Amponsem v Anglican Schools Corporation [2024] NSWCATAD 194 | Case summary

What does "on the ground of race" mean in the AD Act?

As may be seen above the first question s. 7 requires to be answered is whether the conduct was "done on the ground of the person's race". Neither party made submissions directed to the legal principles relevant to that issue. There are numerous variations and permutations of this expression "on the ground of…" and similar expressions to be found in the State and Commonwealth laws that deal with race discrimination and racial vilification. In some states the expression used is that the offending act needs to have been done "on the basis" of an attribute, such as race.
Courts have adopted a purposive approach to interpreting this requirement. Courts have focused on the 'essential nature' of the respondent's conduct, rather than the motive or intention of the respondent, as this approach assists in eliminating racial discrimination in all its forms and manifestations.
In the context of a case concerning Sections 9 and 11-16 Racial Discrimination Act 1975 (Cth) in Wotton v Queensland [No 5] (2016) 352 ALR 146 [534]- [540] (Wotton) Mortimer J identified what she said was the outcome-based limb of s 9 focuses on the 'purpose or effect' of the relevant act on the human rights of the relevant person or group. Her Honour emphasised that s 9 focuses on the 'actual outcome', or the practical consequences, of the act, rather than the motive or intent of the respondent. In relation to the word 'effect', her Honour stated that a 'qualitative assessment of the impact of conduct' is required. This necessarily involves examining the circumstances surrounding the relevant act, including its consequences for the complainant. Her Honour emphasised that s 9 is concerned with achieving substantive, rather than merely formal, equality.
Wotton involved a claim of racial discrimination made against members of the Queensland Police Service ('QPS') regarding their treatment of Aboriginal people during a period of heightened tension between the Aboriginal community and police in a remote community. Affirming the principles outlined above, Mortimer J stated at p 289 [553] that the existence of 'laudable motives, appreciable difficulties or understandable dilemmas [on the part of the QPS] will not prevent or preclude a contravention of s 9 where it can nevertheless be said that the impugned conduct … was based on race'.
In Wotton, Mortimer J said at [551]- [553] interpreted 'based on race' as focusing on the 'essential nature' of the relevant act. Her Honour held that the character of the act must be determined by examining all the surrounding circumstances, including the consequences of the act.
The reference to race need not be explicit for a statement to be based on race. In Wotton, Mortimer J said at 290 [559], quoting Qantas Airways Ltd v Gama (2008) 167 FCR 537 at 564 [76] (French and Jacobson JJ) The making of a remark is an act. It may be that the remark involves a distinction because it is made to a particular person and not to others. The remark may convey no express or implicit reference to the person's race, colour, descent or national or ethnic origin. Nevertheless, a linkage may be drawn between the distinction effected by the remark and the person's race or other relevant characteristic by reason of the circumstances in which the remark was made or the fact that it was part of a pattern of remarks directed to that person and not to others of a different race or relevant characteristic. Where the remark, critical of one person in a group but not others, expressly or by implication links the criticism or denigration to that person's race then that linkage establishes both the distinction and its basis upon race.
As mentioned above, Mortimer J adopted an approach that focuses on the essential nature of the relevant act, rather than the respondent's motive or intention. In particular, her Honour noted that 'the basis of the impugned conduct must not be conflated with intention or subjective purpose [of the alleged discriminator]'.
Although the language to be found in the AD Act of something being said "based on race" is linguistically different prohibitions of statements "done on the ground of the person's race" (Racial Discrimination Act 1975 (Cth)) or said "on the basis" of race (Anti-Discrimination Act 1991 (QLD)), it does seem to us that for present purposes, the question remains the same or substantially the same, focusing on what is the 'essential nature' of the relevant act. To be determined by examining all the surrounding circumstances, including the consequences of the act.
Applying these principles here, it is clear in our view that the comments were made on the basis of race because self-evidently they concerned her race and skin colour and what effects these have brought upon her. That was the precise point of the questions asked of her. The school did not make any submission on this issue or submit anything to the contrary.
There was no doubt that the applicant was upset by what she heard. We also accept that Mrs Hastie had no ill intent in using those words. That of course is not the end of the matter because it is well accepted that motive or intent are not relevant or determinative of whether unlawful discrimination has occurred.
