Just Cases | Season 3 | Episode 6 | Hard cases make bad law

“There’s a saying in law that hard cases make bad law,” says Dr Colin Campbell. “Judges will sometimes do what they think is right in a particular case, but in doing that they will muck up the law."

Numerous inquiries have uncovered widespread discrimination and exclusion against children at government schools around Australia. While state-run education departments are tasked with the responsibility of fixing this problem, there’s another institution in our society that has a major role to play: our courts.

But the leading court case that dictates how the courts play this role - and which judges around Australia are obliged to follow - is seriously flawed.

SHOW NOTES

All music by Lee Rosevere
- 'Introducing the Pre-roll'
- '17 - Awkward Silences version b'

Storyteller - Dr Colin Campbell, Faculty of Law, Monash University

Hosts - Dr Melissa Castan & James Pattison

Further reading
- Purvis v New South Wales (Department of Education and Training) [2003] HCA 62: http://eresources.hcourt.gov.au/showCase/2003/HCA/62-
- 'Improving Educational Outcomes for Children with Disability in Victoria: Final Report' (June 2018), E Jenkin, C Spivakovsky, S Joseph, M Smith, Castan Centre for Human Rights Law, Monash University: https://www.justcasespodcast.com/s/Castan-Centre-Improving-Educational-Outcomes-for-Students-with-Disability.pdf
- Victorian students with disabilities turned away from schools, report finds (ABC News, 29 June 2018): https://www.abc.net.au/news/2018-06-29/students-with-disabilities-victorian-government-schools-report/9923274
- Campbell, Colin D, "A Hard Case Making Bad Law: Purvis v New South Wales and the Role of the Comparator Under the Disability Discrimination Act 1992 (Cth)" [2007] FedLawRw 4; (2007) 35(1) Federal Law Review 111: http://classic.austlii.edu.au/au/journals/FedLawRw/2007/4.html

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Transcript | Just Cases | Season 3 | Episode 6 | Hard cases make bad law

[00:00:00] Dr. Colin Campbell: There's a saying in law that hard cases make bad law, and what that means is that there'll be cases in which judges will sometimes do what they think is right. In a particular case, but in doing that, they will muck up the law.

[00:00:29] Imagine this, you go to enroll your child in the local state school and you're told by the principal it's not a good idea that they join the school. Your kid specifically, if you do manage to get them into school, you find they're not getting the same education as everyone else. There's a basic support your child should be getting, but they're unable to get it.

[00:00:48] James Pattison: This sounds a little unfair, right? Now multiply this on a state and national scale. These are the findings of a 2018 Monash University study from the Caston Center for Human Rights Law and the Faculty of Arts. It uncovered widespread discrimination and exclusion against children throughout the state of Victoria at government schools.

[00:01:08] Numerous inquiries have found the same thing around the country.

[00:01:11] Professor Melissa Castan: There's something about your child that means school is either unwilling or unable, or maybe both to accommodate them. Governments around the country are tasked with responsibility of fixing this, but there's another institution in our society that has a major role to play in helping and protecting your child.

[00:01:28] The courts.

[00:01:35] James Pattison: There's a leading court case that dictates how the courts play this role, and our guest this week argues that this case, which judges around Australia are obliged to follow is seriously flawed. We are going to rewind to 1997 and zoom to Grafton in the Northern Rivers region of New South Wales. The case of 12-year-old Daniel Hogan shows the difficulty that mainstream schools have to accommodate students with disabilities, and the resulting court case shows the difficulty of the law to do so too.

[00:02:05] Professor Melissa Castan: Dr. Colin Campbell is a senior lecturer at Monash Law. Hi Colin.

[00:02:09] James Pattison: Hello both of you. Thanks for coming on Just cases today. First off, we're gonna hear about the facts of this case in just a moment, but we need to get our heads around a few things first, don't we? So what is direct discrimination?

[00:02:23] Dr. Colin Campbell: So there are two main forms of discrimination prohibited by Australian law.

[00:02:29] One's called direct discrimination, and the other. Perhaps unsurprisingly is indirect discrimination and in order to explain, um. Uh, the case pertaining to Daniel Hogan, which was called Pervis 'cause Pervis was the name of the person representing him and suing the government. Um, I, I'm gonna, first, i, I first need to explain the notion of direct discrimination to you or as it's called in the United States adverse.

[00:02:59] Impact discrimination.

[00:03:01] James Pattison: On that note, I'm actually very glad that you are taking the initiative to stop and explain the background of very difficult legal concepts. Um, because backed by popular demand on this show is a little red button that I hit whenever things get a little bit too lorry. Um, so if ever there's any point where.

