Fox v Office of the Board of Studies [2012] NSWADT 236

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Fox v Office of the Board of Studies [2012] NSWADT 236 Hearing dates: 15 August 2012 Decision date: 15 November 2012 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: Leave is refused for the applicant's complaint of disability discrimination to proceed. Catchwords: EQUAL OPPORTUNITY - Board of Studies initially refused to allow a student with a disability to use a computer in the HSC - whether leave should be given for a complaint of disability discrimination to proceed - Legislation Cited: Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997 Cases Cited: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 IW v City of Perth (1997) 191 CLR 1 AB v Registrar of Births, Deaths & Marriages (2006) 235 ALR 147 King v Gosewisch [2008] FMCA 1221 AB v Registrar of Births, Deaths and Marriages (2007) 162 FCR 528 Category: Interlocutory applications Parties: Bowen Fox (Applicant) Office of the Board of Studies (Respondent) Representation: Counsel C Ronalds SC (Respondent) Mr Fox (Mr Fox senior as agent for Applicant) Board of Studies (Respondent) File Number(s): 121097

REASONS FOR DECISION

Introduction 1Mr Fox was a candidate for the Higher School Certificate in 2011. He has motor dyspraxia, a disorder that affects his ability to write. The Board of Studies initially refused, but later granted, his application to use a computer during the HSC exams. Mr Fox's father complained that the Board of Studies had discriminated against his son on the ground of his disability by initially refusing his application. He also complained that the marking practices for the HSC are discriminatory because markers assume that students who use a computer have an advantage and subconsciously give them lower marks. 2The provisions of the Anti-Discrimination Act 1977 (AD Act) do not apply to either of the situations Mr Fox is concerned about. In those circumstances, lawyers use the expression that the complaint is "misconceived" or "lacking in substance. Permission for it to go ahead is refused.

Complaint declined 3The President of the Anti-Discrimination Board declined the complaint as "misconceived" and "lacking in substance". Misconceived means that the facts of this case do not come within the provisions of the AD Act. Lacking in substance means that there is no factual basis for the allegations or that those allegations lack merit. 4Mr Fox elected to have the complaint referred to the Tribunal. A complaint that is declined and then referred cannot proceed unless the Tribunal gives its permission or "leave": Administrative Decisions Tribunal Act 1997 (ADT Act) s 96. Mr Fox has the onus of persuading the Tribunal that it is fair and just for leave to be granted, keeping in mind the purposes of the Anti-Discrimination Act 1977 (AD Act): Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143, per Schmidt AJ. 5The Tribunal's role is not to decide whether the complaint has been substantiated. Its role is to determine whether, after examining the merits of the complaint, it is fair and just for it to proceed to a hearing.

Making complaints on behalf of others 6Mr Fox's father initially brought the complaint on behalf of his son. Before a person can lodge a complaint on behalf of another person, that person must lack legal capacity because of age or disability: AD Act, s 87A(1). Mr Fox was over 18 when the complaint was lodged and did not have a disability affecting his legal capacity. That finding casts doubt on the validity of the complaint. For the purpose of these proceedings, I have assumed that the complaint was validly lodged. 7Mr Fox did not attend the hearing. His father wished to represent him. I granted permission for Mr Fox's father to act as agent for his son for the purposes of the leave hearing: ADT Act, s 71(1)(b1).

Alleged conduct 8Mr Fox's father alleges that the Board of Studies discriminated against his son on the ground of disability: (1)in initially rejecting his son's application to use a computer in the HSC examinations; and (2)in the marking practices for the HSC which assume that a student with a computer has an advantage.

First allegation - initial rejection of application to use a computer in the HSC exams 9On 3 March 2011 Mr Fox applied to the Board of Studies under the Special Examination Provisions scheme to use a personal computer during his HSC exams. The Board declined that application on 19 April 2011 but gave him permission to use a writer and to have extra time for each exam. Mr Fox appealed against that decision. On 19 July the Board of Studies advised Mr Fox that his appeal had been successful and he could use a personal computer in each of his exams. Those exams commenced three months later on 18 October 2011. 10Mr Fox's father said that although his son was permitted to use a computer in the exams, he was devastated when he was initially told that he would have to use a writer.

Legal principles 11Under s 49M(1) of the AD Act, it is unlawful for a person who provides services to discriminate against another person on the ground of disability: (a) by refusing to provide the person with those goods or services, or (b) in the terms on which he or she provides the person with those goods or services. 12Mr Fox used a personal computer in the HSC exams. On that basis, the Board denied that it had refused to provide him with a service or that it had provided him with a service on particular terms. 13The Board accepts that Mr Fox has motor dyspraxia and that that is a disability as defined in the AD Act. It also accepts that when determining Mr Fox's application to use a computer it was providing him with a "service".

