A Hard Case Making Bad Law: Purvis V New South Wales and the Role of the Comparator under the Disability Discrimination Act 1992 (CTH)
| Author | Colin D Campbell |
| Published date | 01 March 2007 |
| Date | 01 March 2007 |
| DOI | http://doi.org/10.22145/flr.35.1.4 |
| Subject Matter | Article |
A HARD CASE MAKING BAD LAW: PURVIS V NEW SOUTH
WALES AND THE ROLE OF THE COMPARATOR UNDER
THE DISABILITY DISCRIMINATION ACT 1992 (CTH)
Colin D Campbell
∗
INTRODUCTION
Pursuant to s 5(1) of the Disability Discrimination Act 1992 (Cth) ("the Act"), an alleged
discriminator will have discriminated against a person with a disability if they treat the
disabled person less favourably, because of their disability, than they treat or would
have treated someone without the disability, 'in circumstances that are the same or are
not materially different'.
A matter crucial to the assessment of whether there has been illegal discrimination
for the purposes of the Act, therefore, is what constitutes the circumstances of the
aggrieved person's case. In order for there to be a contravention of the Act not only
must the alleged discriminator have treated the disabled person less favourably than
they would have treated someone without a disability, but the alleged discriminator
must have treated the disabled person less favourably than they would have treated
someone without a disability who was in the same circumstances as the person with
the disability.
In Purvis v New South Wales (Department of Education and Training) ("Purvis")1 the
High Court of Australia ruled on what would constitute the circumstances of the
aggrieved person's case that are to be ascribed to the comparator without the disability.
The case involved allegations of discrimination against the defendant brought on
behalf of Daniel Hoggan, a minor with an intellectual disability, by his legal guardian,
Purvis. Daniel's disability, which had been caused by a severe encephalopathic illness
he had suffered when he was seven or eight months old, manifested itself, from time to
time, in aggressive behaviour such as hitting or kicking. Daniel had commenced
attending South Grafton High School in April 1997, but was expelled from the school
in September of the same year. In the intervening five months he had been suspended
on five occasions, each time for an act of violence against, variously, other students and
staff members. The applicant argued that since the violent acts were a result of Daniel's
disability, the appropriate comparator — without Daniel's disability — was a non-
violent student whose circumstances were otherwise the same as Daniel's.
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∗ BA LLM (Melbourne), LLM PhD (Cambridge), Faculty of Law, Monash University. I would
like to thank my colleague Dale Smith for his assistance in the writing of this piece. The
usual disclaimer applies.
1 (2003) 217 CLR 92.
112 Federal Law Review Volume 35
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The leading judgment was provided by Gummow, Hayne and Heydon JJ. The
judges held that the 'circumstances referred to in s 5(1) are all of the objective features
which surround the actual or intended treatment of the disabled person' by the alleged
discriminator.2 '[I]t would be artificial', said the judges, 'to exclude … from
consideration some of these circumstances because they are identified as being
connected with that person's disability.'3 In the case under consideration, 'the
circumstances in which Daniel was treated as he was included, but were not limited to,
the fact that he had acted as he had.'4 'His violent actions towards teachers and others
formed part of the circumstances in which it was said that he was treated less
favourably than other pupils.'5 Accordingly, the comparator was a student who was
not disabled, but who had acted in the same violent manner as had Daniel. Callinan J
agreed with Gummow, Hayne and Heydon JJ with regard to the circumstances that are
to be ascribed to the comparator,6 and so, with them, formed an effective majority on
this issue.
It is thus apparent from the judgments of the majority in Purvis that, under the Act,
the manifestations of an aggrieved person's disability, and matters connected with
those manifestations, are part of their circumstances to be ascribed to the comparator.
Gleeson CJ agreed with the majority in the result and adopted a largely similar
approach. Hence, the 'circumstance that gave rise' to the treatment that Daniel received
'was his propensity to engage in serious acts of violence towards other pupils and
members of the staff.'7 The appropriate comparator therefore was not a non-violent
pupil.8 Rather, the appropriate comparator was a pupil who was violent in the same
manner that Daniel was, but whose violence did not result 'from a disorder'.9
The approach adopted by Gleeson CJ, however, was somewhat narrower than that
adopted by the majority. Unlike the majority, Gleeson CJ appears to have restricted the
manifestations of a disability that can be ascribed to the comparator to those
manifestations that people without the relevant disability actually display. Hence he
emphasized that Daniel's propensity for violence can also exist in people 'without any
disorder',10 and noted that there are people 'who have no disorder, and are not
disturbed, who behave in a violent manner towards others',11 matters not commented
on by the majority.
Not every member of the High Court agreed, however, that in at least some cases
the manifestations of the aggrieved person's disability may form part of the
circumstances to be ascribed to the comparator. Hence McHugh and Kirby JJ, who
dissented in the result, were of the view that 'circumstances of the person alleged to
have suffered discriminatory treatment and which are related to the prohibited ground [in
this case, disability] are to be excluded from the circumstances of the comparator.'12
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2 Ibid 161.
3 Ibid.
4 Ibid.
5 Ibid.
6 Ibid 175.
7 Ibid 100–1.
8 Ibid 100.
9 Ibid.
10 Ibid 101.
11 Ibid.
12 Ibid 131 (emphasis in original).
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