[00:03:20] We need to stop and take a moment and, uh, and get you to re-explain something. You're gonna hear this ridiculous tune,

[00:03:31] so you get the idea of sort of the, the general quality of this podcast.

[00:03:36] Professor Melissa Castan: Alright.

[00:03:36] James Pattison: Okay. So direct and indirect discrimination. Yeah.

[00:03:39] Dr. Colin Campbell: So direct discrimination occurs when a person accused of discrimination. It treats the complainant less favorably because of the complainant's possession of what's called a protected attribute, like say, sex or race, or disability.

[00:04:01] Then the person accused of discrimination treats or would've treated someone without the protected attribute. But who is otherwise in the same circumstances as the complainant and that person in respect of whose treatment the complainant's, uh, treatment is compared, is called the comparator.

[00:04:28] So you sort of, you have person A who's the person who's got the special attribute.

[00:04:32] Yep. And you've got person B who's just like that person, except without that attribute. Yeah.

[00:04:37] That, that's exactly right. So, so, uh. The comparator, as you say, has two crucial features. Firstly, the comparator can't have the complainant's protected attribute because the whole point of the comparison exercise is to see how the alleged discriminator treated the complainant.

[00:04:59] Who has the protected attribute. So they're female or they're, or they're disabled or they're elderly compared with how he would've treated someone did or would've treated someone without the protected attribute. So did he treat the complainant who has the protected attribute less favorably than he treated or would've treated the comparator, who doesn't have the predicted attribute?

[00:05:24] So this is a but, but, but then secondly. Other than the possession of the complainant's protected attribute, the comparator must be in exactly the same circumstances or as close as possible to the same circumstances as the complainant. So we're comparing the alleged discrimative treatment of like. We'd like.

[00:05:44] James Pattison: So this is, this is discrimination 1 0 1, right? Absolutely. And this sort of, we'd call this a test, right? That, that you use this test in every case. Yeah,

[00:05:53] Dr. Colin Campbell: that's right. There's another form of discrimination called indirect discrimination. But that didn't concern us, us here. So is it helpful if I just give you, uh, an example of a straightforward case of absolutely direct discrimination?

[00:06:06] So, um, imagine there's a woman employed by a company. She's got a number of male colleagues. Um, she works just as hard as they do and achieves results that are just as good. Um, but, uh, imagine, uh, unfortunately doesn't require too much imagination, but imagine that she's paid half as much as her male colleagues or two thirds as much.

[00:06:32] Is there direct discrimination there? Yes, there is. So, so who's the comparator there? Uh, we know that the comparator, by definition doesn't have the protected attribute. So unlike the female complainant, the comparator is probably male, but otherwise the comparator is in the same circumstances as the complainant.

[00:06:58] So the comparator is a male employee of the company. Who works, um, as hard as our complainant does no harder, and who achieves the same results as our complainant does. Results that are, that are, that are no better. So the, the, the, the female employees paid two thirds of as much as is the, uh, male employee.

[00:07:21] Notwithstanding that she does just as good a job and works just as hard. So, so was she treated less favorably than the male comparator. Um, whilst would've been treated, and yes, she was, because we know that she was paid only half as much money as the male comparator, um, was paid. Because in the example I gave you, there are actual male comparators.

[00:07:44] Um, and because the comparator is in the same circumstances as the complainant, there's, there's a reasonable inference that, um, the less favorable treatment was accorded to the complainant because of a X. So, so I so rudely interrupted you before, but should we now turn Let's,

[00:08:04] I

[00:08:04] think you

[00:08:05] should be the host.

[00:08:05] I agree. I'm done. I'm out. You've

[00:08:07] James Pattison: explained things so methodically that, um. I think, I think we're not needed. Yeah, lets go.

[00:08:12] Dr. Colin Campbell: I think you're essential. And, and, and listening to me just talking is, is uh, rather unedifying boring. I

[00:08:18] find it quite edifying. So Colin, tell us about she come to purpose herself. Yeah.

[00:08:21] Tell, tell us about the case and particularly the person involved. Yeah.

[00:08:25] So purpose didn't involve discrimination on the basis of sex, but rather on the basis of disability. Um, and as we'll see the high court's decision in, in. Purvis went a long way to eviscerating or disempowering direct discrimination provisions under Commonwealth legislation.

[00:08:46] That's such a good word. So much. At least with regard to disability.