Refusal of a service? 14The Board agreed that it provides the service of determining students' applications under the Special Examination Provisions scheme. If the Board refused to determine Mr Fox's application it would have refused to provide him with that service: s 49M(1)(a). The Board determined Mr Fox's application. It did not refuse to provide him with the service: IW v City of Perth (1997) 191 CLR 1 per Dawson and Gaudron JJ at 24 and Gummow J at 45. It follows that there has been no breach of s 49M(1)(a). 15While this approach is consistent with the reasoning of the majority of the High Court in IW v City of Perth, it is arguably too narrow a construction of s 49M(1)(a). In a Federal Court decision interpreting a similar provision in the Sex Discrimination Act 1984, Heerey J adopted a broader interpretation of the refusal of services than that of the majority in IW v City of Perth: AB v Registrar of Births, Deaths & Marriages (2006) 235 ALR 147. 16The Registrar of Births Deaths and Marriages had refused to change a person's sex from male to female on their birth certificate. Rather than finding that the service was the determination of that application, Heerey J decided that the service was altering the birth register. A refusal to alter the details on the birth certificate was the refusal of a service. Heerey J's decision was affirmed on appeal, but not on that point: AB v Registrar of Births, Deaths and Marriages (2007) 162 FCR 528. Black CJ, dissenting at 537-538, agreed with Heerey J's conclusion. 17If this interpretation is accepted, the service in this case could be characterised as "providing computers to students for use in HSC exams." The Board of Studies did not accept this characterisation. I accept it, but only for the purpose of exploring the merits of Mr Fox's complaint. The issue then arises as to whether that service was refused in April 2011, six months before the exams. 18A comparable situation arose in King v Gosewisch [2008] FMCA 1221. Two people who use wheel chairs could not access the first floor of a building to attend a public meeting. After a 40 minute delay, the meeting was transferred to the ground floor. Baumann FM at [78]-[81] held that the organisers of the meeting had not refused to provide a service to the people in wheelchairs because the "service" of organising the meeting was not provided until the meeting began on the ground floor. At that time, all participants were able to attend. 19Similarly, in this case, the service of providing computers to students for use in the HSC exams was not provided until the exams were held in October 2011. Mr Fox was provided with that service at that time. 20For these reasons any complaint that Mr Fox was refused is misconceived and/or lacks merit. There is no need to determine whether, if a service had been refused, that refusal was discriminatory.

Provision of a service on particular terms 21If the Board provided the narrowly defined service of determining Mr Fox's application and did so on particular terms, that conduct may contravene the AD Act if it is discriminatory: s 49M(1)(b). Mr Fox's father did not identify any particular term or terms on which the service had been provided. The Board made a decision that Mr Fox was not permitted to use a computer but could use a writer and have extra time to complete the exams. That was not a term on which the service was provided. It was the decision itself. If that view is accepted, then there was no breach of s 49M(1)(b). 22If the service is defined more broadly as "providing computers to students for use in HSC exams", the Board has not imposed any objectionable terms on the provision of that service. Mr Fox was able to use a computer in his exams. It follows that any complaint that Mr Fox was provided with a service on particular terms lacks merit or is misconceived. There is no need to determine whether, if a service had been provided on certain terms, those terms were discriminatory. 23Incidentally, we note that s 49M does not include a provision making it unlawful to discriminate in the manner in which services are provided. Toohey J relied on a provision in the Western Australian legislation to that effect in IW v City of Perth at 28 to conclude that the refusal of an application may constitute discrimination.

Second allegation - assumptions in marking practices 24Mr Fox's father submitted that a more subtle type of discrimination occurred during the marking process. He said that the Board of Studies has widely disseminated an incorrect view that a person using a computer during an examination has an advantage. An example of that view is contained in a letter from the Board of Studies to the Anti-Discrimination Board dated 11 April 2012: A computer is approved only for those students who have demonstrated their inability to use an alternative provision. Access to a computer in an examination can substantially change the nature of the student's response and introduces further considerations; While it is not simple to quantify the difference, there is evidence that typical typing speed is faster than typical handwriting speed, up to 50% faster. This has the potential to advantage the student over other students without that provision; Placing a neat, formatted typed response before a marker may subconsciously affect the marker's perception of its academic worth, for better or worse. 25Mr Fox's father submitted that an examination marker who accepted these assumptions might subconsciously award a lower mark to a person who has used a computer. In his view, the assumptions are wrong. He relies on an article written in March 2003 analysing results from California's General Bar Exam. He is adamant that the conclusion in that article is correct and that it applies equally to students studying the HSC. 26To substantiate a complaint under 49M(1) of the AD Act, a complainant must identify conduct by a service provider in relation to a person. Mr Fox's father has not identified any such conduct in this part of his complaint. He has identified an opinion expressed by an officer of the Board with which he disagrees. He has then speculated that that opinion may have affected the way a marker assesses a typed answer. Mr Fox has not identified a marker who has allegedly engaged in any conduct whatsoever, much less conduct that may be in breach of the AD Act.

Order Leave is refused for the applicant's complaint of disability discrimination to proceed.

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