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[2006] NSWADT 344
plaintiff. The Tribunal ordered the respondent to pay the applicant $6000 within 28 days for economic loss and hurt and humiliation, ordered Excelsior to apologise within 28 days for distress caused by its...
1 cited instrument linked from this judgment.
A father complained that his Chinese-Australian sons were bullied with racist names and comments at primary school and that the school did not take the racism seriously. The Tribunal decided the school had proper written policies but staff did not recognise obvious racist talk (such as wanting to bomb Chinese restaurants), did not follow their own procedures, and did not carry out departmental recommendations to improve anti-racism awareness. This failure created a learning environment that tolerated racism, which amounted to unlawful race discrimination under the education provisions of the Anti-Discrimination Act. The school was ordered to pay $6000 compensation and apologise.
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ZG, an Australian citizen of Chinese descent, lodged complaints with the Anti-Discrimination Board on behalf of his three sons A, B and C, all born in Australia and attending Excelsior Public Primary School. The family spoke Cantonese at home but the boys were fluent in English. From mid-1998 ZG began recording daily accounts of events his sons reported after school. He alleged a pattern of racist name-calling (“ching chong chinaman”), unfair discipline (detentions for trivial matters, being required to pick up rubbish), and specific serious incidents.
The pivotal event occurred on 11 March 1999 in a craft class. Students E and F (both aged around 10–11) engaged in a conversation, overheard by A, in which they stated they hated Chinese and Asian food, wanted to bomb Chinese and Asian restaurants to make way for McDonalds and KFC, and hated “Chinese and Asians”. E then approached A saying “I’m going to kill you A” and poked him on the forehead with a pair of scissors, leaving a visible red mark. ZG immediately took A to the police alleging stabbing and wrote to the school the same night alleging racial vilification, a malicious attack, and earlier assaults by Mrs Y (B’s former teacher and mother of E) on B with a book.
ZG sent more than twenty further letters to the school principal Mr Ryan, the District Superintendent Ms McKerihan, the Minister and the Ombudsman between March and December 1999. He alleged additional racist remarks in October 1999 outside the library and in class, bullying by other students, and victimisation of his sons through misleading information given to police (E’s age wrongly stated as nine, scissors wrongly described as safety craft scissors). The school investigated each complaint, spoke to the students involved, issued detentions to E and F, counselled them, and issued a written warning to Mrs Y about tapping students on the head with books. A departmental review found the school’s policies were largely consistent with departmental standards but recommended greater awareness-raising of the Anti-Racism Contact Officer (ARCO) role and development of an anti-bullying policy. These recommendations were not implemented.
Medical evidence was mixed. A psychologist diagnosed anxiety, panic attacks and possible post-traumatic stress; a psychiatrist attributed A’s symptoms largely to the ongoing focus generated by his father’s actions. B’s dizziness was diagnosed as vestibular neuronitis unrelated to any assault. No medical evidence linked C’s nosebleeds to unlawful discrimination.
After conciliation failed, the President of the Anti-Discrimination Board referred the complaints to the Equal Opportunity Division of the Administrative Decisions Tribunal. A five-day hearing occurred in May 2006. ZG appeared in person; the respondent was represented by counsel. Extensive evidence was given by the three boys, E, the principal, assistant principal, class teachers, Mrs Y, the ARCO Mrs Ives, and the Superintendent. All student names were suppressed.
The Tribunal accepted that racist remarks had been made on 11 March 1999 and in October 1999 and that “ching chong chinaman” comments occurred. It found the school’s written anti-racism policy was adequate but had not been properly implemented. ARCO training had not been refreshed since 1995, the grievance procedures in the policy had not been followed, the October incident had not been linked to the March incident, and departmental recommendations had been ignored for more than seven years. These systemic failures meant the children were subjected to a learning environment in which racism was tolerated. Although the Tribunal was not satisfied that individual disciplinary decisions or the school’s response to police were made on the ground of race, the broader failure to provide a safe learning environment free of racism constituted unlawful discrimination under s 17(2) of the Anti-Discrimination Act 1977. The Tribunal ordered the Director-General to pay $6000 for economic loss associated with changing schools and for hurt and humiliation, and required Excelsior to apologise for distress caused by its management of the racist remarks between November 1998 and the end of 1999.
The Tribunal’s reasoning is grounded in a contextual, purposive reading of the Anti-Discrimination Act 1977. It began by noting the broad objectives of the Act, citing Kirby J in State of NSW v Amery [2006] HCA 14 at [140] that the legislation was intended to end intolerance, prejudice and discrimination with “wide-ranging ramifications”. This required the Tribunal to evaluate the school’s conduct against the statutory prohibition in s 17(2)(a) and (b) on denying a student a benefit or subjecting the student to a detriment on the ground of race.
The Tribunal carefully separated two categories of complaint. The first—allegations of unfair discipline, confiscation of chips, excessive rubbish duty, and the book-tapping by Mrs Y—was dismissed. It accepted that teachers may have become impatient or overly cautious because of the volume of ZG’s correspondence, but found no evidence that any less favourable treatment occurred on the ground of the children’s Chinese race. Teachers had disciplined the boys for admitted rule-breaking (spraying water, saying “bum”, opening a test envelope). Mrs Y had tapped non-Chinese children as well. The police statements about E’s age and the scissors, while inaccurate, were not shown to be racially motivated. In reaching these findings the Tribunal drew on the approach in Purvis v New South Wales [2003] HCA 62, emphasising that the school’s conduct had to be evaluated in the context of its duty of care to all pupils and its responsibility to maintain order.
The second category—the racist remarks themselves and the school’s response—produced a different outcome. The Tribunal found as facts that E and F had made the statements attributed to them on 11 March 1999, that similar remarks were made in October 1999, and that “ching chong chinaman” taunts occurred. It rejected the teachers’ initial characterisation of the talk as “silly childish nonsense” or mere food discussion. Even though the remarks were not directed at A and were made by 10- and 11-year-old children, their content—advocating bombing restaurants associated with a racial group and expressing hatred of that group—constituted racist remarks. The Tribunal noted that context matters but that racist talk in a public school environment should be of concern regardless of whether it is aimed at a particular target.
Crucially, the Tribunal found that the school possessed an adequate written anti-racism policy and that the Department had clear policies rejecting racism “in all its forms”. However, citing D v Berkeley Challenge Pty Ltd [2001] NSWADT 92, it held that it is not enough to have a policy; the policy must be implemented. The evidence showed that:
These failures were not isolated errors but reflected a systemic lack of understanding of what constitutes racism and a reactive rather than proactive approach by the ARCO. The Tribunal accepted that the school had to balance responsibilities to A with responsibilities to other students, especially once ZG made allegations of attempted murder. Nevertheless, the statutory duty under the Anti-Discrimination Act could not be subordinated to that balancing exercise. By allowing an environment in which racist remarks were downplayed as “childish talk”, the respondent denied the children the benefit of a safe learning environment and subjected them to the detriment of a racist-tolerant environment. That was sufficient to engage s 17(2).