[00:08:49] James Pattison: Thanks for using that word on this show. Oh,

[00:08:50] Dr. Colin Campbell: how often do people say disempowering on, on this show? Well,

[00:08:54] on this show it's quite common. Oh, okay. Putting that aside. Alright.

[00:08:57] Um, so who is Daniel Hawkins? So in Pervis, a claiming direct discrimination.

[00:09:03] Was brought on behalf of an intellectually disabled 12-year-old, uh, Daniel Hogan. Um, his disabilities, and this is very important, manifested themselves from time to time in aggressive behavior such as hitting or kicking. He entered, uh, year seven at South Grafton High School, and over the ensuing months, he was suspended five times for.

[00:09:33] Hitting and kicking other students and staff members. And eventually he was expelled and his legal guardian brought an action under the Disability Discrimination Act, claiming that in being expelled, um, he would, he'd been treated less favorably because of his disability than someone would've been treated who wasn't.

[00:10:00] Disabled.

[00:10:00] And was, was Daniel's behavior the result of just being a, a bad. Sought or was that behavior actually a direct result of the medical impair result? Yeah,

[00:10:09] it wasn't as that he had of, it wasn't a result of simply being bad. Yeah, it was As a result of that, it was uncontested that it was as a result of his disability.

[00:10:21] James Pattison: I believe there was, um, a medical expert who gave evidence at the original hearing, uh, at the Human Rights and Equal Opportunity Commission who said that? Daniel's intellectual disability behavior. He had visual difficulties and epilepsy. It all came from this one brain injury that he suffered as a child.

[00:10:39] Yep. As a, a seven month old, I believe.

[00:10:41] Dr. Colin Campbell: That's right. So it all came because of his disability. Now the school, of course, tried to defend itself, um, against the claim. And in defending itself, the school made a couple of arguments. Um. The school argued, first of all, that any less favorable treatment, any adverse treatment that was accorded to Daniel, um, was accorded, not because of Daniel's disability, but rather because of the manifestations of the disability, which the school argued was a different thing.

[00:11:21] And the court, which credit. Rejected that argument, rejected that argument, saying that for the purposes of ascertaining whether treatment, um, was accorded because of a person's disability, the manifestations of the disability, counters the disability. However, the school had another argument. Relating to the disability in its manifestations, which the court accepted.

[00:11:51] So can I tell you what, what that argument was, please? Yeah.

[00:11:53] James Pattison: Sorry. First of all,

[00:11:57] Dr. Colin Campbell: awesome, awesome. That will be ringing in my head for the remainder of the day. I

[00:12:02] dream about that sound.

[00:12:03] James Pattison: Isn't it beautiful? Uh, the manifestations of the disability. So what can you take me through? What precisely that means, how, how you can kind of distinguish between the disability and its manifestations.

[00:12:17] Dr. Colin Campbell: Well, well quite one may well ask, um, in this case, the manifestations of the disability were, were Daniel's violent behavior. And again, the court to its credit, although as we'll see, it soon loses its credit. But, but to its credit here, at least for the purposes of the argument that. He was expelled because of his disability.

[00:12:43] The court said you can't distinguish between the disability on the one hand and its manifestations on the other for the purposes of whether the adverse treatment was accorded because of the disability. You can't distinguish between those two things. Okay. Which seems the right position to me. Totally.

[00:13:03] Um, but the second,

[00:13:04] the second argument,

[00:13:05] yeah. So the court was. More receptive to another argument made by the school. And so let me explain what that argument was. Um, so in order for a claim of direct discrimination under Section five, one of the Commonwealth Disability Discrimination Act to be made out, it, it must be the case that the discriminator treats or proposes to treat the aggrieved person less favorably than the alleged discriminator.

[00:13:38] Would treat a person without the disability, but in circumstances that, that are the same or not materially different from those of, um, the complainant. So the same formulation as I provided to you before, so the majority, imper Purvis said that in making that assessment for the purposes of the Disability Discrimination Act.

[00:14:08] The manifestation of the complainant's disability must be regarded as part of his circumstances or part of her circumstances to be attributed to the comparator. So on the one hand, for the purposes of causation, the court saying, no, no, you can't cleave between. On the one hand, the disability, and on the other hand, the manifestations of the disability.

[00:14:37] But then, then the court says, in a way, which doesn't fit comfortably with what I've just said, that, that for the purposes of constructing the comparator, we can distinguish between, on the one hand, the disability, and on the other hand, the manifestations of the disability and the manifestations of the disability should be regarded as, uh, part of the circumstances.

