The case that changed me

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Human Rights Commissioner Ed Santow recalls one of his first cases involving a young girl with spina bifida.

Interview by Jane Southward

It was the late 90s. I was 20 years old, had just reached the end of my second year studying law at Sydney University, and had landed an internship at the Public Interest Advocacy Centre (PIAC).

I had a vague sense that I wanted to do law that helped people, but that felt so far away. At PIAC I was doing the most junior stuff: photocopying, legal research and making cups of tea.

It was an amazing opportunity, though, and thanks to director Andrea Durbach I was given the chance to see what the law could do to help someone.  Andrea put me on the case of Scarlett Finney and said it was not going to be like LA Law, but in this case it was.

Scarlett was seven, had incredible locks of curly hair, and also happened to have spina bifida. Her parents had enrolled her in the Hills Grammar School, but when the school realised Scarlett had spina bifida, they wouldn’t accept her.

Scarlett and her parents were devastated. The school’s decision was based not on some real practical problem; it was based on historical prejudice about what disabled people could and could not do.

Scarlett was an incredibly capable, energetic kid – and super bright. There were very few adjustments the school would have had to make to enable her to attend and do well.

This case would prove crucial in applying the then new Disability Discrimination Act 1992 (Cth) to the education context. This test case paved the way for a more equal school system – one where young people with disability are judged primarily on what they can do, and where more effort is made to accommodate any particular needs arising from a kid’s disability.

One of the most important things drummed into you at law school is that a lawyer must be the dispassionate legal expert. Yet here was a case where your heart could only break.

It was unfair and humiliating for a bright, capable child to be told she was not up to attending a school where she could thrive.

As a budding human rights lawyer, I learned that having a good heart was important but not enough to get justice for my client. There is no substitute for meticulous legal analysis and to being completely prepared for a hearing.

The case came to the then Human Rights and Equal Opportunity Commission first, where Graeme Innes was the Hearing Commissioner.

Graeme’s skilful judgment was crucial in resolving it, largely through a conciliation process. The Commission found that the Hills Grammar School had unlawfully discriminated against Scarlett, and it was ordered to pay Scarlett $42,628 in compensation. The school appealed to the Federal Court but lost.

My role in this case was very small, but the effect it has had on my approach to law has been enormous. It was vital because I was learning not just how the law works, but how to be effective in a case where I cared deeply about the client and the issues at stake.

I learned that being a good lawyer doesn’t mean being a robot, but it does mean channelling your emotions carefully.

I also learned that our role wasn’t to speak for Scarlett but to help give her a voice. When I met Scarlett, it was immediately apparent she was completely capable of speaking for herself and part of what we could do was help give her a platform so she could explain her experience and how it was affecting her.

There’s a bittersweet postscript to the Scarlett Finney case. Because the case took about a year to resolve, Scarlett couldn’t wait for her schooling and was enrolled in a different school. The fact she thrived in another school proved our point that she could have thrived at Hills Grammar.

This case reminds us that we come in so many different shapes and we should celebrate difference. We should also call out discrimination and other forms of prejudice that undermine our commitment to equality. That’s what my job as Human Rights Commissioner is about.