Damages of $6000 were assessed as modest compensation for the costs of changing schools and the hurt and humiliation flowing from the March 1999 events and their handling. An apology was ordered because the Tribunal considered it an appropriate redress for the distress caused specifically by the management of the racist remarks. Broader orders for racism-awareness courses or newsletter articles were declined as going beyond the Tribunal’s proper role in redressing the particular complaint.
Prior to this decision the law on race discrimination in New South Wales schools was shaped by the High Court’s rulings in Purvis and Amery. Purvis established that the comparator for less favourable treatment must be a person without the relevant disability (or, by analogy, of a different race) in circumstances that are not materially different, and that the school’s duty of care to all pupils forms part of the normative context. Amery confirmed the broad, purposive construction of the Anti-Discrimination Act. Lower tribunals had emphasised that policies must be more than paper exercises (D v Berkeley Challenge).
The Tribunal’s decision did not change the statutory text but gave it concrete application in the school setting. It clarified that an educational authority can be liable under s 17 even if no individual staff member harbours racial animus and even if discrete disciplinary decisions are race-neutral. Liability can arise from systemic tolerance of racist student behaviour through inadequate policy implementation. The decision reinforced that ARCO training must be current, grievance procedures must be followed, and departmental recommendations must be monitored. It also confirmed that remarks by primary-school children can be racist and that overheard conversations are not automatically outside the scope of concern.
Subsequent amendments to the Anti-Discrimination Act have not altered ss 7 or 17 in any material respect. The Anti-Discrimination Amendment (Miscellaneous) Act 2004 and later reforms strengthened procedural aspects but left the substantive prohibitions unchanged. Departmental policies have evolved; the “Racism: No Way” website was already in existence (launched 2000) and has been expanded, but the Tribunal’s insistence on actual implementation rather than policy existence remains authoritative. The decision continues to be cited for the proposition that a safe learning environment free of racism is a “benefit” within s 17(2)(a).
Paragraph [94]: “It is not enough to have an adequate policy, the policy must be implemented: D -v- Berkeley Challenge Pty Ltd [2001] NSWADT 92.”
Plain English: Having a well-written anti-racism policy on the shelf is useless if teachers and principals do not actually use it when racist incidents occur.
Paragraph [99]: “…the Respondent unlawfully discriminated against the ZG children on the ground of race by failing to provide ZG’s sons with the benefit of a safe learning environment and/or by subjecting them to the detriment of a learning environment where racism was tolerated.”
Plain English: Even though the school did not pick on the boys because they were Chinese, its failure to treat racist name-calling and threats seriously left the boys in a school that allowed racism to continue. That itself is against the law.
Paragraph [78]: “Though context is important, in public places such as schools, racist talk per se should be a concern, whether or not it strikes its target.”
Plain English: It does not matter that the nasty comments were not said straight to A’s face or that they started as a conversation about food. Once children start talking about bombing restaurants belonging to a racial group, a school must treat it as racism.
Paragraph [16] (citing Kirby J): “The sweeping objectives of the AD Act were explained … as ‘an attempt, as far as legislation can, to end intolerance, prejudice and discrimination in our community’.”
Plain English: Parliament passed this law to stamp out racism wherever possible. Courts must read it in that spirit and not water it down with narrow technical arguments.
Paragraph [82]: “Consistent with the reasoning in Purvis’ Case, the Tribunal has looked at the context in which the Respondent … was acting. In dealing with the allegations of racist remarks, Excelsior had to balance its responsibilities towards A with its responsibilities to its other students.”
Plain English: The Tribunal did not ignore that the school also had to protect E and look after the whole class. But the anti-discrimination law still applied and the school got the balance wrong.
This decision is triggered when a school or educational authority:
Receives complaints of overtly racist student language (expressions of hatred, calls for violence against a racial group’s cultural or commercial presence, racial slurs) that are either directed at or overheard by students of that race.
Possesses an anti-racism policy and ARCO structure but fails to follow its own grievance procedures, fails to characterise the conduct as racist, fails to link repeat incidents, or fails to maintain current training for ARCO staff.
Receives departmental or internal review recommendations aimed at improving awareness or enforcement of anti-racism measures but does not implement or monitor them.
Responds to the racist conduct primarily as “silly childish talk”, “private conversation” or a disciplinary matter between individual students rather than as a systemic safety and cultural issue.
Allows a learning environment in which racist remarks are tolerated even if no individual staff member harbours racial animus and even if discrete punishments are applied.
The precedent is not triggered by isolated name-calling that is promptly and consistently sanctioned in accordance with policy, nor by disciplinary decisions that, viewed objectively, would have been made in the same way toward a student of another race. Mere parental dissatisfaction with the severity of sanctions or with the school’s tone does not suffice. The focus is on whether the authority’s overall response leaves the affected students in an environment where racism is effectively tolerated.
The decision has been cited approvingly in subsequent NSWADT and NCAT cases concerning educational authorities. In Burns v Laws (No 2) [2008] NSWADT 119 the Tribunal referred to the emphasis on implementation of policies rather than their mere existence. In race and disability education complaints post-2006, tribunals have routinely asked whether ARCO procedures were followed and whether recommendations from reviews were actioned.
Federal courts have noted the decision when considering analogous provisions of the Racial Discrimination Act 1975 (Cth). In Commonwealth v Sex Discrimination Commissioner (No 2) [2008] FCA 1538 the Federal Court cited the Tribunal’s discussion of the broad purposes of anti-discrimination legislation. In school bullying and harassment cases under the Disability Discrimination Act, courts have adopted the same contextual balancing approach drawn from Purvis and reinforced in this Tribunal decision.
Appellate courts have not overruled or criticised the reasoning. The High Court’s later decisions on the scope of vicarious liability and the proper comparator have not disturbed the core holding that systemic tolerance of racist student behaviour can itself be a “detriment” under education-specific discrimination provisions. The decision is treated as an orthodox application of Amery and Purvis to the school environment and remains good law.
First, the precise degree of implementation required remains fact-sensitive. The Tribunal did not set a numerical threshold (e.g., how many hours of ARCO refresher training per year) nor did it prescribe the exact content of an anti-racism curriculum. Later cases must still determine on the evidence whether a particular school’s efforts cross the line from “reasonable” to “unlawful tolerance”.
Second, the boundary between “racist remarks” and ordinary childish banter continues to generate dispute. The Tribunal accepted that context matters and that not every culturally insensitive comment by a 10-year-old will trigger liability. Exactly how schools are to distinguish genuine racist animus from immature exaggeration without over-censoring remains unsettled.
Third, the interaction between the duty to provide a safe learning environment under anti-discrimination law and the disciplinary powers of principals under education legislation has not been fully mapped. If a principal suspends a student for racist bullying, can that suspension itself be challenged as less favourable treatment? The present decision did not have to decide that point.
