Coomaraswamy v Campbelltown Anglican Schools Council

Alleged conduct

1. The applicant summarised the conduct about which he complains as comprising six matters. The first is that the principal of the school in which he was undertaking a practicum placement chose a supervisor, Mr Brett Gillies, a teacher of Irish background, who, in the applicant's view, was incompetent. Secondly that the head teacher, Ms Lisa Binskin, borrowed his first practicum report which he passed and that report fell into the hands of Mr Gillies and his wife. Although the applicant said he needed it back it was not returned to him. The applicant says that he knows Mr Gillies was incompetent because he looked at the report and copied it.
2. Thirdly, the applicant says that on 21 September 2012 Mr Gillies announced that he was enrolled to do a maths degree. The applicant commented that Mr Gillies was not as qualified as him as he did not even have a basic undergraduate degree in mathematics. That fact, he said, contributed to his view that Mr Gillies was incompetent.
3. Fourthly, the applicant says that he was required to perform certain tasks at the school which were designed to keep him busy and which had no practical use. One task was that he was to attend lunchtime prayer group meetings and the other was that he was to attend morning staff meetings. In his view, neither of those activities was necessary.
4. The fifth matter is that the school breached the policies in its handbook by, for example, failing to contact the people that it was required to contact when the realisation came that the applicant was on the path to failure. The applicant also suggests other infringements which were not detailed at the hearing.
5. The sixth matter is that the final report relating to the applicant dated 21 September 2012 was not shown to him before it was sent to UNSW and the outcome of that matter was that he was unsuccessful.

Merits of the complaint

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. I understand the applicant's complaint to be one of direct race discrimination as defined in s 7(1).
7. 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.
8. 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".
9. 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.
10. 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.
11. 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."
12. 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.
13. 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.

Orders Leave is refused for the applicant's complaint of race discrimination to proceed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 December 2015