(d) that the requirement or condition was not reasonable having regard to the circumstances of the case.
See generally State of New South Wales v Amery [2006] HCA 14; (2006) 230 CLR 174 at [2] per Gleeson CJ and at [50] per Gummow, Hayne and Crennan JJ; Amery v State of New South Wales (Director-General NSW Department of Education and Training) [2004] NSWCA 404 at [10] per Beazley JA.
38 An applicant must show in addition that such discrimination engaged one of the proscriptions in Part 2, Divisions 2 and 3. Notably, an applicant is not required to show that he or she was subjected to differential treatment on the ground of his or her race. In his points of claim ZG had characterised the relevant requirement or condition for the purposes of his indirect discrimination claim as a requirement or condition of his sons' attendance at the school that they undertake their schooling in a school where racism was tolerated.
39 The plaintiffs submitted that such a characterisation is supported by analogous decisions, and that it is well established that the words "requirement or condition" should be construed broadly so as to cover "any form of qualification or prerequisite". See in these respects Clarke v Catholic Education Office [2003] FCA 1085; (2003) 202 ALR 340 at [42] - [45] and Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121 at [98] - [109]; Australian Iron and Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165 at 168; Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 393.
40 ZG also alleged further that that was a requirement or condition with which his sons were unable to comply, that a substantially higher proportion of persons who are of a different race comply or are able to comply with it, that the requirement or condition was not reasonable in the circumstances and that in requiring his sons to comply with it the defendant subjected them to discrimination on the ground of their race by subjecting them to a detriment and thereby contravened s 17(2)(b) of the ADA. The ADT did not consider those aspects of ZG's claims.
41 In these circumstances the plaintiffs submitted that it followed that the ADT had not discharged its function of determining whether all of ZG's various complaints should be dismissed or had been substantiated: s 108 of the ADA. Furthermore, the appropriate course for the Appeal Panel in those circumstances was to remit the matter to the ADT for further hearing (or extend the appeal to the merits under s 113(2) of the ADT Act). Instead, as already noted, the Appeal Panel made orders dismissing ZG's complaints of discrimination in substitution for the orders made by the ADT.
42 The Appeal Panel had the power to make various orders, including an order in substitution for an order made by the ADT: s 114. However, those powers are conditioned upon the Appeal Panel forming the opinion that such an order is "appropriate". The plaintiffs submitted that the Appeal Panel could not have been satisfied in the circumstances that the substitution of orders dismissing ZG's complaints of race discrimination was "appropriate" for the purposes of s 114.
43 Alternatively the plaintiff submitted that the Appeal Panel was required by the ADT Act to "determine the appeal": s 114(2). The exercise of that function demanded that the Appeal Panel consider ZG's claims to the extent that they were relevant for the purposes of the appeal. In other words, the ADT Act made the relevance of those matters mandatory. A failure to consider those matters, so the plaintiffs argued, necessarily involved a failure by the Appeal Panel to complete the jurisdictional task required of it: s 114(1): see Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at [42] and Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287 at [90].
44 The plaintiffs' submission was that the Appeal Panel did not consider the real questions that it was duty bound to consider and that in the circumstances that amounted to a constructive failure to exercise its jurisdiction: Sellamuthu (supra) at [21] and Gales Holdings Pty Ltd v Minister for Infrastructure and Planning [2006] NSWCA 388 at [174]. According to the plaintiffs, the Appeal Panel therefore erred in the ways adumbrated in grounds 10 to 15 inclusive.
The defendant's submission
45 The defendant drew attention to that part of the ADT's decision that dealt with ZG's contention that by permitting one of his sons to be subjected to racial abuse the school had discriminated against the sons on the basis of race. The Appeal Panel's reversal of that conclusion is the subject of the plaintiffs' grounds 1 to 7 of appeal. The defendant's submissions review pars [76] to [79] and the discussion and conclusions of the ADT between pars [80] and [99] under the heading "Did [the school] and/or the Department unlawfully discriminate against the ZG children on the grounds of race?"
46 The significant findings made by the ADT themselves led to three findings of fact, all of which, according to the defendant, appear in par [98] of the ADT decision. That paragraph is as follows:
"[98] If the legislation, anti-racism policies of [the school] and the Department, and ARCO training were to be more than mere rhetoric, [the school] and the Department needed to create at [the school] an environment in which, so far as possible, 'childish' talk which was racist was discouraged. After considering all the evidence, the Tribunal finds that despite the policies, ARCOs, investigations and recommendations, the teachers at [the school], including the ARCO-trained Mr Ryan and Mrs Ives, failed to recognise as racist, and/or to discourage as racist, the remarks made by the children at school on 11 March 1999 and in the library incident, and made by a child or children saying 'ching chong chinaman'. Further, the Tribunal is satisfied that [the school] did not comply with its anti-racism policy in respect of the said remarks and subsequently, did not implement the Department's recommendations. Further, the Department failed to ensure that the ARCOs Mr Ryan and Mrs Ives were fulfilling their role and to monitor that its recommendations were acted upon." (Emphasis added).
47 These findings are respectively to be found in the second, third and fourth sentences of that paragraph. The defendant submitted that, accordingly, the ADT had found as facts that the school and the Department had committed three failures, emphasised in the preceding quote. Armed with those factual findings, the ADT then moved to their proper legal characterisation at par [99]. The paragraph uses the word "failures" and the defendant contends that that was necessarily a reference to the three emphasised failures identified in par [98].