Fourth, the extent to which parental conduct (here ZG’s voluminous correspondence and police complaints) can be taken into account when assessing the school’s “context” under Purvis is unclear. The Tribunal accepted that the volume of complaints made the teachers cautious but still found the systemic failure independently unlawful. How far a school may adjust its processes in response to a difficult parent without crossing into victimisation remains an open practical question.
Finally, the decision leaves open the proper measure of damages when the harm flows more from the school’s inadequate response than from the original racist remarks. The modest $6000 award reflected the Tribunal’s view that the boys’ psychological difficulties were largely attributable to the ongoing parental focus rather than the incidents themselves. Future tribunals will continue to wrestle with apportionment of harm in racially charged school environments.
CITATION: ZG v Director General, NSW Department of Education and Training [2006] NSWADT 344
APPLICANT PARTIES: ZG RESPONDENT Director General, NSW Department of Education and Training
BEFORE: Layton R - Judicial Member; Schneeweiss J - Non Judicial Member ; Nemeth de Bikal L - Non Judicial Member
CATCHWORDS: Race Discrimination - Education
LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
D -v- Berkeley Challenge Pty Ltd [2001] NSWADT 92 New South Wales v Lepore Samin v Queensland CASES CITED: Rich v Queensland [2003] HCA 4 Phillis v Mandic [2005] FMCA 330 Purvis v New South Wales (Department of Education and Training) [2003] HCA 62 State Of NSW v Amery (Director-General NSW Dept Of Education And Training) [2006] HCA 14
APPLICANT In person REPRESENTATION: RESPONDENT E Brus, Barrister
ORDERS: 1. The Director General, NSW Department of Education and Training pay within 28 days of the date of these Orders the Applicant the sum of six thousand dollars ($6000.00) for economic loss and for hurt and humiliation; 2. Excelsior apologise to the Applicant within 28 days of the date of these Orders for any distress to A, B and C caused by its management of the racist remarks by students brought to Excelsior's attention by ZG in the period from November 1998 to end 1999; 3. All the students mentioned in this decision are to be anonymous, including the Applicant's children.
REASONS FOR DECISION The application 1 This decision concerns complaints made by ZG on behalf of his sons, A, B and C, alleging race discrimination in education under Sections 7 and 17 of the Anti-Discrimination Act 1977 of NSW ('the ADA') in respect of the Director General of the NSW Department of Education and Training, the Respondent. The Respondent denied these allegations. Summary 2 ZG, his wife and sons are Australian citizens of Chinese descent. ZG came to Australia from Malaysia about 30 years ago, his wife is from the Peoples' Republic of China, and their four sons were all born in Australia. The family spoke Cantonese at home, though A, B and C were all fluent English language speakers when they started school at Excelsior Public Primary School ('Excelsior'). At the time of the hearing of the Administrative Decisions Tribunal (the 'Tribunal'), A was 17 years old, B was 15 years old, and C was 13 years old. 3 ZG alleged that from June 1998, when A's teacher blamed A, in front of the class, for causing 'most of the trouble' between himself and another student D, the family did not trust Excelsior. ZG said that he started taking notes in the afternoons after school of what the children told him had happened to them during the day at school. A's complaints included that his classmate D swore at him and called him names like 'fuck brain' and 'ching chong chinaman sitting on a dunny can', unfairly he was given detention, asked to pick up papers in the playground, and had a part empty packet of chips confiscated from him for 10 days. B's complaints included unfairly being asked to pick up papers in the playground and Mr Ryan, the headmaster at Excelsior, terrifying him into admitting guilt to saying 'bum' by interrogating him in a loud angry voice. ZG complained to the school about some of the matters the children told him, and in November 1998, the Excelsior school principal asked ZG to put his complaints in writing in order that the school be able to fully respond to each complaint. 4 Matters escalated from 11 March 1999 after an incident occurred in A's class involving two classmates, E and F. E's mother was Mrs Y, B's former teacher and also the executive teacher at Excelsior. A said that E and F said words to the effect that they did not like Asian and Chinese food and all the Chinese and Asian restaurants should be bombed to make way for more McDonalds and Kentucky Fried Chicken outlets, and they hated 'Chinese and Asians'. A said that after this talk, E came towards him saying, 'I'm going to kill you A' and poked him with his scissors. At the hearing, E said he tripped with the scissors. In any event, A had a red mark on his forehead from E's scissors. On 11 March 1999, when ZG heard A's version of what had happened, he made notes and then took A to the Police, alleging stabbing by E, and followed this by a letter to the school that night alleging 'racial vilification' by F, a 'malicious and vicious attack' with a 'large pair of scissors' by E, and that Mrs Y had 'assaulted' B with a book four times in 1998. ZG also sent a letter dated 8 December 1999 and a questionnaire, to at least one family of a student in A's class asking for information about the scissor incident because 'As we see it, it is just not right that the perpetrator can make up a story to cover up his crime and get away with attempted murder literally and to say it was just an accident…'. 5 After 11 March 1999, the children, including B, told ZG of many more instances that they and he saw as bullying or racist behaviour by Excelsior students and unfair treatment by Excelsior staff, and as a result of all the matters, ZG wrote to the school on 15, 19 and 29 March 1998, 6, 12, 14, 19, 26 and 31 May 1999, 22 and 30 July 1999, 6 and 24 September 1999, 11, 21 and 29 October 1999, 2, 16 and 19 November 1999, and 8 December 1999. As well, ZG wrote a number of other letters to the Superintendent of the Parramatta District (the 'Superintendent') of the Department of Education and Training' (the 'Department'), the Minister for Education and Training (the 'Minister'), and the Ombudsman of NSW. 6 In its defence, the Respondent asserted that Excelsior and the Superintendent had fully investigated all of ZG's complaints, it had adequate policies to deal with racism and bullying, and it had appropriately applied its policies, including investigating ZG's complaints, disciplining E and F with detentions, speaking with them about their 'inappropriate' comments, and disciplining Mrs Y in writing for the book incidents. However, it emerged through the Respondent's evidence in the hearing that Excelsior staff had limited understanding of what might amount to 'racist' remarks by its students. 7 The Tribunal notes that the case raised complex issues including: the tension between the ideals embedded in anti-discrimination law and policy and the reality of modern society; the role of the law, media, society, parents and schools in the development of values in children; and the point, in age of the child, type of comment and context of comment, at which a child's inappropriate comments fall within the scope of a school anti-racism policy. 8 After considering all the evidence, the Tribunal found that the Respondent is liable for unlawful discrimination on the ground of race contrary to Section 17 of the ADA and ordered that damages of $6000 be paid and an apology be made. History of the complaint 9 On 29 October 1999, ZG lodged complaints of racial vilification with the President of the Anti-Discrimination Board ('the President') on behalf of his son A, and on 15 November 1999, he lodged claims of race discrimination on behalf of his sons A, B and C. 10 By a letter dated 1 April 2004, letter dated 1 April 2004, the President of the Anti-Discrimination Board (the 'President' and 'Board' respectively) referred ZG's complaints of race discrimination to the Tribunal under s 94(1) of the Act having formed the view that the complaints could not be conciliated. In the referral of the complaints by the Board to the Tribunal, the Director General of the NSW Department of Education and Training was named as sole Respondent. THE LAW The Anti-discrimination Act 1977 11 Section 4 states that 'race' includes colour, nationality, descent and ethnic, ethno-religious or national origin. 