Coomaraswamy v Campbelltown Anglican Schools Council

ex Tempore reasons for decision

DEPUTY PRESIDENT HENNESSY: This is an application to the Tribunal for leave to proceed with a complaint under the Anti-Discrimination Act 1977 (NSW) in circumstances where the President of the Board has declined the complaint because he was satisfied that it was lacking in substance under s 92(1)(a). Under s 96 of the Anti-Discrimination Act a complaint referred under that provision may not proceed without leave being granted by the Tribunal.
The principles for granting leave were set out in the case of Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [28] to [38], and commented on by Sackville AJ in Jones v Ekermawi [2009] NSWCA 388 at [48] and following. The relevant test is whether it is fair and just in the circumstances for leave to be granted.
Ms Graycar, representing the respondent, set out a brief history of the background to the complaint from the respondent's point of view in her helpful submissions from para 7 to 16. The respondent is a high school at which the applicant undertook a student practicum as part of his enrolment in a teaching degree at the University of New South Wales (UNSW). He was at the respondent's School undertaking his practical teaching for the period 29 August 2012 to 21 September 2012. No complaint was made to the school about anything that happened during that period prior to the complaint being lodged with the ADB in March 2014. In 2013, it appears from the material in the President's file that the applicant undertook another student practicum which was also considered unsatisfactory as a result of which he apparently failed the unit Professional Experience II and was unable to complete the course that would have qualified him to teach. The UNSW Head of School, Professor Davison, informed him of the decision by email dated 15 June 2013. The applicant sought a review of the Head of School's decision of 15 June 2013, relating to his progress and enrolment, by means of UNSW's internal review procedures. That appeal was unsuccessful. He then appealed against that decision … The focus of concern in that process at both stages, was his more recent practicum, that is, the one that took place at Castle Hill high school in June 2013 which appears to have precipitated the Head of School's decision. In fact, in neither his original communication to UNSW, nor in his later submission to the UNSW Review Committee, does the applicant refer to the respondent or any conduct of the respondent. The appeal was focused only on UNSW and the school at which he undertook his PE 2 placement in 2013 - Castle Hill High School. After his UNSW appeal was unsuccessful, the applicant indicated his intention to pursue the matter by complaint to the Ombudsman. The Ombudsman declined to investigate the complaint, inter-alia on the basis that the University's internal appeal process was transparent and had been followed, and the applicant had been afforded the opportunity to put all relevant circumstances to the University's Complaint Appeals Committee. In the letter he received from the Office of the Ombudsman, he was advised that, as he had raised concerns that Professor Davison of UNSW "may have been motivated by racial prejudice", he could pursue this aspect of his complaint with the ADB. The applicant was dissatisfied with the Ombudsman's decision and sought to have the Ombudsman reconsider the matter. The former Ombudsman, Mr Barbour, wrote to him on 10 February 2014 indicating he did not intend to change the decision declining the complaint and noting that the Ombudsman does not "review the merits of academic decisions in the absence of clear evidence of some procedural or administrative from conduct" … It was after those unsuccessful attempts to seek a remedy at both UNSW and via the NSW Ombudsman that the applicant lodged his complaint with the ADB on 20 March 2014.

