Sykes v Transport for NSW

NCAT Administrative and Equal Opportunity|2020-08-11

Background facts

Master Sykes attended Wingham Public School in Term 1 2015. He attended Wingham Brush Public School from November 2015 to December 2018.
Apparently, the trigger for the initiating complaint made by Ms Sykes to the Board was the "racially motivated serious physical assault" of her son on 18 December 2018 by students travelling home from school. She alleged that the driver failed to assist her son and left him "on the side of a country dirt road bashed, bleeding and with a serious head injury". She stated that the driver and Buslines should be "criminally reprimanded for refusing to implement any duty of care procedures, failure to act, respond, to notify, report or be responsible or reasonable".
In the initiating complaint, Ms Sykes listed a series of incidents, dating back to February 2015, where Master Sykes was allegedly subject to "race vilification, inciting hatred, severe contempt, ridicule, victimisation, physical abuse, mental abuse, assaults" by primary and high school students travelling to and from school on buses operated by Buslines.
Ms Sykes alleged that Buslines' drivers failed to intervene to prevent her son being abused and attacked. In addition, she alleges that Buslines "instrumentally orchestrated and fabricated accusations of misconduct of inappropriate behaviour" by her son, resulting in him being issued with multiple warnings and suspended from using its services.
Most of the incidents listed by Ms Sykes in the initiating Complaint are alleged to have occurred while Master Sykes was travelling to and from school. However, a small number are alleged to have occurred during school hours, for example: 15 to 27 November 2018: "Constant racial verbal abuse and racial taunting on every bus journey and also during class at school by the same student on the bus, met the teachers and they were aware". 13 April 2018: "…Upon arrival [at school Master Sykes] was immediately physically attacked by 4 boys, instigated by the same boy from the prior day's bus attack. [Master Sykes] ran to hide in the toilets …" 3-4 April 18: "Wingham High School student films [Master Sykes] … uploads it to the internet … Then invokes other students to repeatedly mock complainants name in racially abusive slurs, which continues throughout the day."

Response by the Department of Education to the President

In response to the President, in a letter dated 14 February 2019, the Department denied that it had discriminated against Master Sykes on the ground of race, claiming: 1. While a student at Wingham Public School (January 2015 to April 2015), Master Sykes displayed "behavioural issues". During that period he was reported as being the "instigator/aggressor" in five incidents. None involved race. 2. While a student at Wingham Brush Public School (November 2015 to December 2018), Master Sykes was reported as being the alleged victim in three incidents involving aggressive and bullying behaviour and the alleged perpetrator in 58 incidents involving such behaviour. None involved race. 3. Throughout the period Master Sykes attended Wingham Public School and Wingham Brush Public School, neither he nor his mother reported that he had been the subject of race discrimination. 4. The Schools were nonetheless aware of "isolated incidents" of students teasing Master Sykes about his racial heritage. Those incidents were dealt with promptly. 5. To assist Master Sykes with his "behavioural issues", Wingham Brush Public School implemented a significant number of measures and strategies in consultation with Ms Sykes. 6. In addition, Wingham Brush Public School took various steps to assist Master Sykes with his commute, including arranging a meeting with the Principal of the local high school to discuss incidents involving Master Sykes and students of that school.

Response by Buslines to the President

In a letter in response to the President dated 22 November 2019, Buslines stated: 1. Before being notified by the President of the complaints it had not received from Ms Sykes any complaints of "race discrimination" on behalf of Master Sykes. 2. Its drivers have not reported or heard incidents of racial abuse involving Master Sykes. 3. In the 30 months Master Sykes travelled to and from school on buses operated by Buslines, July 2016 to December 2018, he was found to have breached the Transport for NSW School Student Transport Scheme Code of Conduct (the Code of Conduct) on 19 occasions. On four occasions Master Sykes was suspended from using Buslines' services. Other students have been found to have breached the Code. None as often as Master Sykes. 4. Many of those breaches involved name calling and swearing by Master Sykes and other students. Given that its drivers are at the front of a 12-metre bus carrying 50 plus students, they cannot hear what is said in the rear half of the bus because of background noise.

Response by Transport for NSW to the President

In a letter in response to the President dated 2 December 2019, Transport for NSW explained that during the period of the Complaint, it contracted with Buslines to provide school bus services. It denied being the principal or employer of Buslines, asserting that its actions were not "caught by s 53 of the AD Act". It stated that the basis for the allegation that it "caused, instructed, induced, aided or permitted" Buslines to have breached the Act is not clear.
Transport for NSW pointed out that Ms Sykes made no mention of race discrimination in letters of complaints she sent to it, the NSW Minister for Transport and Prime Minister of Australia, concerning Buslines' decision to suspend Master Sykes from using its services.