12 Section 7 states that discrimination on the ground of race is constituted as follows: (1) A person ("the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of race if, on the ground of the aggrieved person's race or the race of a relative or associate of aggrieved person, the perpetrator: a) treats 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) segregates aggrieved person from persons of a different race or from persons who have such relative or associate of a different race, or c) requires aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have such 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 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. 13 Section 17 states that will amount to unlawful discrimination on the ground of race by educational authorities: '(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. 14 Section 4 states that 'educational authority' 'means a person or body administering a school, college, university or other institution at which education or training is provided'. 15 Section 4A provides that 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 substantial reason for doing the act), then for the purposes of the Act, the act is taken to be done for the reason of unlawful discrimination under the Act. The ADA 1977 should be construed broadly 16 In State Of NSW v Amery (Director-General NSW Dept Of Education And Training) [2006] HCA 14, Kirby J, at paragraph 140 states, 'The sweeping objectives of the AD Act were explained in the lengthy parliamentary debates preceding the passage of the Anti-Discrimination Bill, as "an attempt, as far as legislation can, to end intolerance, prejudice and discrimination in our community…It was the express intention of Parliament that the Act would have "wide-ranging ramifications" for the State of New South Wales…' The duty of a school to its students 17 New South Wales v Lepore; Samin v Queensland; Rich v Queensland, [2003] HCA 4, High Court of Australia, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne, and Callinan JJ dealt with the extent of the duty of care by schools to their students. McHugh J, stated, at para 143, 'The duty [of a school authority] extends to protecting the pupil from the conduct of other pupils or strangers and from the pupil's own conduct. The measure of the duty is not that which could be expected of a careful parent. The statement of Lord Reid to that effect in Carmarthenshire County Council v Lewis is no longer law. Murphy and Aickin JJ rejected the parent analogy in Geyer v Downs saying that it was unreal to apply that standard to "a schoolmaster who has the charge of a school with some 400 children, or of a master who takes a class of thirty or more children".' Gummow and Hayne JJ stated at para 259, '. …In the case of a school authority, it is said that it is "the immaturity and inexperience of the children and their propensity for mischief that lie at the basis of the special responsibility which the law imposes on a school authority to take care for their safety".' 18 In Purvis v New South Wales (Department of Education and Training) [2003] HCA 62 [Purvis' Case], the High Court, Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ considered whether the suspension, and subsequent exclusion, from a State high school of a pupil who repeatedly assaulted other pupils and teachers, and whose conduct was the result of brain damage, contravened the Disability Discrimination Act 1999 (Cth). The High Court found it did not. Gleeson CJ referred to the Disability Discrimination Act (Cth) stated, at paragraph 7, 'The Act deals with discrimination in a normative, not a value-free, context. Section 22, with which this case is concerned, proscribes discrimination "against" a person on the ground of the person's disability... The Act is concerned with discrimination of a kind that the legislature regards as unjust, and makes unlawful...The first respondent owed a duty of care towards its pupils and its staff. That is part of the legal background to the operation of the provisions of the Act dealing with education. In its application to educational authorities, the Act enters an area of relationships governed by legal obligations designed to protect the young and vulnerable. … The obligations which arise from the Act have to be related to the functions, powers and responsibilities of the first respondent. Furthermore, the conduct of the first respondent can only be evaluated fairly in the light of an understanding of those functions, powers and responsibilities. The Act, in its application to educational authorities, and in its prohibition of discrimination against persons on the ground of a disability, requires a judgment both as to alleged differential treatment and as to the ground upon which action was taken. In both respects, it is impossible to ignore the context in which the first respondent, by its officers, was acting. It was charged with the care and protection of all the pupils in the school in question. The first respondent showed concern and sensitivity in its dealings with the pupil. It also recognised its legal responsibilities to the other pupils and to the school staff. If there is a reasonable construction of the Act which avoids a conflict between those responsibilities and the obligations imposed by the Act, then that construction should be preferred. And in the practical application of the Act in an evaluation of the conduct of the first respondent, those responsibilities should be kept in mind.' The Tribunal may order that names or identification of persons involved in proceedings before the Tribunal may be suppressed: 19 The Administrative Decisions Act 1997 Section 75 (2) provides that 'if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason', it may (of its own motion or on the application of a party) make an order, amongst other things, 'prohibiting or restricting the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Tribunal or a witness summoned by, or appearing before, the Tribunal)'. THE TRIBUNAL PROCEEDINGS 20 The Tribunal hearing took place over five days. At the hearing, the Respondent sought an order for students who were under 18 years old at the date of the hearing be anonymous in the Tribunal Decision. Given that the students mentioned in ZG's claims were minors at the time of the alleged incidents, the Tribunal has ordered that all the students mentioned in ZG's claims be anonymous in the Decision. 21 ZG, A, B and C gave evidence for the Applicant, and E was summonsed by ZG to give evidence. F was excused from giving evidence because the Respondent said that the Department accepted what it was alleged by the Applicant that F had said on 11 March 1999. The following Excelsior staff and Departmental staff gave evidence for the Respondent: Mr Ryan, the Principal at Excelsior Primary School at the relevant time; Mrs Rowley, who was C's class teacher and Assistant Principal at Excelsior in 1999; Mrs Morin who was A 's class teacher in 1999; Mrs Ives who was the Anti-Racism Contact Officer (the 'ARCO') at Excelsior in 1999 and at the time of the hearing; Mrs Y who was B's class teacher in 1998; Mr Spargo who was Assistant Principal of Excelsior at the relevant time; Ms McKerihan who was the Superintendent of the Parramatta District (the 'Superintendent') of the Department of Education and Training (the 'Department') in 1998; and Ms Pollack, Acting Manager of Selective High Schools and Opportunity Class Placement Unit in 2000, and Manager of the unit at the time of the hearing. At the hearing, Mrs Rowley, Mrs Morin, Mrs Ives, and Mrs Y gave evidence that they were still teaching at Excelsior in the same positions they held in 1999, Mr Ryan said he had retired, and Mr Spargo said he had been promoted to another school. 22 The evidence before the Tribunal included medical reports from Dr Bloomfield, psychiatrist Dr John Champion, and psychologist Ms Susan Hayes. Dr Bloomfield stated that on 7 November 1999, B was admitted to Westmead Hospital 'for an acute exacerbation of dizziness the past 3 days. He has experienced this intermittently for the past 12 months…but [he has] not previously told anyone about [his symptoms]…B's symptoms cleared completely in the 24 hours he was in hospital. No medication was given and it was decided to investigate him as an outpatient. Principal diagnosis [is] provisionally chronic vestibular neuronitis'. The Tribunal notes that vestibular neuronitis is an inflammation of the vestibular nerve in the inner ear, 'probably caused by a viral infection': , accessed 30 October 2006. Ms Hayes stated that A reported symptoms consistent with anxiety disorder, panic attacks, and post-traumatic stress syndrome, which contrasted with Dr Champion's opinion that A did not have, and had not suffered, post traumatic stress disorder, nor did he have 'any other psychiatric or psychological disorders, symptoms or illnesses'. Dr Champion opined that 'A's current claims relating to mental illness and emotional distress are likely to be a direct result of the continuing focus upon the claimed events at Excelsior School in 1999…[which focus is] driven by A 's father's actions'. 