[00:15:05] Of the complainant's case, which are attributed to the comparator.

[00:15:11] So are you saying that when I look at. The treatment of child A and compare it to the treatment of child BI look at, I can look at child A and say, child A manifests certain violent or aggressive behavior. And that's an incident or, or caused by the disability that they're, that they're dealing with.

[00:15:31] When, and I'm gonna compare the treatment that child A got with the treatment that we would give, we would give to child B our comparator. Yep. If child B was a violent, violently behaving child. That's exactly right. So we, we are comparing to

[00:15:46] but, but crucially in circumstances where child A is with disability Yes.

[00:15:51] And, um, the violent behavior occurs as a result of the disability. And Child B by definition, can't have a disability. Can't have a disability because the whole point about the comparator is that the comparator. Can't, can't have the same, the protected attributes. Yes. Can't have the disability, can still have the behavior, but according to the court in Purvis can have the behavior.

[00:16:17] And so

[00:16:18] the question well that's always gonna bring you to a no discrimination answer then, isn't it? Of? Of course it will.

[00:16:23] So, so the question therefore becomes whether the alleged discriminator treated the complainant who has a disability less favorably than he would've treated someone. Without a disability, but with all of the manifestations of the difficult of the disability, all of the aspects of the disability that make it difficult, difficult to deal with.

[00:16:46] James Pattison: So all the aspects of a disability that make it a disability. Yeah, that's, that,

[00:16:50] Dr. Colin Campbell: that's, that's precisely right. Um, and so in this case, the question became, did the school in expelling Daniel Hogan treat him less favorably? Then it would've treated someone who wasn't disabled, but was violent and, and what do we think the answer was?

[00:17:11] I mean, unsurprisingly, there was no less favorable treatment because just as the school expelled Daniel Hogan, who disability manifested in violent actions, the school would've expelled a student who wasn't disabled. And who was similarly, similarly violent Indeed. If anything, the comparator has all of the difficult aspects of the complainant, but doesn't even have the excuse of being disabled.

[00:17:46] So if anything, the comparator is going to be expelled more readily. Maybe not after several suspensions, but maybe. Immediately, but the, yeah, so the problem is the way they've constructed it is you'll never have a finding of

[00:18:01] discrimination against the alleged discriminate. Absolutely.

[00:18:04] And, and exactly. And you can have some sympathy.

[00:18:08] I you have a bit of sympathy for the high court because if you look at it from the point of view of, say the school principal he was in, he was in a bad situation, but there's, there's a saying in law. That hard cases make bad law. And what that means is that there'll be cases in which judges will sometimes do what they think is right in a particular case.

[00:18:37] Here, what they thought was right was protecting the school, but, but in doing that, they will muck up the law and I think. Pretty unequivocally, that's what happened in Purvis.

[00:18:56] You are listening to Just Cases today, a court case that has set unreachable standards for anyone wanting to bring a disability discrimination claim. We're gonna learn about the impact this case has had on the ability of our law to promote equal access to things such as education and employment,

[00:19:13] James Pattison: and to our listeners who use Apple Podcasts.

[00:19:15] If you haven't already, we'd love for you to take a moment and leave a short review of just cases on the app if you're time poor. We also do love a five star rating, don't we, Melissa?

[00:19:24] Professor Melissa Castan: We love a five star rating.

[00:19:26] James Pattison: And how long does it take?

[00:19:27] Professor Melissa Castan: Oh, just a moment.

[00:19:28] James Pattison: Yes. I'd say half a moment even leaving a review or giving us a rating.

[00:19:32] Um, it really helps push us up the charts on Apple Podcasts and, um, and thanks to a flurry of ratings that we had a couple of weeks ago, just cases jumped up to crack the top 20 Australian Education podcast. So thank you. Woo. Yeah. Alright. We'd love to make this a regular thing, so it means that we get in front of more and more people so we can keep on telling more of these weird and wonderful court stories.

[00:19:55] Professor Melissa Castan: So thank you for your reviews.

[00:20:00] James Pattison: It's very tempting to, to. You hear terms such as comparator protected attribute, uh, it's very technical. And for the people who don't have a legal background, it can be a bit intimidating to hear such technical terms. Um, but this is not an abstract, kind of purely academic pursuit. What has happened in this decision in Purvis has had a really profound impact Yes.

