Wolf Matthews v Secretary, Department of Education

Legal Principles

1. A parent or guardian person of a person who lacks the legal capacity to lodge a complaint (for example, because of age or disability) may make a complaint to the President 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, she must investigate that complaint: s 90(1) of the Act.
2. Section 92 of the Act provides relevantly: 92 PRESIDENT MAY DECLINE COMPLAINT DURING INVESTIGATION (1) If at any stage of the President's investigation of a complaint-- (a) the President is satisfied that-- (i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or … (vi) the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or … (b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint, the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint. …
3. If the President is satisfied at any time of the investigation that the complaint is lacking in substance, 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 [1981] 2 NSWLR 104 at 107 and Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22].
4. Where, as here, the President declines a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if she has received a written request from the complainant to do so: s 93A of the Act.
5. 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.
6. Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones v Ekermawi [2009] NSWCA 388 at [58] (Jones); Ekermawi v Administrative Decisions Tribunal of New South Wales [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].

Discrimination on the ground of race

1. Section 7 of the Act makes it unlawful to discriminate against a person on the grounds of race. It provides that: 7 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 … (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.
2. In order to establish a claim of racial discrimination, the applicant needs to establish that at least one of the reasons Nikita was treated less favourably than others in the same or similar position - "differential treatment"- was "on the grounds of" her race - "causation". The applicant's evidence must be taken at its highest, that is, everything the applicant has put in evidence is accepted as true and then the Tribunal determines whether she could possibly succeed in his complaint of racial discrimination: Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]).
3. In determining differential treatment, a comparator needs to be identified. If there is no actual comparator with whom to compare the applicant, then a hypothetical comparator may be considered: see Dutt v Central Coast Area Health Service [2002] NSWADT 133 (Dutt) at [59]‑[65]; Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5; Bassili v The Star Pty Ltd [2016] NSWCATAD 167 at [23]. In Dutt at [60]‑[65], the Tribunal discussed the question of whether or not there has been "less favourable treatment" of the applicant "than others in the same or similar position" where the comparator is a hypothetical comparator, emphasising the importance of identifying the grounds upon which service was actually refused: "[63] … The only fact that it is possible to determine is the ground or grounds on which the applicant was actually refused service. Only when this is known can we say whether a hypothetical comparator would have been refused service in the same circumstances. The applicant could, for example, have been refused service on perverse or irrational grounds, or solely on a ground unrelated to race: it is not until the ground for the actual treatment is known that it is possible to say whether a hypothetical person not of the applicant's race would have been treated differently."
4. In determining causation, that reason must have been a reason which, either alone or in combination with other reasons, was the 'real', 'genuine' or 'true' basis for the treatment: Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 per Gleeson CJ at 102, McHugh and Kirby JJ at 144; Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28].
5. If there is no direct evidence of causation on the ground of race, a causal link between race and the alleged treatment would have to be established by inference from the available facts. Any such inference must be logical and reasonable and must show that a connection is probable. An inference cannot be made where more probable and innocent explanations are available on the evidence: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262; Dutt at [70].
6. The applicant bears the onus of proof that Nikita was treated less favourably "on the grounds of", "because of" or "due" (at least in part) to her race: see Hubbard v Roads and Traffic Authority of NSW [2010] NSWADT 99 at [56]. It is not the case that because a person is of a particular race and experiences something he or she perceives as "adverse" to him/herself, that the conduct is discriminatory simply because the person is of that race. The person needs to prove on the civil standard that the conduct impugned occurred "on the ground of", "due to" or "because of" the race of the person or that was one of the reasons for the conduct.
7. Section 17(2) makes discrimination in the context of education unlawful where there is a denial or limitation of access to benefits provided by the educational authority, or any other detriment caused: 17 EDUCATION … (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. …
8. What amounts to discrimination for the purposes of s 17 is to be derived in the first instance from the relevant definition provided by section 7, as is the case with respect to the similarly constructed disability discrimination in education provisions at ss 49B and 49L of the Act: Waters v Public Transport Corporation (1991) 173 CLR 349 (Waters) at 392 per Dawson and Toohey JJ. That is because s 17 makes unlawful (in the circumstances set out in that section) acts amounting to discrimination within the meaning of section 7: Waters at 392. In other words, a finding of discriminatory conduct under section 7 is not unlawful unless that conduct also contravenes s 17.
9. Sections 20B of the Act defines what is meant by a public act in the context of vilification: 20B DEFINITION OF "PUBLIC ACT" In this Division, "public act" includes-- (a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and (b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and (c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.
10. Section 20C of the Act makes racial vilification unlawful: 20C RACIAL VILIFICATION UNLAWFUL (1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group. (2) Nothing in this section renders unlawful-- (a) a fair report of a public act referred to in subsection (1), or (b) a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) in proceedings for defamation, or (c) a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.
11. Section 50 of the Act makes victimisation of a complainant unlawful: 50 VICTIMISATION (1) It is unlawful for a person ("the discriminator" ) to subject another person ("the person victimised") to any detriment in any circumstances on the ground that the person victimised has-- (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.
12. If an act is done for two or more reasons, and one of the reasons consists of unlawful discrimination under the Act (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of the Act, the act is taken to be done for that reason: s 4A of the Act.