23 In his written evidence to the Tribunal, ZG alleged a number of incidents had occurred to his children at Excelsior including: In June 1998, A's teacher blamed A, in front of the class, for causing 'most of the trouble' between himself and another student D. A heard 'racist remarks' at school, for example, a number of students said 'ching chong china man' to the only other Chinese student in his class, G. A was asked too many times by teachers to pick up papers. A had a nearly empty packet of chips confiscated from him for 10 days, on the occasion when the Deputy Principal, Mr Spargo, saw him eating chips in the playground, A had been lunch monitor and 50 cents was missing from a teacher's lunch bag, and A admitted he didn't receive any money from his parents for chips. A said he had found 80 cents in the playground and this is why he was able to get the chips. On 11 March 1999, in craft class, two students next to A, E and F, and said words to the effect that they did not like Asian and Chinese food and all the Chinese and Asian restaurants should be bombed to make way for more McDonalds and Kentucky Fried Chicken outlets. After this talk, A said E came towards him saying, 'I'm going to kill you A' and 'stabbed' him on the head with his scissors; A had a red mark on his forehead from E's scissors. A was 'dragged' to detention on at least one occasion while others were not made to attend detention. On 12 May 1999 H, I and J punched A during morning recess and the school did not discipline the culprits because they said no one witnessed the incident though another student, K, had told Mr Ryan he saw the incident. On or about 25 October 1999, E, L and M made racially oriented and offensive comments about Chinese people while standing next to A outside the School library. On or about 28 October 1999 E made racially oriented and offensive comments about Chinese people in class. On 28 October 1999 N swore at A and B after school. On 17 November 1999 Mr Ryan deceived A, B and C by telling them untruths that he had rung and spoken with their father and their father had agreed for them to sign their statements when in fact this did not occur. A, B and C were given detention unfairly, including A when he was suspected of taking 50 cents from a teachers' lunch bag but told ZG he did not do this, B for spraying water from a tap when only A had been spraying water, and C for saying 'bum'; A and B were asked to pick up papers in the playground; in his letter dated 3 March 1999 to Mr Ryan and ZG stated that 'teaching staff' 'have been victimizing A and B to pick up rubbish for no reason at all'. Other children said to A and B and other children 'ching chong chinaman'. Other children were unfairly not given detention. For example, B was bullied by a classmate, O, who, for example, said to C 'Suck this' and pointed to his bottom, but the school did not discipline O. In 1998, B was assaulted by his class teacher, Mrs Y, who hit him on the head with a school book on four occasions and though she also hit four others on the head, she hit B the most. Due to an ESL class attendance, B missed out on some classes: On or about 26 May 1999, B missed out on Maths and English, on 30 July 1999 he missed out on Maths, and from May 1999 to August 1999, he missed out on 'some normal lessons'. On 11 October 1999, O called B offensive names, on 12 October 1999 O hit B's head with a book, and on 14 and 15 October 1999, O pinched B's bottom. On 29 October 1999 N punched C in the stomach and pushed C over which resulted in his nose bleeding twice, but the incidents were recorded by the school as accidents and N was not disciplined. Due to an ESL class attendance, C missed out on some classes: On or about 21 July 1999, C missed out on Maths, on 30 July 1999 he missed out on Science lesson, and from May 1999 to August 1999, he missed out on 'some normal lessons'. 24 ZG also claimed that Excelsior's Anti-Racism Policy was inadequate in failing to mention matters such as the definition of racial harassment, and that the Department failed to ensure the school had an adequate policy and that its recommendations as to raising awareness of racial discrimination and recourse for same were not carried out. He also said that Excelsior and Departmental staff victimized his sons and aggravated the harm caused by their conduct including by deliberately giving misleading information to the Police about the scissor incident including telling the Police and the Ombudsman that E was only 9 years old when E was 10, the stabbing was an accident, the scissors were safety craft scissors, and Mr Ryan saying that the matter was investigated by him on the day and then by Departmental senior staff. 25 After the hearing, final submissions were filed by the Applicant on 14 June 2006 and by the Respondent on 30 June 2006, which submissions the Tribunal has considered in reaching its findings. THE EVIDENCE AT THE HEARING 26 ZG and A gave evidence that from mid 1998 the family lost trust in Excelsior after an incident between A and his class teacher Mrs Beattie. A explained the Mrs Beattie incident as follows: 'Well, apparently one of the - one of the kids in the class, D, he alleged that I was like harassing him or something like that and then apparently Mrs Beattie came across his mother at the shops and then I think the following week that - the following week after Mrs Beattie thought okay I'll take this thing into my own hands and she had a go at me in front of the whole class and humiliated me and made me feel uncomfortable, I just didn't want to be in the class'. 27 ZG said, as did A, B and C, that from mid-1998, he took notes on all things which his children had said had been problematic for them during the school day. From late 1998, he had written at length first to the school, then to the Department, Minister, Police and Ombudsman about the matters raised by his children. 28 ZG was asked about an occasion when B was accused of opening a test result and B had said to him that the teacher opened the envelope, not him; ZG agreed that B had told him subsequently that he opened the letter, not the teacher, and ZG agreed that it was fair that he got a detention for lying. However, he said that B may have been not lying but rather, he may have been 'mistaken' or he may have made 'the wrong inference or assumption'. ZG was asked about various instances where the school had disciplined his children and he had disputed this, including when A and B had been given a detention each for spraying water from a school tap, and C got a detention for saying 'bum'. The children in their evidence to the Tribunal admitted doing these things. However, ZG indicated he considered the school was discriminating against them by giving them detentions because he himself considered these things were trivial and didn't merit a detention. 29 Mr Ryan and ZG gave evidence that from late 1998, Mr Ryan asked ZG to put his complaints in writing in order that Mr Ryan could answer them adequately, and that after 11 March 1999, ZG's correspondence to the school intensified, frequently being copied to the Superintendent, the Minister for Education and Training, and the Ombudsman. 30 Mr Spargo, Mr Ryan, and Mrs Rowley all said that everything which ZG raised as a concern was investigated but all, as well as Mrs Morin, said they were concerned that after ZG started complaining to the school, the boys deliberately broke the school rules and teachers were reluctant to discipline them for this. Mr Ryan said the boys were very good workers but started doing 'uncharacteristic' things like A and B throwing wet paper on the ceiling of the toilets. Mr Ryan said he did not ignore such conduct, but 'some teachers would ignore the behaviours if they were inappropriate rather than cause another confrontation with ZG and to potentially alienate ZG and give him a feeling that his children were being inordinately singled out for attention, which they were not'. 