Having regard to the essential nature of the relevant act, rather than Mrs Hastie's subjective motive or intention or purpose we find that what was said by her was an act "done on the ground of the person's race" and it was objectively concerned with a characteristic that appertains generally to persons of the applicant's race or a characteristic that is generally imputed to persons of that race.

What does treating a person less favourably and subjecting someone to detriment mean in the AD Act?

As may be seen above the provisions relied on here as having been infringed require that the conduct constitute treating the student "less favourably than" in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race and "subjecting the student to any other detriment". That is the real point of contention in this case.
Neither party made submissions directed to the legal principles relevant to those issues and we were referred to no authorities on the issue. There are numerous variations and permutations of the expression treating a person "less favourably" and subjecting someone to detriment.
Detriment is not defined in the AD Act however there are authorities which suggest that it is placing a complainant "under a disadvantage of a matter of substance" (Bogie v University of Western Sydney (1990) EOC 92-313) or "suffers a material difference in treatment" (Bailey v Australian National University (1995) EOC 92-744) which is "real and not trivial" (Sivanathan v Commissioner of Police (NSW) (2001) NSWADT 44. See also Damiano v Wilkinson [2004] FMCA 891.
It is a question of fact for the relevant court or tribunal to determine whether a respondent's treatment of the complainant was less favourable than the respondent's treatment of the comparator. It was said by the NSW Supreme Court in Haines v Levies (1987) 8 NSWLR 442 at 458-9 that the assessment is without question an objective one. In that case Street CJ held at P 458-9; "In the present case the circumstances affecting both Melinda Leves and her brother when they sought enrolment at their respective high schools were in all respects identical. The fact that they were twins living together in their parents' home covers almost all of the relevant elements necessary to place them in identical circumstances. Each wished to go to a single sex high school. The Department provided a single sex boys' high school and a single sex girls' high school in geographical proximity to each other, both of which were equally accessible to Melinda Leves and to her brother. There was a difference in the curriculum available in the girls' high school and the curriculum available in the boys' high school. Expressed in terms of s 31A(2) Melinda Leves was denied access to the full spectrum of the curriculum provided by the Department to pupils at the boys' high school. But whilst it is clear enough that the curricula as between these two high schools do differ, mere difference is not enough. It must be shown that the difference is detrimental to the party complaining. This element of detriment pervades the whole field of anti-discrimination laws: see, for example, Ministry of Defence v Jeremiah [1980] 1 QB 87 at 104. The detriment put forward in the present case related to the quality of the educational qualification that might be attained by Melinda Leves as a pupil at the girls' high school in comparison with pupils at the boys' high school."
Kirby JA said at P 471; "it may be important, in the approach which the Tribunal takes to s 24, in the context of education, to be alert to the dangers of treating the phrase "less favourably" as denoting the necessity of completely uniform and identical treatment for persons of the opposite sex. Far from advancing the objects of the Act, such an approach could undermine its purposes. The easiest way to secure the absence of discrimination on the ground of sex in education would be to abolish single sex schools".
By analogy it may be accepted that it is not a requirement of the AD Act that there be completely uniform and identical treatment for persons of different race or ethnic background lest different treatment be treated as treating on group "less favourably." It must be shown that the difference is detrimental to the party complaining.
It has also been accepted in other jurisdictions that what is required is determining whether the consequences of the treatment are adverse to the complainant's interest or disadvantages them, and of course, the second aspect as to whether the dealing has occurred because of a relevant attribute of the complainant. See, for example, Lewin v ACT Health & Community Care Services [2002] ACTDT 2 [47]; Edgley v Federal Capital Press of Australia [2001] FCA 379 [53]- [54]; Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132.
Unfavourable treatment is likely, therefore, to occur where the treatment and its consequences are, or would be, unfavourable or adverse to the complainant. See Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132.
In Kuyken v Lay (Human Rights) [2013] VCAT 1972, VCAT was satisfied a direct threat of disciplinary action could amount to unfavourable treatment (paragraphs 113-114). In the matter of Jemal v ISS Facility Services Pty Ltd (Human Rights) [2015] VCAT 103, VCAT observed unfavourable treatment can include attribute-based harassment or bullying, being subjected to humiliation, or being denied a benefit that is offered to others.
