BB v State of Queensland & Ors [2020] QCAT 496
Date: 17 December 2020
Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Member: Member Hughes
Human Rights Act 2019 (Qld) Sections: ss 15, 36
Rights Considered: Right to recognition and equality before the law; Right to education
Other Legislation: Anti-Discrimination Act 1991 (Qld) ss 7, 10, 37, 39, 40, 44, 103, 108, 114, 191, 210, Schedule 1; Disability Discrimination Act 1992 (Cth) s 31; Education (General Provisions) Act 2006 (Qld) ss 11, 12, 176, 177, 182, 183; Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66
Keywords: Discrimination; Education, Training and Employment
The Tribunal considered whether a school directly discriminated against a student, on the basis of his impairment. The Tribunal noted that the Human Rights Act 2019 (Qld) did not apply in this case as the legislation commenced after the relevant events took place. Nonetheless, it found no evidence to suggest that the student’s human rights had been contravened.
BB’s son (‘the student’) was enrolled in a large state school (‘the school’) in Brisbane. The student exhibited certain behavioural issues, including low stress tolerance, intolerance of other children, difficulty taking instructions, difficulty monitoring and regulating his emotions, inability to control his temper, and frustration at being made to do school work: at [3]. In response, the school limited the hours the student could attend school, instructed family members to wait at the school for the first two weeks of term, requested the student’s removal from the school on several occasions, and proposed that the student be separated from his peers and normal classroom: at [25], [35], [39] and [41]. The student’s parents claimed that the school’s treatment of their son before and during his enrolment constituted direct discrimination.
The student had Type 1 diabetes mellitus, an attribute protected under the Anti-Discrimination Act 1991 (Qld): at [5]. The respondent ‘educational institution’ was required under the Anti-Discrimination Act 1991 (Qld) not to vary the terms of his enrolment, deny or limit his access to any benefit from enrolment, or treat him unfavourably in connection with his education: at [7]. The Tribunal applied the test for direct discrimination, which involves identifying the appropriate comparator, determining the circumstances that are the same or not materially different, evaluating whether the applicant was treated less favourably than the comparator on the basis of their attribute, determining whether the treatment was reasonable, and determining whether the respondents acted in bad faith: at [8].
The Tribunal held that ‘[t]he required comparison must be with the hypothetical treatment of another student without the impairment and with behavioural issues’: at [16]. The relevant circumstances were the student’s behavioural history and the school’s policies, agreements and management plans relating to the safety and wellbeing of the school community: at [19].
Taking into account the relevant circumstances, the Tribunal found that the school’s treatment of the student was ‘not less favourable than how a student without the impairment who engaged in the behaviours would have been treated’: at [43]. The treatment was found to be reasonable and no evidence of bad faith was found: at [48]-[49]. The Tribunal found no evidence of direct discrimination and dismissed the application: at [50].
The Tribunal held that the Human Rights Act 2019 (Qld) did not apply in this case as the legislation commenced after the relevant events took place: at [52]. The Tribunal observed that the evidence did not reach the threshold to make a finding of a contravention of human rights, referencing the right to recognition and equality before the law and the right to education in the footnotes: at [52]-[53].
LINK: https://archive.sclqld.org.au/qjudgment/2020/QCAT20-496.pdf