48 The ADT characterised these failures as not being a breach of s 7 but as a breach of s 17. This was legally impossible: satisfaction of the definition in s 7 is the sine qua non for a breach of s 17. The ADT's finding, if left undisturbed, inevitably meant that there could have been no breach of s 17. The plaintiffs have argued that the ADT's finding that there had been a breach of s 17 therefore showed that its finding that there had been a breach of s 7 was suspect. The only safe course, according to this argument, is to start over again.
49 The defendant contends that this argument has no merit unless par [99] itself contained findings of fact. However, par [99] contains no findings of fact. It is concerned rather with the legal characterisation of the three failures identified at par [98]. The defendant submits that the plaintiffs' argument that par [99] contains a finding of fact about racial discrimination should be rejected. Moreover, it should be rejected as well because if it were a finding of fact it had no basis in any of the other facts found by the ADT at pars [95] to [98]. Those findings of fact contain nothing that supports an argument that there was a breach of s 7.
50 The defendant submitted accordingly that grounds 1 to 7 ought to be dismissed.
51 With respect to the balance of the plaintiffs' grounds the defendant submitted that the plaintiffs ought not to be permitted to run this argument. During the oral hearing before the Appeal Panel it was apparent that the plaintiffs were of the view that the indirect discrimination case had been dealt with at par [99]: see T10.44 - 11.12. It is also clear from ZG's written submissions to the Appeal Panel that he considered that the ADT had dealt with the claim of indirect discrimination. Indeed, his contention was that the Appeal Panel had not adequately or correctly dealt with the claim of direct discrimination. The defendant concedes, as the plaintiffs submit, that the Appeal Panel erroneously came to the view that indirect discrimination had not been raised before the ADT. However, if the plaintiffs' case before the Appeal Panel was that par [99] was a positive finding on their indirect discrimination case, there was no occasion to make such a finding. In effect the plaintiffs have waived an entitlement to raise such an argument by claiming that the indirect discrimination point was determined in their favour by the ADT. It is therefore inconsistent now to argue that the ADT did not deal with point.
52 Alternatively, even if the plaintiffs were permitted to raise the argument, the defendant contends that it should not succeed. As the defendant has argued in its notice of contention, the only outcome legally open to the Appeal Panel, had it considered the question of indirect discrimination, would have been to hold that the argument was wrong and to have dismissed the plaintiffs' appeal. This is for three reasons.
53 First, whatever else a "requirement or condition" within s 7(1)(c) comprehends, it must be something for which the notion of compliance makes sense. The proposed requirement or condition cannot be a requirement with which persons of the Chinese race were required to comply. It might be different if the relevant requirement or condition was that they undertake their schooling in a school where racism against Chinese was tolerated. Were that so the case might more closely resemble Catholic Education Office v Clarke (supra). The defendant submits that it is doubtful that the Full Court would have reached the same conclusion in that case if the condition or requirement had been that the deaf pupil had been required to undertake his education in an environment where discrimination against deaf people was tolerated.
54 Secondly, unlike Clarke, where the imposition of the condition could not have been plainer, the plaintiffs here do not explain how or why the requirement or condition was imposed. The plaintiffs' case was explained at pars 211 to 232 of ZG's written submissions to the ADT. Nowhere in those submissions is there any explanation of how the "requirement or condition" was imposed or what might have been said to constitute it. The points of claim do not assist.
55 Thirdly, the defendant argues that there is a logical difficulty with racism being identified as the disability or benefit for the purposes of s 17. That section makes discrimination on the basis of race unlawful. It requires the imposition of a detriment or the denial of a benefit. That detriment or denial of a benefit cannot itself be discrimination on the basis of race. If it were otherwise the provision would be fatally circular. The need for a requirement or condition must necessarily be linked to the plaintiffs rather than described in the general terms of the legislation itself.
56 The defendant submitted further that for the plaintiffs' contention to have succeeded in the ADT, or as restated in these proceedings, it is necessary to accept that the meaning of the word "tolerated" is no more than the simple fact of the occurrence of racist conduct. The Macquarie Dictionary defines "tolerated" as "(1) to allow to be, be practised, or to be done without prohibition or hindrance; permit, (2) to bear without repugnance; put up with". The factual findings of the ADT at par [98] did not and cannot sustain a finding that the school was a school where racism was tolerated, as that word is properly understood.
57 Furthermore, even if the defendant were wrong about the meaning of the word "tolerate", the real issue is as identified by the High Court of Australia in Amery (supra) at par [65]:
"[65] However, it is not the mere existence of a requirement or condition to which Pt 3 Div 1 of the AD Act is directed. It is discrimination which may involve the imposition of a requirement or condition. The question that must be asked in applying ss 24(1)(b) and 25 is whether the perpetrator engaged in a proscribed form of discrimination, not "what was the requirement or condition in this case".
58 The ADT did not and could not identify any proscribed form of discrimination by the defendant against the plaintiffs. That is to say, at no time was anything done, or required of, or omitted to be done because of the plaintiffs' race. As such, a claim of discrimination, whether it be direct within the meaning of s 7(1)(a) and/or indirect within the meaning of s 7(1)(c) simply could not succeed.
59 The defendant submitted that in all of these circumstances the proceedings should be dismissed.
Consideration
60 The right to appeal to the Appeal Panel is provided for in s 115 of the ADA. It is as follows:
" 115 Appeals to Appeal Panel against decisions of Tribunal