Consideration

1. The Respondents accepted and acknowledged that the Second Respondent used words and engaged in conduct that was offensive and inappropriate (the Conduct). However it submitted that it had taken 'appropriate steps to redress the Conduct and has treated the matter with appropriate gravity'. These steps included: 1. a prompt apology by the Second Respondent directly to Nikita, the day after the incident; and two subsequent apologies by the Second Respondent to the entire class to whom the statements were made. 2. Nikita was offered an alternative class and teacher in the same subject for her comfort, as an option; 3. the First Respondent investigated the incident in accordance with the relevant policies. A disciplinary meeting was held regarding the allegations of racial profiling of the people of the Indian subcontinent, including accents, the Hindi language and occupations; 4. the First Respondent issued the Second Respondent with a disciplinary warning; 5. the Second Respondent self-reported to the School's Anti-Racism Contact Officer and received targeted training; and 6. the incident was reported to the Department of Education Professional and Ethical Standards Directorate;
2. The Applicant was not satisfied with the steps taken by the Respondents, considering the gravity of the conduct. The Applicant pointed out that there was no detail or evidence as to the investigation, discipline, training and support which were said to have been undertaken so as to remedy the conduct and prevent its repetition in the future.
3. I disagree with the Respondent's submissions and the President's summary that the Applicant's complaint with respect to direct discrimination in education is lacking in substance. Taking the Applicant's evidence at its highest, which is essentially not disputed by the Respondents in any event, the Second Respondent was aware of Nikita's racial origin. The conduct during class on 3 May 2021 could be considered 'less favourable treatment' pursuant to s 7 of the Act in circumstances where other students in the class, who were not of the same race as Nikita, were not subjected to humiliating comments made about their racial origins during that lesson. In the context of education under s 17 of the Act the discriminatory conduct had the effect of, at the least, causing 'any other detriment' to Nikita, subjecting her to a learning environment where racism was tolerated, making her feel unwelcome and uncomfortable in the class and failing to provide her with a safe, supportive and inclusive learning environment.
4. Whether or not an apology or the manner of apology given is sufficient redress for this conduct is a subjective matter. Considering the gravity of the conduct, the context of it occurring in class during Nikita's senior education, and the fact that it continued even after other students objected to it on 3 May 2021, there is a valid basis for the Applicant's contention that although some actions has been taken by the School and the Second respondent, these may not have been sufficient or appropriate considering the circumstances and the impact of the conduct on Nikita. I agree with the Applicant that the question of whether or not the Respondents' actions sufficiently remedied or redressed the discriminatory conduct is a matter of evidence which should be resolved through a hearing. A similar conclusion was reached by the Tribunal in Alghofaili v SAE Institute Pty Ltd [2020] NSWCATAD 215 at [53].
5. With respect to the complaint of racial vilification, the First Respondent acknowledged that the Second Respondent's conduct had the potential to incite severe ridicule of the Indian race amongst students in the class but contended that the conduct was not so extreme or severe as to 'rise to the level' of inciting hatred, serious contempt or severe ridicule. Taking the Applicant's evidence at its highest in the context of a leave application under s 96(1) of the Act this distinction seems to be unnecessary. Whether the conduct only had the potential for, or in fact did incite severe ridicule, contempt or hatred can be a matter for evidence and the Tribunal's findings in the course of the proceedings. In circumstances where the conduct is admittedly offensive towards Indian people and had, at least, the potential to incite severe ridicule within the meaning of s 20C of the Act, this distinction could not be the basis for a finding that the complaint was lacking in substance.
