Submitted
by: F (name withheld)
Alleged
victim: The author's son, C (name withheld)
State
party: Australia
Date
of communication: 22 July 1998 (initial submission)
The
Human Rights Committee, established under article 28 of the
International
Covenant
on Civil and Political Rights,
Meeting
on 25 July 2001,
Adopts
the following:
Decision on admissibility
1. The
author of the communication is F (name withheld), presenting a communication
dated 22 July 1998 on behalf of her son, C (name withheld), born
10 July 1979. She claims that her son is a victim of violations
by Australia of article 26 of the International Covenant on Civil
and Political Rights.
The
facts as presented
2.1 From
24 February to 2 March 1993 and again from 12 to 18 March 1993,
the author's son was suspended with a recommendation for exclusion
from Year 8 at Miami State High School. The conduct giving rise
to the suspensions included gross insolence, deliberate and persistent
disobedience and deliberate provocative behaviour which adversely
affected staff and students.
2.2 From
21 April 1993 to 15 December 1993, the author's son attended Barrett
Adolescent Centre, a short-term residential facility for adolescents
aged 13 to 17 who suffer from emotional, behavioural and psychiatric
disorders. During this period, he was medically diagnosed as having
Oppositional Defiance Disorder, which has multiple aetiologies.
The diagnosis considered that the condition of the author's son
had directly affected his behaviour in the past and was likely to
affect his behaviour in the future. It also indicated that the behaviour
of the author's son was within his control and could be improved
with appropriate behaviour management strategies.
2.3 In
early 1994, it was proposed that the author's son should be enrolled
at Merrimac State High School, a school close to home and with a
special needs unit on site. The school's administration, in conjunction
with the State's education department, proposed however that in
the light of past experience the author's son, the author and the
principal would sign a behaviour management contract mutually negotiated
prior to enrolment. Such a contract typically sets out the roles
and responsibilities to be accepted by each party to facilitate
the child's return to school within a framework of working towards
acceptable behaviour. After a variety of draft contracts were developed,
the author terminated the discussions. She requested that her son
be able to return to school and that he should not be expected to
control his behaviour.
2.4 On
11 April 1994, a complaint was lodged with the Human Rights and
Equal Opportunity Commission ("the Commission") alleging discrimination
against the author's son on the grounds of disability. After a conciliation
conference on 6 November 1996 where the author expressed concern
that her son had not completed his education, he was offered re-entry
at Year 11 with an education programme tailored to his needs. She
declined the offer on the basis that her son was too hurt by his
experiences at school to return.
2.5 On
20 May 1997, the Disability Discrimination Commissioner of the Commission
concluded that there was no evidence that the requirement that the
author's son sign a pre-enrolment agreement constituted unlawful
discrimination. She found no direct discrimination in that he had
been required to sign an agreement because of his behaviour and
previous suspensions, like other students with behavioural concerns,
and not because of a disability. Nor was indirect discrimination
found, for the author's son was considered on the evidence to be
able to meet goals set, and choose to accept authority and control
his behaviour. The behavioural goals set were tailored to him and
progressive, and school staff were to be specifically trained to
deal with the difficulties of the author's son. In the circumstances,
the contract was found to be reasonable and not discriminatory.
On 4 August 1997, the President of the Commission confirmed the
decision and dismissed the complaint.
The
complaint
3.1 The
author makes a series of allegations, centred around a claim of
discrimination on the grounds of disability in violation of article
26 of the Covenant. She alleges initially that the Commission in
addressing her claim of discrimination failed to consider and apply
the Declaration on the Rights of the Child, the Declaration on the
Rights of Disabled Persons and the Australian Constitution. The
Commission is also said to have failed to obtain relevant evidence
and relied exclusively on information and materials of the education
authorities.