However, not all adverse conduct or decisions will be discriminatory. In Sinopoli v Harrison (Human Rights) [2017] VCAT 355, VCAT concluded that a doctor's decision to not offer treatment to a patient because of the risks involved was not unlawful discrimination based on a patient's disability. It held that a clinical decision based on medical evidence may be right or wrong as a clinical decision, but it is not unlawful treatment. It was a recognition of the limits of medical science [53]. Further, VCAT found that it was not unlawfully discriminatory to withhold medical treatment on the basis that it would be too risky or of no benefit, even if that decision related to a protected attribute, such as the patient's weight [62]- [63].
A recent Victorian example of unfavourable treatment in the provision of services where the treatment was marginally or minimally unfavourable can be found in ASQ v Harcourts Rata and Co Pty Ltd [2022] VCAT 139. There VCAT found that a real estate agent had directly discriminated against the applicant at an open inspection of a property by requesting that the other party provide evidence of a medical exemption from wearing a mask as a term of entry [31]. It was the request for a certificate proving his exemption from the requirement to wear a mask which was the offending act, and the applicant did not claim that the respondent discriminated against him by refusing him entry to the property. VCAT found that by asking for a medical certificate when the applicant was not required to provide one, the respondent discriminated against the applicant on the basis of his disability. In so finding the Tribunal did not refer to and case law authority that might assist us here. However, Senior Member Burdon-Smith found that the circumstances did not warrant any further action and declined to order a remedy. VCAT's reasons included that the respondent's staff were attempting to comply with recently imposed restrictions and the applicant did not give the respondent an opportunity to make reasonable adjustments for him, such as holding a private inspection.
There is authority that a subjective element to the 'unfavourableness' of the treatment i.e. the view of the victim of the treatment, is relevant to the decision-maker's assessment of whether the treatment is unfavourable. Whether there was detriment' for example, must depend to an extent on how the treatment affected the victim; NC v Queensland Corrective Services Commission [1997] QADT 22. (NC). As that decision demonstrates, treatment may also be 'unfavourable' if a person is singled out, or treated differently, because of a particular attribute. For example, in NC the complainants, HIV affected prisoners, argued that discrimination on the ground of impairment occurred in a number of areas including the work area and the accommodation area. The question arose as to whether a refusal to allocate an HIV affected prisoner to certain work duties within a prison is capable of amounting to the treatment of a worker unfavourably in some way in connection with his or her work. Member Keim SC said; There may be occasions when it is appropriate to look at treatment cumulatively in order to decide whether a particular person is being treated less favourably. For example, it may be necessary, as part of a desired form of favourable treatment, that certain minor inconveniences are accepted. For example, it may be necessary, to receive a desired medical treatment, to forgo certain sporting activity held at the same time. I do not think that this is the situation revealed in the evidence before me. While the supply of extra blankets and extra more nutritious food no doubt constitutes welfare measures that are most appropriate, it has never been part of the respondent's case that segregated housing was essential for the delivery of those welfare measures. Nor does the evidence reveal that to be the case. It does not appear to me that the circumstances applying at Moreton and even at Numinbah are such that one should weigh the positive welfare measures against what would otherwise be less favourable treatment to ascertain the net result. I considered the concept of less favourable treatment in the context of an impairment constituted by intellectual disability in the case of P v. Director-General, Department of Education, a decision delivered on 13 March 1997. At p. 34 of my reasons for the decision in that matter, I set out a helpful passage from a decision of Professor Aston in the ACT Equal Opportunity Tribunal in Dalla Costa v. The ACT Department of Health (1994) EOC 92-633 at p. 77,370 in that report. Professor Aston places emphasis on whether or not the parents of a child with disability in that case had a choice as relevant to the issue whether or not the suggested form of treatment was more or less favourable. At p. 31 of my reasons in P, I addressed the concept of less favourable treatment in terms of the facts in that case and said as follows: "I find that placement at Aitkenvale did constitute less favourable treatment. It was less favourable because the relevant parent of P, in this case, his mother desired that the education he receive be provided at his local school. P's mother also gave evidence to the effect that P himself did not want to change schools. While I do not accept that P's mother is necessarily