6. The respondents' second contention in relation to the vilification complaint is that a school classroom is not a 'public place' within the meaning of the Act, relying on the Tribunal's findings in Riley v State of NSW (Department of Education) [2019] NSWCATAD 223 (Riley) on the issue of the meaning of "public act". As discussed in Riley and in Lamb v Campbell [2021] NSWCATAD 103, whether an act is in public is just one aspect of determining whether something is a 'public act' within the meaning of the Act. In Riley the Tribunal found that conduct at a muster meeting amongst staff members of a school did not constitute 'public acts' in circumstances where matters confidential to staff were discussed in a meeting of a restricted nature. However, as submitted by the Applicant, the acts of a teacher when teaching a class in these proceedings are distinguishable from the circumstances relevant in Riley, and the question of whether the conduct of a teacher in a classroom is capable of constituting a "public act" for the purposes of ss 20B and 20C of the Anti-Discrimination Act is an important question of law concerning the scope and application of the Act, which warrants full argument before the Tribunal.
7. Finally in relation to the victimisation aspect of the Applicant's complaint, I understand the Applicant's complaint to be that following Nikita's complaint to the Second Respondent and the School, there was a failure by the School to recognise, respond to and denounce the racist conduct and take appropriate actions. The Respondents contend that this part of the complaint was not pressed by the Applicant and that, in any event, their actions following Nikita's complaint were aimed at redressing and remedying any alleged discriminatory conduct, rather than victimising Nikita for the complaint. Without having clarity as to what exact conduct is alleged to have victimised Nikita, and how the conduct constituted victimisation within the meaning of s 50 of the Act, it is difficult for the Tribunal to make an assessment as to whether this part of the complaint is also lacking in substance. However I consider it at least arguable that conduct by the Respondents following Nikita's complaint caused Nikita detriment, and there is a causal connection between the conduct and the fact that Nikita made a complaint so as to come within s 50(1)(c) of the Act.

Should leave be granted or not granted?

1. For the reasons discussed above I disagree with the President's basis for declining the complaint that it is lacking in substance with respect to the allegations of direct discrimination in education, vilification and victimisation, in relation to both the First and Second Respondents. I agree that there is a serious question of law in relation to whether the Second Respondent's conduct on 3 May 2021 constituted a public act within the meaning of s 20B of the Act, which should be given a fair opportunity to be developed by the Applicant and considered by this Tribunal. I also consider that the conduct was of sufficient gravity so as to call into question whether the Respondent's attempts of redress were, in fact, sufficient. In the circumstances and bearing in mind each of the principles in Jones and Ekermawi (as referred to above at [13]), I consider it would be fair and just for the Tribunal to grant leave to the Applicant to proceed with her complaints.

Orders 1. Leave granted pursuant to s 96(1) of the Anti-Discrimination Act 1977 (NSW) for the complaint against the Respondents 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 June 2022