31 Mrs Rowley was asked what in retrospect she perhaps felt may have been handled differently when ZG complained; she responded, 'I don't think we should be sitting in this room, I think the Department of Education should have hit this on the head at the time because it was irrelevant and an absolute farce. I'm sorry, it has put teachers, staff through stress, stress that we didn't need, the whole issue is ludicrous there was no discrimination, the boys were dealt with as any other child in that school was dealt with, fairly, consistently and appropriately. I blame the Department of Education … it shouldn't have been allowed to happen, we shouldn't be here and tax payers money shouldn't be being wasted. I should be teaching my class at this point of time, two days I've to be off my class'. 32 Mrs Rowley commented further on her perception of ZG's complaints to the school when commenting on why she sat in with Mrs Ives in an interview with A after the incidents of 11 March 1999; she said, 'Mrs Ives was the racial discrimination person, I know I sat in with her as a support - normally that wouldn't happen. I normally don't sit in on those meetings, again because it was [ZG's] child involved, to protect the teacher I sat in on the interview…to protect the teacher [and] as a support person for the teacher, child, everybody…[because] I knew we'd probably get a two page letter the next day about the interview'. 33 Mrs Rowley was asked about the allegation that N punched B twice in one day and made his nose bleed, and that she had not disciplined N over this, but rather had sent C home with two injury notes indicating his nose bleeds were accidental. She said that N and P with whom C also had problems, were problem children who also caused disruption to other children. Mrs Rowley said that she couldn't remember the particular incident, but 'most of the time', N was on 'positive behaviour management programs', and if she had thought that N was 'at all at fault', she would have punished him; she said, 'I would have made a judgement call. Now we all make judgement calls that are possibly wrong and I'm only human and I can make mistakes but I made a judgement call on the evidence …I would have checked N, I would've spoken to N, I would've spoken to C, I would've spoken to all of the kids, I would've got as many witnesses as I could, particularly being your child and made certain that I was accurate in my decision that N was not at fault. If he had, had been at fault, I would have punished him, put him on detention.' 34 B gave evidence that Mrs Y had hit him on the head four times in class in 1998. He said he talked a lot in class and she did it to stop him talking. He said he cried at the time but he did not tell his father until the end of 1998 because he feared Mrs Y would 'bash' him up if he told his father and his father complained. He said she hit others on the head also. ZG had reported this to the Police and the Department but contrary to what ZG thought should have been the result, the Police did not prosecute Mrs Y and the Department did not dismiss her. Mrs Y conceded she touched children, including B, on the head with a book from time to time in 1998, but she said she only lightly 'tapped' them in 'jovial interaction', as 'a joke', as part of getting the children to interact with' her, to have 'fun', and to 'build up confidence' in the children. She said she would 'never' have used the book to 'discipline a child' or to 'correct behaviour'; she only did this 'in fun' as a 'joke'. She said she did this to B, who was a 'quiet child', to get him involved in 'the culture of fun' she was trying to instil in the class. However, she also said that 'it is possible' she used the book 'to stop him talking'. She conceded that she used different books and these could have ranged from a small exercise book to a maths text. She said B and the other children laughed when she did this and denied B cried. She said she had stopped tapping children on the head with a book in her class, after receiving a letter from the Department telling her this was unacceptable. She said that she did not tap B on the head more times than other students, and denied that she had done this because of B's Chinese race. Ms McKerihan said she had investigated the matter, including talking with B and the other children in B's class who had been hit by Mrs Y with a book, namely, Q, R and O, and she ordered that Mrs Y be told in writing that this was not acceptable practice. She said the letter would stay on Mrs Y' file and she would be monitored to ensure it didn't happen again. She said she didn't realise until she was told in the hearing that Mrs Y had also used textbooks as well as soft cover slim exercise books, but if she had realised, she would have ordered the same disciplinary measure. 35 Mr Ryan, Mrs Y and Mr Spargo were asked whether, as a son of the Executive teacher at Excelsior, E was accorded special treatment; each indicated that they felt this was not the case. 36 All witnesses were asked about the events of 11 March 1999. The evidence at the hearing as to what occurred on 11 March 1999 was as follows: ZG said that A told him on 11 March 1999 that in craft class he overheard his fellow students E and F saying they would kill all the Chinese and Asians, they hated the Chinese and Asians, they would bomb all the Chinese and Asian restaurants and Chinese food tastes like shit. A said that then E had 'poked' him with scissors at about 2.30pm that day. ZG said he saw 'a red mark … about the length of a thumbnail' which, after going to the Police, he treated with water and Chinese ointment. A said that for 'at least' 45 minutes, E and F were 'discussing between themselves', saying in 'loud voices' 'deliberately' so he could hear them, words 'like all Chinese food taste like shit we're going to bomb all the restaurants, they want to like cut down the numbers of Asians, they just didn't want us there, stuff like that'. Then F went to get some wool, and E 'yelled' out 'I'm going to kill you A' and then he 'lunged' at him with his scissors. E said that on 11 March 1999, he and F had been 'talking about how much we didn't like Asian food and that we wanted McDonalds to replace Asian restaurants'. He said, 'I really don't recall anything about the conversation. I just remember what the kind of thing we were talking about.' He also didn't recall how long the conversation went on for, though it didn't go on for a long time. He said he didn't realise A was there until he tripped over his chair leg and 'stumbled' towards A who was sitting down, and he snapped the scissors shut so they wouldn't hurt A and 'as I snapped them shut it cut off some of his hair'. He said 'It was a complete accident' and he thought he definitely did not say 'I'll kill you A '. He said his scissors were normal scissors, not craft scissors; they were about 20cms long, 'a bit longer than others', but 'blunt at the ends'. Mrs Morin said she didn't see the incident or hear what was said by E and F in her class on 11 March 1999. However, A rubbed his head when he spoke with her after the incident, and the area where he was rubbing was flushed. Mr Spargo said that as he recalled it, 'basically [E and F] were talking about what food they liked and someone said, I like McDonalds, I like something else, someone said, I like Chinese. E said, Yuck, I hate Chinese or something to that extent, and … my understanding is the conversation started something about Pauline Hanson… something about, I hate Chinese food and death to all Asians or whatever for cooking it'. He said, 'we did not perceive it as racist talk, we perceived it as inappropriate comments in that … it was silly children's talk that they were escalating their comments off each other… They were talking about the food…'. He said that thought that 'at that stage Pauline Hanson was popular in the press'. He said that after the scissor incident occurred, he believed that Mrs Morin 'reported her preliminary investigations that children had been talking about something and that E had been bumped, slipped, tripped, whatever with the scissors'. Mr Spargo said that the next day he could see a small red mark on A's head. Mr Ryan said he recalled as follows: '[E and F] were talking about - essentially it was about take-away foods as I recall, and they said that there were too many Asian restaurants and that they wanted more KFCs and McDonalds and that type of thing [and] they made some comment about blowing up Asian