3.2 The
author alleges discrimination against her son on the grounds of
disability in that he was required to comply with a condition for
entry (the pre-enrolment contract) which was not required of students
without a disability. Moreover, the terms of the proposed contract
were said to be unreasonable. In particular, a requirement seeking
her son to work towards addressing his behaviour was inappropriate
as the nature of her son's disability is said to be an organic brain
disorder for which there is no treatment. Finally, the author contends
that the requirement for such a contract substantively breaches
domestic law, the Declaration on the Rights of the Child and the
Declaration on the Rights of Disabled Persons.
The
State party's observations regarding the admissibility and merits
of the communication and the author's response
4.1 As
to admissibility, the State party argues that the author lacks standing
to present the communication. The State party points out that the
author's son was 18 years old at the time the communication was
submitted, and that in the absence of exceptional circumstances,
the author's son ought either to have presented the communication
himself or expressly authorized his mother to submit the communication
as his representative. In the absence of any such authorization
or exceptional circumstances, the communication accordingly is said
to be inadmissible ratione personae.
4.2 The
State party also argues that available domestic remedies have not
been exhausted. It argues that the author could have sought judicial
review in the Federal Court of the Commission's decision. If the
decision was unjustified on the evidence or an improper exercise
of power, the Court could set aside the decision, refer it for re-consideration
or declare the rights of the parties. Accordingly, the communication
is said to be inadmissible under article 5, paragraph 2 (b), of
the Optional Protocol.
4.3 The
State party argues that those allegations referring to the Commission's
decision are beyond the competence of the Committee and inadmissible
under article 3 of the Optional Protocol. It argues that no evidence
has been supplied that the law in the present case was interpreted
or applied arbitrarily or amounted to a denial of justice. Moreover,
according to the Committee's constant jurisprudence, the interpretation
of domestic legislation is essentially a matter for the State party's
courts and authorities.
4.4 The
State party also contends that the author has failed to substantiate
a claim, and adduces in this respect its arguments on the merits.
As to the procedure followed by the Commission, the State party
notes that the Commission examined all the information placed before
it by both parties, and was not under an obligation to seek further
information. The State party notes that the declarations referred
to by the author are not directly binding upon it, and in any event
are not strictly relevant to an interpretation of the meaning of
article 26.
4.5 On
the substance of the claims of discrimination, the State party argues
that children who manifest behavioural problems, whether disabled
or not, are required to sign behaviour management contracts. These
contracts, which contain achievable elements for all parties, are
a not uncommon tool for dealing with a range of behavioural problems.
They are part both of the education authorities' formal policy framework
and strategy for behaviour management as well as of school principals'
direct legislative responsibility for the good order and discipline
of a school and to maximize all students' learning opportunities.
The contracts are useful for supporting "at risk" students by ensuring
a common understanding of expectations and responsibilities in achieving
the behavioural changes that are required to maintain the student
at school. The State party, referring to a variety of positive psychiatric
studies, points out that such contracts are effective as a collaboratively-developed
document establishing a higher commitment from all parties to fulfil
stated goals. Accordingly, no distinction has been applied to the
author's son which constitutes discrimination.
4.6 In
any event, the State party argues that any distinction was based
upon objective and reasonable criteria, operating in pursuit of
a legitimate aim under the Covenant, that is achieving optimum educational
conditions for the author's son and others. The State party argues
that the terms of the proposed contract, both taken separately and
as a whole, were fair, realistic and achievable. They were based
upon the objective criteria of the behavioural problems of the author's
son and reflected expected behaviour and responsibilities of the
author's son, his parent, the school and the education authority.
4.7 Specifically,
the State party contends that, based upon expert evaluation and
as found by the Commission, the author's son was capable of controlling
his behaviour. The contract recognized an ongoing process would
be required, and provided no more than that he "work to control
his behaviour". The elements of the contract relating to the author
asked her to accept responsibility for her son while not in classes,
to accept the school's procedures and support it in its behaviour
management programme. This sought to engage the author in a constructive
relationship with the school and is consistent with the responsibilities
expected of all parents.