Merits of the complaint

In order to substantiate his complaint, the applicant must be able to prove that the school has breached the Anti-Discrimination Act. The President, when referring the complaint, suggested that the alleged breach was to s 17 of that Act. That provision relates to discrimination against students: (1) It is unlawful for an educational authority to discriminate against a person on the ground of race: (a) by refusing or failing to accept the person's application for admission as a student, or (b) in the terms on which it is prepared to admit the person as a student. (2) It is unlawful for an educational authority to discriminate against a student on the ground of race: (a) by denying the student access, or limiting the student's access, to any benefit provided by the educational authority, or (b) by expelling the student or subjecting the student to any other detriment. (3) Nothing in this section applies to or in respect of a prescribed educational authority in relation to such circumstances, if any, as may be prescribed.
The applicant was not a student of the school, he was a student of UNSW. His complaint does not fall within that provision. Nor was the applicant an employee or an applicant for a position with the respondent. There was no employment relationship involved. Accordingly, his claim cannot come within s 8 of the Anti-Discrimination Act which relates to discrimination against applicants for employment and employees.
Another possibility is that the respondent may have been providing a service to the applicant, in which case there could potentially be a breach of s 19: Shvetsova v State of New South Wales (Department of Education and Communities) [2012] NSWADT 253. However, that is not how the complaint was characterised in this case.
While not making a final determination that there is no provision which could possibly have been breached, none is apparent to me on the basis of what the parties have said today. If indeed there is no provision which has potentially been breached, the applicant's case would not disclose a contravention of the Act. The possibility that that is the case is one of the reasons I have refused leave for the complaint to proceed.
The second reason, which is even more significant, is that there is no basis on which an inference can be drawn that a reason for any of the conduct that the applicant has described, was the applicant's race. Section 7, which defines race discrimination states that: What constitutes discrimination on the ground of race (1) A person ("the perpetrator" ) discriminates against another person ("the aggrieved person" ) on the ground of race if the perpetrator: (a) on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, treats the aggrieved person 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 or who has such a relative or associate of a different race, or (b) on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or (c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.
I understand the applicant's complaint to be one of direct race discrimination as defined in s 7(1).
The applicant says that he is Sri Lankan but fails to provide any evidence or mention any circumstance or situation which would lead to an inference that his race was even one of the reasons for any of the conduct that he has outlined.
At one stage when making oral submissions, the applicant said, "I don't think they did that because I was a Sri Lankan." However, later the applicant said that no one treated him as a friend or "one of them". He added, "no one spoke to me and I felt discriminated against".
The applicant has a strong impression or feeling that he has been treated differently because of his race and that is why he was ultimately unsuccessful in his practicum placement. However, that inference cannot be drawn on the basis of the circumstances described in the President's Report and on which the applicant elaborated at the hearing. There has been no direct account of any racial comment or slur being made, and while that is not a necessary factual basis in order to infer race discrimination, it is absent in this case.
The first three allegations the applicant makes all allege that his supervisor, Mr Gillies, was incompetent. The applicant would have to prove that a reason the school assigned Mr Gillies to be his supervisor was because he is Sri Lankan and the school would not have assigned Mr Gillies to supervise a student of a different race. In my view, based on the material in the President's report, that is an allegation that the applicant is highly unlikely to be able to prove if the complaint were to proceed to a hearing.
Even if the applicant was asked to participate in prayer group meetings and staff meetings which he found unnecessary, there is nothing to suggest that a student teacher from a different race would not have been asked to participate in those activities. The applicant also complains about the school not following its own policies and procedures and not showing him the final report before sending it to UNSW. As the respondent submitted at para 25 of their written submissions, "The applicant was given an opportunity to repeat the unit in relation to which he had been assessed as unsatisfactory. He did that in 2013 and the decision in relation to the fail grade and his student status, a decision made by UNSW, was based on the experience at the school at which he did his 2013 practicum: Castle Hill High School."
The respondent sets out at paras 28 to 32 the basis on which it says that the inference cannot be drawn and I adopt those paragraphs in these reasons.
In conclusion, it is not fair and just for this complaint to proceed because it is highly unlikely to succeed if it goes to a hearing. That is firstly because it is doubtful that the Tribunal has jurisdiction to entertain it given that it does not come squarely within any of the substantive provisions in the Anti-Discrimination Act. Secondly, and perhaps more significantly, there is no basis for an inference to be drawn that race was a reason for the alleged conduct.

At a glance

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Before

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Judgment (5 paragraphs)

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Legislation Cited (1)

Cases Cited (2)

Cited By (3)