[00:20:27] On future cases, hasn't it? And

[00:20:28] Dr. Colin Campbell: so there've been many there. There are. Almost no cases decided under the Disability Discrimination Act where claims are made of direct discrimination, post purpose, that have been successful and, and of those that have failed the sub. I mean, some of them fail for reasons unrelated to purpose, so the complainant can't show they were treated.

[00:20:52] As they were treated because of their disability. There's some other sort of justification that the respondent has provided, but the substantial bulk of cases, post purpose that have been in where under the Disability Discrimination Act, where a claims made of for direct discrimination that have been unsuccessful, have been unsuccessful because the, the Federal Magistrates Court is following the logic.

[00:21:20] Such as it is of Purvis. And there have been a few cases decided under the Disability Discrimination Act, post Purvis, where a claim was made of direct discrimination that have been successful. But in most of those cases, um, the judges have either ignored purpose, which they're not meant to do or they've.

[00:21:48] Misapplied purpose. O? Either, either. I mean, one presumes intentionally. Are you saying

[00:21:56] they found a workaround?

[00:21:58] No. They didn't find the workaround? No. They just, well cocked it up. They misapplied it. They misapplied it in a way that is obvious. It's been misapplied, a case for an application was made, um, in direct discrimination under.

[00:22:14] The DDA that was successful, but where the Federal Magistrate's Court misapplied purpose, um, is a case called Max Insurer. In that case, the complainant claimed that she had been discriminated against in various ways by her employer as a result of the fact that she suffered from. Crohn's disease and was required to carry a colostomy bag.

[00:22:43] The magistrate who heard the matter, uh, paraphrased the relevant portion of Purvis and outlined the characteristics of the appropriate comparator. He stated correctly in accordance with the majority approach in purpose that the comparator. It didn't have Crohn's disease, and maybe she can't because she can't have the disability, but nonetheless carried a colostomy bag.

[00:23:16] Now, even the fact that Purvis requires that sort of bizarre, contrived comparison is, is says something about purpose, doesn't it? But, but that's what the logic of Purvis. Requires there's a, a genuine sense in which the complainant's colostomy bag pursuant to what purpose is, is, is part of the, one of the manifestations of her disability.

[00:23:42] So it has to be attributed to the comparator. So, so the judge recognizes as he's obliged to do that the comparator doesn't have Crohn's disease, but does walk around. With a colostomy bag for fun as you do. However, the, the federal magistrate then concluded that the, the complainant had been discriminated against, contrary to section five because she received the treatment of which she complained as a result of carrying a colostomy bag, uh, to which the respondent had referred in, um, de deprecating terms.

[00:24:27] Now we can only applaud the outcome in that case. But, but the decision is, is not following, it's not following purpose. This

[00:24:39] James Pattison: is, this gets to an issue that was brought up by Luke Beck in. Our episode that we did about funding of religious schools. Mm. Where we spoke about reasoning and the importance of reasoning.

[00:24:51] Mm. And he likened it to, for people who don't have a legal background Mm. He likened it to doing maths. You do all the wrong working. Um, your logic is completely flawed, but you fluke the answer. Mm. So hearing you talk about the correct decision, sorry, I should say applying the logic of purpose correctly, you're actually saying they're doing the correct workings like you would in a maths problem, and it can come to a, a really unjust or absurd outcome.

[00:25:20] But in this, in this circumstance of this case that you're talking about, they did the opposite. They actually incorrectly applied per purpose, shoddy working, but came to kind of a fluke of a decision, which is a just outcome for this person who was discriminated. Yeah,

[00:25:34] Dr. Colin Campbell: they certainly came to a just outcome and, and, and an outcome that we would applaud on the merits, but the working by which they get to the outcome.

[00:25:44] Involves them not, not following purpose,

[00:25:46] but this precedent's now 20 years old and it clearly, the, the interpretation doesn't feel like it meets what the purpose of that act, that Disability Discrimination Act is for. Like the ACT is in order to ameliorate the effects of direct discrimination. And yet the way the high courts interpreted it actually.

[00:26:06] Doesn't fulfill the, the mission that the act should be doing. Isn't it time for that act to be reformed?

[00:26:11] Yes. Interestingly, interestingly, it's possible that the problems posed for the operation of direct discrimination under the Disability Discrimination Act by Purvis have been cured by legislation.

[00:26:27] Although ultimately, and and despite what I wish was the case, I, I, I don't in good faith think that so. In 2009, so quite a while ago now, but in 2009, the Commonwealth Government made various amendments to the Disability Discrimination Act. One amendment was the inclusion of the following words in section four of the Act.

