Basal Questions :: Simon Evans

Rights culture/legal culture

Hurst v State of Queensland [2006] FCAFC 100 (28 July 2006) is an interesting illustration of Australian legal culture (in particular judicial culture) at work. 

The underlying facts concerned a young hearing impaired girl who would suffer serious education disadvantage if the Queensland Education Department inisted on teaching her according to its policies (which involved signed English) rather than Auslan.

But the court insisted that the case was about the meaning of section 6 of the Disability Discrimination Act, in particular the italicised words below:

"For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:

(a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and
(b) which is not reasonable having regard to the circumstances of the case; and
(c) with which the aggrieved person does not or is not able to comply."

Ryan, Finn and Weinberg JJ made the formal, legal, focus quite clear:

131 Finally, in order to avoid any misunderstanding, it should be stressed that Tiahna’s case is not a test case.  The judgment of this Court does not establish that educational authorities must make provision for Auslan teaching or interpreting for any deaf child who desires it.  It does not establish that Auslan is better than signed English as a method of teaching deaf children.  It does not determine that an educational authority necessarily acts unreasonably if it declines to provide Auslan assistance. 

132 As with all proceedings of this type, Tiahna’s case is highly fact specific.  It depends upon the circumstances unique to her case and, importantly, upon the primary facts found by the primary judge, none of which were challenged before us.  It also reflects the way in which the case was conducted at trial and on appeal.  The observations of Sackville and Stone JJ in Clarke FC at [136] are equally apposite to this case.

133 It is unfortunate that Tiahna’s case, as with others of a similar nature, appears to have engendered a great deal of passion.  It is, in the end, a case about a single litigant, which turns upon a narrow question of construction.  The resolution of this case is not assisted by the involvement of various interest groups, each with its own agenda, which seek to politicise what is, at bottom, a legal issue.

Greg Craven on Federalism in the Australian

This blog was in grave danger of becoming moribund. Here's hoping for some more activity! A first taste: Greg Craven writing compellingly about the virtues of federalism in the Australian:  Greg Craven: Business gets its absolutes out of order.