
4. BB is to file with the Tribunal and give the Respondents any submissions in reply by 4.00pm on 8 March 2021.
5. The costs of the proceedings will be determined on the papers and without an oral hearing not before 4.00pm on 8 March 2021.