accurate in all of her evidence setting out P's own desires, I do accept that there was necessarily a disadvantage in being forced to change from a school where one had a certain familiarity and various levels of attachment to existing teachers and students and other staff to one where one was a new enrollee. Thirdly, and to some extent this is a restatement of the first aspect, whereas the other students without the impairment were able to receive an education suitable to their needs at their local school and a local school of their choice, P was placed in a position where he could only receive education adjudged suitable to him at a school which neither he nor his parent chose and which was not his local school. For these reasons, the change of placement from Rasmussen to Aitkenvale constituted less favourable treatment." It seems to me that subjective factors are very important in cases under the ADA. Frequently, the mere fact of being treated differently because of one's impairment (or other defined attribute) will constitute by itself unfavourable treatment. This does not mean that objective reality is not important. The person is not discriminated against simply because he or she perceives him or herself to be treated differently. However, where a person is in fact treated differently, then that different treatment will, on occasion, be capable of being unfavourable treatment because it is different. The very fact of being singled out will and will be perceived as being an unfavourable way of treating the person in question. Singling out does not have to involve less comfort, less food or less money to be unfavourable.
By way of comparison, Section 8 of the Victorian Equal Opportunity Act 2010 uses the term 'unfavourable treatment' but does not define it either. It has been held to bear its ordinary meaning, which includes adverse treatment. See Al Abody v Director of Housing (Human Rights) [2017] VCAT 431 [37], citing Aitken v State of Victoria - Department of Education & Early Childhood Development [2012] VCAT 1547.
In Slattery v Manningham CC (Human Rights) [2013] VCAT 1869, VCAT determined the concept of 'unfavourable' requires simply 'an analysis of the impact of treatment on the person complaining of it' [53]. It does not require an assessment of the way in which a person who has a particular attribute is treated, compared with a person without that attribute or who has a different attribute, as was the case under the 1995 Act [51]-[53]. Senior Member Nihill noted, however: This analysis may be informed by consideration of the treatment afforded to relevant others, particularly in circumstances where it is not clear whether the treatment is unfavourable [53].
In Tsikos v Austin Health [2022] VSC 174, the Supreme Court of Victoria endorsed the Slattery decision [45], noting that although VCAT is no longer required to make a comparison, in many cases 'a comparison will provide evidence that is probative of whether a person was treated unfavourably, and whether the treatment was because of a particular attribute' [47].
In determining unfavourable treatment, it is, therefore, not necessary in all cases to determine whether a complainant with a particular attribute has been dealt with less favourably because of that attribute when compared with persons without that attribute.
This has not been an easy case to decide because views could easily differ as to whether objectively well-intentioned questions by a school principal to a student of diverse racial background, when discussing and encouraging diversity in a school, was discriminatory in the relevant sense. As noted above, section 7 of the AD act refers to the treatment of a person less favourably, than, in the same circumstances or in its circumstances which are not materially different, than the principal treats or would treat a person of different race, and section 17 adopts the language of whether the student was subjected to detriment.
The principal did not provide an affidavit or provide a statement for the purposes of the hearing and there is nothing from her to describe what she was thinking or doing, or what reaction she observed from Nyah. That task was left to be described by Mr Peter Elliott, the Executive Manager of Governance and Legal with the respondent, who recounts things that he has been told, or resulted for an investigation by someone associated with the school. Although this is a somewhat unsatisfactory way to present the evidence relied on by the school, no one suggested that we should draw any adverse inference from that fact. There was no challenge to what Mr Elliott said concerning the principal including her thoughts and intentions around the events of that day. His unchallenged evidence on this issue, and which we accept, is that Mrs Hastie had been the principal at that school since January 2020 and that she had almost thirty years of experience as an educator and had always prioritised the wellbeing of students throughout her career. Prior to her appointment as principal of the school, she had filled senior roles at other schools across Sydney and was a person who actively encouraged culturally diverse children and their families. She had been involved in developing particular programs at this school, which involved encouraging cultural diversity and harmony between diverse groups.