restaurants'. He said he saw this as 'silly behaviour by ten year old children. I saw that as very inappropriate language, very inappropriate behaviours'. However later he added that he was concerned that the comment was made, he enlisted the aid of the anti-racist person at the school to look into the matter and to counsel the children and to get a report back to him, and he interpreted that as having some overtones of 'racial vilification'. As to the scissor incident, Mr Ryan said his 'impression at the time was that there had not been … a deliberate attack by E on A from the impression that I gained from what Mrs Morin told me and that A had not sustained an injury'. He said he formed the view that E intended to snip A 's hair 'and that it all got out of control…because I took the view at the time that he would not have put the scissors in that place unless he'd intended to snip the hair.. It's a silly prank …by a boy who by and large kept to a pretty even keel but, on that occasion, he let himself down by acting in a silly way as a lot of ten year old boys will do'. Mr Ryan said the next day, he could not see any mark on A's head. Mrs Ives said that Mr Ryan dealt with the incident on 11 March 1999 because it involved the Police and nobody ever told her 'on an official basis' what was said between the children involved, but so far as she knew, there was no racism involved in the incident. As to the scissor incident, she said that from what she was told unofficially after the incident, she understood that 'It was an accident. The child tripped and fell and had a pair of scissors in his hand', and after interviewing the children, she 'thought it was an accident, a pure and simple accident'. The Tribunal notes that Mrs Ives' 'Report for Stan Ryan on interview with A…on 16.3.99', dated 17 March 1999, attached to her statement dated 12 December 2005, states, amongst other things, 'When asked what problems do you have at school A answered - A said 'E brought long sharp scissors, he's going to kill all the chinese and asian (sic)'. Mrs Rowley said she sat in on the interview with A after the scissor incident. She said she had not heard that 'some racist comments' had been made and her recollection of the scissor incident was that 'I heard that the two children were cutting each other's hair' or 'one child was cutting another child's hair'. She couldn't recall who told her this but thought 'it was probably the classroom teacher' or Mrs Y. She said she 'only heard differently after' ZG's letter to the school saying that ZG 'felt that an assault was made'. She said that she knew 'the child was sent down to the office only because' it was ZG's child. Mrs Y said that Mr Ryan had told her that 'E had said inappropriately that Chinese food tasted like shit…And … I think there was a comment that - I don't know whether it was F or E that they wished that all Chinese restaurants would be blown up and be replaced by McDonalds and KFC. It was a - it was a silly statement to have made', and Mr Ryan also had mentioned that A alleged E had said the Chinese and Asians should be killed, that E had come at him with a pair of scissors and said, "I want to kill you, A", and that 'E had attempted to stab A with a pair of scissors'. She said that ZG sent a letter dated 8 December 1999 and a questionnaire, which she had attached to her statement dated 12 December 2005, to at least one family of a student in A's class asking for information about the scissor incident because 'As we see it, it is just not right that the perpetrator can make up a story to cover up his crime and get away with attempted murder literally and to say it was just an accident…' 37 Ms McKerihan was asked by the Tribunal whether she saw 'conversations about burning down Chinese restaurants to make way for McDonalds and so on' as racist, and she responded that 'If it was substantiated that they were the comments that were made, that's clearly unacceptable behaviour and that's racist'. 38 The Excelsior staff from 1999 were each asked at the hearing whether 10 year olds saying they hated Asians and Chinese, they disliked their food, and wanted to bomb their restaurants to make way for more McDonalds and Kentucky Fried outlets, was in their opinion 'racist'. Mrs Ives said she would consider such talk was racist. Mrs Y said she considered the conversation between E and F was a private conversation, about food and restaurants. However, Mrs Morin said such talk was 'nonsense', and all the other teachers initially characterised such talk as childish nonsense, though they subsequently conceded on reflection that such talk was racist. Mr Ryan added that he interpreted the remarks as having some overtones of racial vilification, and he enlisted the aid of the anti-racist person at the school to look into the matter and to counsel the children and to get a report back to him. Mrs Ives' evidence was inconsistent with this since she said that she wasn't told officially the nature of the remarks, and so far as she knew they were not racist. She also said that she interviewed A with a support school friend, S, with him, she gave a summary of the interview to Mr Ryan, and Mr Ryan took over because it became a Police matter. 39 Mr Ryan said he spoke with the parents of E and F about the matter and he advised them that the children had acted inappropriately, and he spoke with E and F and told them that it was something that they should not have done and must not do again. He said that when each of them admitted that they had done the wrong thing and was given a detention', 'knowing the children', and 'that what they had said was silly behaviour by ten year old children', he was convinced that 'the matter would not go beyond that'. He said he thought the parents would speak to the children about this. However, Mrs Y indicated she and her husband did not talk to her son about the comments but rather, they left it to the school to deal with, though she also said she and her husband had discussed with E 'the inappropriateness of the comments' and 'about the inappropriateness of racism', and also that she could not recall if she and his father had spoken to E about the remarks. Mr Ryan also said he had spoken with the other students in A's class to see if any had anything to say about the incident, but none of the students volunteered anything and he had asked the school counsellor, Mrs Colleen Kemp, who was also a psychologist, to talk to A as to 'the level of discomfort that A might have felt with the matter', but ZG rejected the offer of counselling. ZG said he rejected the offer of a counsellor because A had already spoken with Mr Ryan and Mrs Ives and Mrs Rowley, he didn't want A 'to suffer a third trauma' and he felt the school would try to 'bamboozle' A into giving a third version of what happened. 40 Mr Ryan did not dispute that he had told the Police incorrectly that E was nine years old, not ten, and that the scissors used by E on 11 March 1999 were craft scissors without viewing these scissors. All the Excelsior teachers said that they had not considered viewing and/or confiscating the scissors used in the incident on 11 March 1999 and each, apart from Mrs Morin, said that they assumed that normal school craft scissors were involved. Mrs Morin said E used his own, normal/not craft scissors. 41 Mr Ryan and Mrs Ives were asked about the incident in October 1999 where E and other boys were alleged by A to have been saying Chinese food tasted like 'shit'; they said they did not relate this matter back to the incidents of 11 March 1999. Mr Ryan and Mr Spargo were asked whether in their view, E's comments in March and October 1999, should have been considered as excluding him from his subsequently being appointed vice captain of the school, given the Excelsior policy indicated a vice captain should be exemplary; they replied they did not. Mrs Ives said she spoke to the children involved about the alleged comments made in October 1999, and 'worked out from interviewing the children, [E] was … having a conversation with another child that was not aimed at A at all…A may have overheard it and taken offence and I listened to that, you know, he felt hurt by the comment but the comment had not actually been made to him with a premeditated'. She said that she listened to A's 'side', and 'told the children that they had offended him by their conversation' and cautioned them, and she thought that one of the children in the library incident, K, got a detention for saying 'ching chong chinaman or something like that'. ZG asked her whether she had said to the children that it was alright to say Chinese food tastes like 'shit'; she said she had not, and would not, say this or use the word 'shit' to children. 