Purvis v New South Wales
High Court of Australia · 2003
Purvis v New South Wales (2003) 217 CLR 92
A student is excluded for violent behaviour that his disability causes. Has he been treated less favourably because of the disability — or because of the behaviour?
The 2009 amendments did NOT displace this comparator. Current s 5(1) still compares with a person without the disability in circumstances that are not materially different, and Sklavos v Australasian College of Dermatologists [2017] FCAFC 128 applies Purvis in construing the amended Act. Nor is s 5(3) new in substance: former s 5(2) already provided that a need for different accommodation is not a material difference, which McHugh and Kirby JJ at [105] described as recognising rather than imposing an obligation of accommodation. What IS new is s 5(2), and it has TWO requirements that are commonly collapsed into one. Paragraph (a) is the failure to make reasonable adjustments. Paragraph (b) is that the failure "has, or would have, the effect that the aggrieved person is, BECAUSE OF THE DISABILITY, treated less favourably than a person without the disability would be treated in circumstances that are not materially different". The words "because of the disability" are a causation requirement in their own right. The reasoning is BROMBERG J's, and he rejects the effects-only reading in terms: Dr Sklavos submitted that "the whole focus of paragraph (b) [of s 5(2)] is not on the treatment but the effect", and his Honour holds that construction "wrong on a number of levels" -- "[t]hat s 5(2) poses a causation question is obvious. The phrase 'because of the disability' appears. It must be dealing with causation and it must be given work to do." He sets out the structure: "[c]onsistently with s 5(1), s 5(2) poses two questions - the comparator question and the causation question", the second being "whether that was because of the disabled person's disability". And on the difference from indirect discrimination: "for direct disability discrimination it is necessary that the disability explains (or partially explains: s 10) the treatment or conduct of the discriminator which resulted in the less favourable treatment", whereas for s 6 "it is sufficient that the disability explains the disadvantage". So s 5(2) is a second route that still runs through the comparator AND through disability-based causation, not a standalone duty to adjust. Sklavos retains both. It nonetheless reaches close to the argument the majority rejected at [218] as having no textual basis in the old s 5.
What happened?
Daniel Hoggan had a brain injury whose effects included disturbed behaviour. The definition of "disability" in s 4 of the Disability Discrimination Act 1992 (Cth) expressly reaches "a disorder, illness or disease that ... results in disturbed behaviour" ([3]). After a history of incidents, the principal of his state school excluded him, citing the pupil's "very violent behaviour" and his own responsibility for the safety of other pupils and staff ([2]). Unlawful discrimination in education under s 22 was alleged.
The case was run as direct discrimination under s 5 alone. It was not argued as indirect discrimination under s 6, which Gleeson CJ noted would have raised a difficulty of its own ([3]).
What did the Court decide?
The appeal was dismissed. On the majority's construction (Gummow, Hayne and Heydon JJ), the "circumstances" in s 5(1) are "all of the objective features which surround the actual or intended treatment", and "[i]t would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person's disability" ([224]). So the circumstances of Daniel's treatment "included, but were not limited to, the fact that he had acted as he had" ([225]).
That left two questions: how would the authority have treated a person without the disability in those circumstances, and if the treatment was less favourable, was it because of the disability ([225])? The claim failed at the first.
The majority was explicit that this construction does not hollow out the Act — s 6 remains engaged where a discriminator requires compliance with an unreasonable requirement or condition ([226]) — and rejected the submission that s 5 required the provision of accommodation or services, there being "no textual or other basis in s 5" for it ([218]).
Proposition
What is the principle?
Under s 5(1) of the Disability Discrimination Act 1992 (Cth), the circumstances of the treatment are all of the objective features surrounding it, and there is no basis for excluding some of them because they are connected with the person's disability. The comparison is therefore with a person without the disability in circumstances that are the same or not materially different — including, where the treatment responded to conduct, the fact that the person acted as they did.
Why does this case matter?
This is the case that decides how much of anti-discrimination law a comparator can swallow. The majority accepted that behaviour can be part of a disability — the statutory definition says so in terms — and still dismissed the appeal, which tells you the work is not being done by whether the attribute is engaged. Whether that is the right reading has been argued about ever since; what is not arguable is that an answer which establishes the disability and stops has not reached the question the case turned on.
Two exits the judgment leaves open are worth more than the outcome. The majority pointed to s 6 in the same breath ([226]), and the case was never run that way ([3]). Parliament later opened a third that did not exist in 1992: s 5(2) makes a failure to make reasonable adjustments discrimination in the circumstances it defines. That comes close to the argument rejected at [218] — but read that paragraph to the end, and read s 5(2) against the note on later authority below, because it is a second route through the comparator rather than an escape from it. A problem that looks unwinnable on these facts may be a different claim rather than no claim.
Exam and application relevance
Set out the comparator explicitly and state what you have put into "the same or not materially different" circumstances, because that is the step being marked and it is where the case was decided. Then test it against s 5(3): a need for adjustments does not make circumstances materially different, so putting that into the comparator is an error the statute now names. Before concluding that a claim fails, run the other two routes — an unreasonable requirement or condition under s 6, and a failure to make reasonable adjustments under s 5(2) — and say why each does or does not fit. Do not treat s 5(2) as a bare duty to adjust. Answer each of its two limbs separately and say which one your facts fail; an answer that runs them together has almost always dropped the causation limb, which is the harder of the two. Confine what you take from this case to disability under s 5; it is a construction of that provision, not a general rule about every protected attribute.
Check your understanding
The Act's definition of disability expressly includes a disorder that "results in disturbed behaviour", and Daniel's behaviour was accepted as part of his disability. Why did that not decide the case in his favour?