The Buslines Complaint

As a first step after identifying the relevant services, Ms Sykes must establish that Buslines refused to provide Master Sykes with those services, or provided him those services on discriminatory terms. If one or both is established, it will be necessary to consider whether the refusal/provision of services on discriminatory terms, amounts to "discrimination on the ground of race". Different considerations apply depending upon whether the Complaint is cast as "direct discrimination" (s 7(1)(a) of the Act) or indirect discrimination (s 7(1)(b) of the Act).
If cast as direct discrimination, Ms Sykes must establish that: 1. Buslines treated Master Sykes less favourably in the same circumstances, or in circumstances which are not materially different, than it treated or would treat, a student of a different race (less favourable treatment), and 2. One of the reasons for any less favourable treatment was Master Sykes' race, a characteristic that generally appertains to, or is generally imputed to persons of his race (causation).
If cast as indirect discrimination, Ms Sykes must establish that: 1. Buslines imposed a requirement or condition; 2. Master Sykes was unable to comply with that requirement or condition; 3. A substantially higher proportion of students not of Master Sykes' race comply or are able to comply with that requirement or condition; and 4. The requirement or condition was not reasonable having regard to the circumstances of the case.

Department of Education complaint

The report provided by the President to NCAT, as required by s 94A(2), did not contain the letters sent by the Board to the Department inviting it to respond to Ms Sykes' complaint. Therefore, it is unclear whether initially the Board was of the view that the complaint was capable of amounting to a complaint in the area of services, education or both. For current purposes I will assume but not decide that the complaint is capable of being characterised as a complaint in the areas of both services and education.
As a complaint in the area of services, after identifying the relevant services Ms Sykes must establish that the Department refused to provide Master Sykes with those services or provided him with those services on discriminatory terms.
As a complaint in the area of education, Ms Sykes must establish that the Department denied Master Sykes access, or limited his access, to any benefit provided by the Department, or subjected him to a detriment.
If one or both is established, the elements of direct or indirect discrimination as set out above must be addressed.

Transport for NSW complaint

If found that Buslines contravened s 17 of the Act, by the operation of s 53 of the Act Transport for NSW will be liable for that contravention if Buslines acted as its agent, unless Transport for NSW did not authorise Buslines, either expressly or by implication, to do that act.
In addition, or in the alternative, Transport for NSW will have contravened s 52 of the Act, if established that it caused, instructed, induced, aided or permitted Buslines to contravene s 17 of the Act.

Submissions

The Respondents contend that the Complaints lack substance and urge the Tribunal to refuse to grant leave.
Buslines asserts that except for the four occasions where it suspended Master Sykes from using its services because he was found to have breached the Code of Conduct, it did not refuse to provide Master Sykes with transport services. It contends that the evidence does not support findings that in suspending Master Sykes from using its services it treated him less favourably than a student not of his race, or that his race was one of the reasons it suspended him from its services.
Buslines submits that it is significant that in its dealings with Ms Sykes, she made no mention of Master Sykes being racially abused by other passengers nor did she allege that race was one of the reasons for its decision to issue Master Sykes with warnings or to suspend him using its services. It also points to Ms Sykes' correspondence with the Minister for Transport and Transport for NSW which made no mention of race discrimination.
The Department of Education contends that there is no basis to support a finding that it failed to take steps to assist and support Master Sykes, pointing to the significant support it asserts was provided to assist Master Sykes with his "behavioural issues". Echoing the submissions made by Buslines, it contends that it is significant that during the Complaint period, Ms Sykes did not claim to it that her son had been the subject of racial abuse by other students either at, or while travelling to and from school.
With respect to the allegation that Master Sykes was the subject of racial abuse while traveling to and from school, the Department asserts that it is not responsible for any alleged abuse, asserting that its duty of care to students "stops at the school gate", citing in support Graham v New South Wales [2001] NSWCA 248.
Ms Sykes does not dispute that when notified of its decision that her son had been suspended from its services, she did not complain to Buslines that its actions amounted to race discrimination. She points out that the notices of the suspension decisions state that if a parent does not agree with the decision they should apply to Transport for NSW for review of that decision.
Ms Sykes urges the Tribunal to grant leave for the Complaints to proceed, asserting that it would be "fair and just" to do so and there is a public interest in racial abuse of school students and inaction by organisations to that abuse, being exposed.