[00:26:51] Um, those words are, and I'll quote them to avoid doubt. A disability that is otherwise covered by this definition includes behavior. That is a symptom or manifestation of the disability. Now, the words to avoid doubt, which preface the words, suggest that an already existing position is being confirmed, um, rather than that a position is being changed.

[00:27:21] James Pattison: Is that, is that strange to have that wording in legislation to avoid doubt?

[00:27:26] Dr. Colin Campbell: Yes. Quite. And, and, and that, that makes me to avoid doubt suggests I think that a. That, that an existing position is being confirmed rather than a position is being being changed. Um, although look, the position might have been changed by Section four, but there aren't really enough cases that have come up.

[00:27:49] Purpose had an immensely chilling effect, and there just aren't enough cases to know what Section four has actually done.

[00:27:57] James Pattison: So, as we mentioned at the start of this episode, there was a, a report by the Castin Center for Human Rights Law at Monash in 2018 that looked at the difficulties that Victorian school students have who have disabilities in accessing their education at state government schools.

[00:28:15] Daniel Hogan, when he moved from primary school. To secondary school faced all sorts of barriers from the secondary school to actually being enrolled in that school. It seems to have gone on for a long period of time that there was a back and forth between his family and the school about whether the school could actually accommodate him.

[00:28:35] This is an ongoing issue. I mean, that happened 20 years ago and this is still an ongoing issue today are our state government schools. Able to accommodate students with disabilities. And the question for you is, is our law able to do so?

[00:28:50] Dr. Colin Campbell: So I, I, I think our law can really help here, but I think a lot needs to be done to make the law better.

[00:28:58] So first of all, just following on from what I've been talking about, I think, um, there should be legislation making it absolutely clear that for the purposes of direct discrimination under the Disability Discrimination Act. The, uh, manifestations of a person's disability are part of that disability for the purposes of the comparator exercise and aren't to be attributed to the comparator.

[00:29:28] So contrary to what purpose said and what Purvis required to be done. Secondly, there's a requirement, a relatively recent requirement. In the Disability Discrimination Act, requiring that in, in some circumstances, that that schools and employers and so on make what's called reasonable accommodations for people with disability.

[00:29:57] They're meant to do things to, to help or to facilitate the people's performance of their job or attendance at school or, or whatever are those provisions in the Disciplinary Discrimination Act. Are quite badly drafted and they've been interpreted in a case called Voss in a very, very narrow way. So, uh, I think those provisions need to be amended and there's something of a push for that to be done.

[00:30:27] Finally, under almost every. Discrimination enactment in Australia is someone who brings a claim of discrimination before they get to court. They're required to go through a conciliation process. Now, there certainly are advantages to a conciliation process, but there are. Significant disadvantages as well.

[00:30:50] A, a, a compulsory conciliation process. One disadvantage is that such a process can be, can be very, very lengthy and that's particularly significant if the applicant is, say, a school child and, and particularly say a primary school child if you have a, a concern with how your primary school child with disability is being treated.

[00:31:17] By the school and you go through a conciliation process, that is, it takes some time for it to get started. The process is lengthy and then ultimately it's unsuccessful. That passing of time is, is very significant because, for instance, it's not at all impossible that by the time the unsuccessful compulsory conciliation process has finished.

[00:31:47] The, the, the child will have finished their primary schooling or, or at least will be coming near the end of it. So, so the availability or the, the, the theoretical availability of, of the court will be rendered newry. 'cause you're no longer, the child will no longer or su or will soon no longer be at the school.

[00:32:11] And so I, I think that the requirement to go through compulsory conciliation prior to bringing a claim in discrimination before the court should be removed.

[00:32:21] Colin Campbell, thanks for a very interesting episode of Just Cases

[00:32:25] entirely. My pleasure.

[00:32:27] That was Dr. Colin Campbell from Monash Law. We'll put a link to the case in the show notes for this episode as well as the Caston Center's report into discrimination at Victorian Government Schools.

[00:32:37] Head over to just cases podcast.com

[00:32:42] James Pattison: and we are very excited to announce the winner of our one question survey competition. Uh, thanks to everyone who answered the survey. Your answers have really helped us get an idea of the sorts of cases you like. Also, what you don't like and what you want to hear more of. And the winner is Nicole Horner.

[00:32:58] You've scored yourself a $50 Amazon gift card, and we'll be in touch with you shortly via email.

[00:33:04] Professor Melissa Castan: We love hearing your story, suggestions and feedback on the show. Get in touch on Twitter and check out the show notes@justcasespodcast.com. See you next time. Bye.