4.8 In
sum, the State party argues that a mutually-developed contract was
expected of the author's son, on account of his behavioural problems
rather than of any disability, as a step towards improving his own
and others' educational environment. The proposed contract contained
terms that were fair and achievable, and were based upon expert
individual evaluation of the author's son and positive psychiatric
assessment of this behaviour management tool in general. Accordingly,
the State party argues that the author's claims of a breach of the
provisions of the Covenant are unsubstantiated, and alternatively
that there has not been any breach of the provisions of the Covenant.
5.1 The
author rejects the State party's submissions, responding with detailed
factual submissions as to the conduct originally giving rise to
the suspensions, and to the medical condition of the author's son.
She repeats her contention that his condition is incurable and that
he is disabled. As to the State party's arguments on standing, she
asserts that her son cannot submit his own claim. She contends,
without supplying any documentation, that her son had appointed
her to lodge the communication.
Issues
and proceedings before the Committee
6.1 Before
considering any claim contained in a communication, the Human Rights
Committee must, in accordance with rule 87 of its rules of procedure,
decide whether or not it is admissible under the Optional Protocol
to the Covenant.
6.2 As
to the State party's contention that the communication has been
insufficiently substantiated for purposes of admissibility, the
Committee notes that the communication centres upon the factual
and evidential evaluation of the condition of the author's son and
of his capacity to control and improve his behaviour. The Human
Rights and Equal Opportunity Commission assessed these and other
circumstances in coming to the conclusion that the author's son
had been treated, as others in like situation, on the basis of his
previous and expected future behaviour, that the contract was reasonable
in the circumstances and that he had not suffered discrimination.
In the light of the findings of the Commission, the Committee finds
that the author has failed to demonstrate that the required contract
was not based upon reasonable and objective grounds, and accordingly
considers that the author has failed to substantiate her claims
for the purposes of admissibility. Accordingly, the communication
is inadmissible under article 2 of the Optional Protocol.
6.3 The
Committee notes the State party's argument that the author lacks
standing to bring the communication, but also considers that there
may be doubts in the circumstances as to whether the son was in
a position to supply formal authorization. However, in the light
of the Committee's findings above, it is unnecessary to address
that or any other remaining argument on admissibility that has been
advanced.
7. The
Committee therefore decides:
(a) That
the communication is inadmissible under article 2 of the Optional
Protocol;
(b) That
this decision shall be communicated to the author and to the State
party.
______________
* The following members of the Committee participated in the examination
of the present communication: Mr. Abdelfattah Amor, Mr. Prafullachandra
Natwarlal Bhagwati, Mr. Maurice Glèlè Ahanhanzo, Mr. Louis Henkin,
Mr. Eckart Klein, Mr. David Kretzmer, Mr. Rajsoomer Lallah, Mr.
Rafael Rivas Posada, Sir Nigel Rodley, Mr. Martin Scheinin, Mr.
Hipólito Solari Yrigoyen, Mr. Ahmed Tawfik Khalil, Mr. Patrick Vella
and Mr. Maxwell Yalden
** The
text of an individual opinion signed by one committee member is
appended to this document.
[Adopted
in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian
as part of the Committee's annual report to the General Assembly.]
Appendix
Individual opinion by Committee member Mr. Abdelfattah Amor
I do not
agree with the argument on the inadmissibility of this communication
as accepted by the Committee. The communication should have been
declared inadmissible on other grounds which are a precondition
for its consideration, namely, that the mother (Ms. F) does not
have the authority to represent her son (C).
1. C was
already of age when the communication was submitted to the Committee
in 1998;
2. Ms.
F has not been given power of proxy by her adult son for this purpose;
3. Although
C appears to have behavioural problems, no document from a competent
authority establishes that he has a handicap or a statutory disability;
4. In any
case, the mother's assertion that her son is handicapped is not
sufficient for him to be duly represented by her before the Committee.