Conclusion

The task of determining whether to grant, or not to grant, leave for the Complaints to proceed is not an easy one, not least because in the leave hearing Ms Sykes failed to particularise the Complaint against each Respondent and address the elements necessary for the Complaints to be substantiated. In making that observation I do not intend to be critical of Ms Sykes and I acknowledge the difficulty faced by self-represented parties in prosecuting a complaint made under the Act, in what is a complex area of law. Nonetheless, if leave is granted, it will be necessary for Ms Sykes to address these issues.
Several key factual matters are in dispute, including whether: 1. As Ms Sykes alleges throughout the period of the Complaint, Master Sykes was subjected to constant racial abuse by other students while travelling to and from and at school; 2. Buslines' drivers and the Department turned a blind eye to that alleged abuse; 3. Buslines falsely accused Master Sykes of verbally and physically assaulting other students; 4. In suspending Master Sykes from its services and issuing him with warnings for alleged breaches of the Code of Conduct, Buslines treated Master Sykes more harshly than it treated or would probably treat students not of his race in comparable circumstances; 5. Whether, as the Department contends, it provided Master Sykes with considerable support to deal with his "behavioural issues" and difficulties experienced during his daily commute.
Throughout the period of the Complaints, Master Sykes is reported to have demonstrated challenging behaviour at, and while travelling to and from, school. The available reports paint a picture of a troubled child, constantly clashing with peers and authorities.
While not squarely put, the Respondents suggest that Ms Sykes' claim that her son was the victim of racial abuse and assaults is a recent invention and that she is either unwilling or unable to accept that her son has a long history of subjecting other students to abuse.
Ms Sykes' apparent failure to allege that her son had been subject to racial abuse before making the Complaints to the Board in February 2019, tends to support the recent invention hypothesis. Nonetheless, it cannot be said that the Complaints made by Ms Sykes to the Board are the only evidence of Master Sykes being the subject of racial abuse. The Department acknowledges that Master Sykes was the subject of abuse by other students at school throughout the period of the Complaints. In addition, the material forwarded by Ms Sykes to the Board includes notes apparently written by Master Sykes complaining of racial abuse. See, for example, "non-stop teasing, racism, violence …" (13 February 2018) and a student "continuously shouting derogatory racist names [at Master Sykes]" (30 October 2018).
Nonetheless, as the Respondents point out, evidence of Master Sykes being subjected to racial abuse at school and during his daily commute does not establish that Buslines or the Department discriminated against him on the ground of race in the areas of services/education. At best it is a relevant contextual factor.
With respect to the Buslines complaint, Buslines' explanation for suspending and issuing warnings to Master Sykes appears plausible. It is consistent with the contemporary reports made by Buslines' drivers of Master Sykes repeatedly misbehaving on its buses and assaulting other students. Those reports tend to suggest that the actions taken by Buslines was reasonable. The available material would not support a finding that in suspending Master Sykes from its services, Buslines subjected Master Sykes to less favourable treatment than it treated, or would probably treat, a student not of his race. Conversely, without evidence of how Buslines treated other students who had been found to misbehave, a positive finding could not be made that Buslines did not subject Master Sykes to less favourable treatment.
The question raised is whether the interests of justice would be best served by giving Ms Sykes the opportunity to obtain further material and to test the explanation given by Buslines for its treatment of Master Sykes. I am mindful that if the complaint proceeds and Ms Sykes fails to provide further material addressing the elements of her claim, Buslines would have been put to the unnecessary expense of defending an unmeritorious claim. While the considerations are finely balanced, given the seriousness of the allegations raised, the fact that they involve a minor, together with the lack of material to enable a proper evaluation to be undertaken of the prospects of success of the complaint, I have decided that it is fair and just to permit the complaint against Buslines to proceed.
With respect to the complaint against the Department, there is a factual contest about the extent to which Master Sykes was subjected to racial abuse while at School and whether the School intervened and provided support to Master Sykes. Nonetheless, for broadly the same reasons given in relation to the Buslines' complaint, I have decided that it would be fair and just to permit the complaint relating to the Department to proceed.
With respect to the complaint against Transport NSW, in my view it is not reasonably arguable that Buslines acted as the agent for Transport for NSW. In addition, without evidence that Ms Sykes brought to its attention the allegation she now raises in respect of Buslines, in my view, it is not reasonably arguable that Transport for NSW caused, instructed, induced, aided or permitted Buslines' alleged contravention of the Act.
For these reasons I have decided to grant leave for the complaints against Buslines and the Department of Education to proceed and not to grant leave for the complaint against Transport for NSW.

Order 1. Leave is granted under s 96(1) of the Anti-Discrimination Act 1977 (NSW) for the complaints against Buslines and the State of NSW (Department of Education) to proceed. 2. Leave is refused under s 96(1) of the Anti-Discrimination Act 1977 (NSW) for the complaints against Transport for NSW 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: 02 November 2020

Statutory framework and principles governing the grant of leave

A parent or guardian of a person who lacks legal capacity to lodge a complaint because of age, may make a complaint to the President on behalf of that person, alleging that a person(s) has contravened a provision of the Act: s 87A(1)(b) of the Act.
Where the President decides to accept a complaint under s 89B, he or she must investigate that complaint: s 90(1) of the Act. If the President is satisfied, at any time of the investigation, that the complaint is lacking in substance, he or she may decline the complaint in whole or in part: s 92(1)(a)(i). A complaint will be "lacking in substance" if it can be demonstrated that there exists no factual basis for the allegations or that the complaint is "not reasonably arguable": Langley v Niland & Anor (1981) 2 NSWLR 104 at 107 and Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22].
Where, as here, the President declines a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so: s 93A of the Act.
Where a complaint is referred to the Tribunal at the request of a complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1) of the Act.
Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones & Anor v Ekermawi [2009] NSWCA 388 at [58] (Jones); Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25] (Ekermawi). That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme: Jones at [57]; Ekermawi at [32]. The question of leave involves evaluating whether it is "fair and just" to grant or refuse leave in the particular circumstances of the case: Ekermawi at [36], [37]; Jones at [58]. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones at [60].

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