In relation to what was said in the car that day Mr Elliott said, and we accept, that Mrs Hastie's motivation was framed by a conversation regarding the college's inaugural Harmony Day and its celebration of Australia's diverse cultural makeup and she asked the questions which she did because she needed to understand the experience of students with such diverse cultural backgrounds as Nyah had. The evidence is, and we accept, that she had no intention to cause any discomfort to Nyah and that once it was brought to her attention on her return from the events that day that Nyah was upset by the conversation that had taken place, she immediately took steps to give the apologies, which have been referred to earlier.
The evidence from Mr Elliott otherwise is that after the report came to the school, an investigation was conducted. The findings of that investigation were that she had not intended or realised that her conversation had caused upset or offence and regretted the distress which had been caused. The school decided that what was said did not meet the threshold for conduct reportable to the relevant model authorities. The principal was invited to undertake further cultural sensitivity training which she has since undertaken.
One matter about which there seemed to be some sensitivity from each side was whether Nyah and the principal had a close relationship. We accept Nyah's evidence that it was not a close personal relationship and that in fact they had not had very many dealings with each other in the first few months of 2023 as a result of the fact that Nyah was a high school prefect and therefore dealt with the principal as one of the school leaders. Nyah described the relationship as a student teacher bond but nothing deep. The principal did not teach any of her classes and there were no personal encounters between them apart from the dealings with each other in their formal roles.
As we have already recognised, the principal was motivated not by ill will, but rather by the desire to understand matters at the school that concerned diversity and how diverse the students were treated. The principal had those intentions in mind when asking the questions that she did. In those circumstances the question of whether they were close or not close is beside the point. Most certainly there had never been any negative treatment of Nyah by the principal in the past and the fact that Nyah was a respected student leader explained why she was heading to the International Women's Day function and showed the respect that the school held for her as part of the student leadership group. It can be readily inferred that the principal treated her in the same way.
As for the consequences of the events that day, Nyah gave evidence that she and her brother, who was also at the college at that time, had been subjected to what she described as racist comments by other students. There are generalised references to disputes, which the school had concerning the conduct of her brother and Nyah had been taken out of class at times to help deal with the problems associated with that. She also suggested that after the subject incident occurred, she was also taken out of class to deal with such problems concerning her brother and she had to deal also with the principal while the investigation into the principal's conduct was underway. She felt humiliated and felt this was in breach of the duty of care that her teachers owed to her.
Her evidence, which we accept, is that because she was singled out as the only person in the car who was asked any of these kinds of questions and of course that the questions occurred in front of these other students, that she felt isolated and embarrassed in front of her peers and she felt different to the other students. Significantly, she took the comments to mean that it was implied that she did not belong there or that it might be felt by students that she did not belong there. She regarded the questions she was asked as using inappropriate language and made her feel that she was different to other students in having to answer questions like this, which the other students would never be asked.
She felt that it had been implied that there were problems that the school had with her brother and herself being there. And clearly there was sensitivity held by her because of that. The consequence was, that notwithstanding that the questions were asked in a well-motivated way, since they were only asked of Nyah, with her student leader colleagues being present, the comments were capable of having the effect of treating her less favourably than those other students who were not called upon to provide answers to similar questions or discuss similar problems Sadly, asking her if she had ever felt left out due to being coloured and whether, she had ever wanted to leave the school or felt like it wasn't the right fit for her was capable of implying that perhaps there were reasons why that might have occurred and that she was inferior or different or had been left out.
We find that asking a student if she had ever found it hard to fit into the college due to the colour of her skin, as well as asking whether she had ever felt left out due to being coloured, as well, in that context, of asking if she had ever wanted to leave or felt like that school was not the right fit for her was racial discrimination towards her.
We have no doubt that Nyah would have felt and indeed did feel offended and humiliated as a student leader to be asked questions which implied that she was different and had been exposed to racism, felt left out, or that she did not belong at the school.
In the end on balance, we are satisfied that the making of these statements in context was discriminatory in the relevant sense that we have discussed above.

Amponsem v Anglican Schools Corporation

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