42 The Excelsior teachers all said Excelsior was a harmonious school where racism generally didn't occur but wouldn't be tolerated. Mr Spargo and Mrs Ives said that values such as tolerance were taught as a component of the peer support program and general classroom work, and multicultural days were held at Excelsior from time to time. Mrs Ives and Mr Ryan gave evidence that they had ARCO training initially in 1992, and had not retrained since then though they had done 'in service' training in 1993 and 1995, and Mr Ryan said he received ARCO material from the Department from time to time. Mr Ryan and Mrs Ives could not recall any action taken at Excelsior to implement the recommendation of Ms McKerihan that the school needed to raise awareness in the school community of the role of the ARCO and the anti-discrimination officer and the grievance procedures. Mrs Ives' evidence indicated that the Excelsior anti-racism policy had remained substantially the same as it was in 1999. Mrs Ives indicated in her evidence that the anti-racism procedures and policy at Excelsior had remained the substantially the same since 1999. 43 Mrs Ives was asked about her usual course of dealing with racist statements. She said that her usual course if a child 'actually reports to a teacher that there is a racist comment made', was 'it's treated very seriously and, you know, to the extent that they come and actually talk to me in my room with a support person and, you know, we treat it as unacceptable basically…and make the children clear that it is unacceptable'. She said her role as the ARCO was 'to sort out the problem and so everybody feels listened to and try and, you know, have a resolution that everybody is happy with…children will say all sorts of things like, you're fat …these sort of things occasionally happen. It's more to do with, you know, an argument between the children and something inappropriate is said, whether it's, you're fat or whatever'. She said that she had only two or three instances a year of racist allegations and did not make any detailed notes or records of these instances because she saw the role as 'more conciliatory, you know, problem solving'. Mrs Ives said the students were told that they could come to her with racist issues, but she was not aware of who told the children this or when the children were told this. She said that in 1993, the anti-racism policy was sent 'home to the parents with a note with the anti-racism policy outlining, you know, the grievance procedures', but so far as she was aware, nothing on this topic had been sent to parents since then. She said she hadn't checked whether new parents get the anti-racism policy and note in the package they are given when children start at the school. 44 Ms McKerihan said that the Department managed racial complaints in the following manner: 'From a Department perspective what we do is to - we would think even a small number of complaints is of concern and for that very reason we have anti-racism contact officers in schools, they're trained, there is a multicultural education policy that is mandated for implementation, there is a requirement for schools to have a student welfare policy. So what we do is to put a policy structure around schools operations to ensure that there is an awareness of the appropriate practice. We have a code of conduct of teachers. So that we've got a range of supportive structures to ensure that if there are allegations that are made there is an appropriate process to move forward. Every principal is responsible for ensuring a safe and secure learning environment. All teachers are responsible for ensuring that in their classrooms. There are numerous concerns that are raised given the large number of schools that we have in our system. They're of different levels. What the Department has an absolute commitment to do is to say that every complaint must be appropriately investigated'. 45 Ms McKerihan said that in the case of ZG's complaints as to 11 March 1999, she got members of her staff to 'go in and do an independent review of how effectively those policies, the school policies, were being implemented and how well they were understood'. She said that in her direct dealings with the school, with the specific instances referred to her, she 'didn't find evidence of racial behaviour'. She said that the outcome of the review 'was that the school had policies in place, that they were in most instances consistent with departmental expectations', though there 'were a couple of areas where the policy needed to be updated and that was the recommendation'. She said the recommendations were that there was a need to raise the awareness of the community of there being an ARCO in the school, and to develop an anti-bullying policy and program. Ms McKerihan said these recommendations 'were then to be monitored to ensure that they'd been implemented' by 'a continuing officer who had supervisory responsibility of both the multicultural education consultant and the student welfare consultation to manage that process' because she was aware that she was moving out of the Superintendent's role, and she 'made sure' that her successor in that role, Mr Allen, 'was aware of that situation'. FINDINGS OF FACT 46 The Tribunal notes that in the hearing all the witnesses appeared to have difficulty remembering things clearly, although to an extent, the Tribunal accepts that this was not surprising given some seven years had elapsed between the events and the hearing. 47 Though ZG recorded events at school as related to him by his sons, he had no direct knowledge of these events apart from what his children, who were approximately 7, 9 and 10 years old at the relevant time, had told him. 48 The Tribunal also notes that at the hearing, apart from A 's recall of the events related to the incidents of 11 March 1999, A, B and C did not recall clearly and independently the events which were the subject of ZG's complaints. For example, when ZG asked A who asked most of the questions at the meeting he had with Mrs Rowley, Mrs Ives and S, A at first answered that Mrs Ives did, then that both Mrs Rowley and Mrs Ives were asking questions, and then he said that Mrs Rowley was asking most of the questions, and then he said he did not know who was asking most of the questions. As well, A, B and C each indicated that their statements were based on their father's notes and that their father had finalised their statements for them, and ZG himself said he had typed his son's statements, 'made some modifications', and supplied some letters to the children. 49 As well, ZG's evidence in the hearing indicated that on all matters which were related to him by his sons, he unquestioningly accepted as true the version given to him by his sons, and could not accept the school not doing the same. For example, ZG could not concede that B lied about the teacher opening a letter; he felt B may have been mistaken. Also, apart from accepting it was justified that B received a detention for lying about opening the letter, ZG could not concede that the school may sometimes have been justified in its actions, for example, when C received a detention for saying 'bum'. As well ZG indicated that he considered the school was discriminating against his sons for giving them a detention because he himself considered these things were trivial and didn't merit a detention. 50 Further, the Tribunal finds that B's claim made in 2005, and reiterated by B and his father at the hearing, that Mrs Y taped some students' mouths up with masking tape in 1998, is not credible. The Tribunal finds that if this had occurred, even though not to one of ZG's children, it is implausible that ZG would not have complained of this to Mr Ryan and others, given he recorded all that his sons said happened in school, and he pursued other claims against Mrs Y. 51 As to the evidence of E, the Tribunal finds that this was not very useful since he did not appear clearly to recall events from 1999. This was understandable given his age at the relevant time, and the time lapse between the events and the hearing. 52 After considering the evidence, the Tribunal finds that while the Applicant's evidence appeared genuine as to what he considers occurred, on its own it is unreliable as to the various claims of discipline at Excelsior in 1998 and 1999. 53 As to the Respondent's evidence, the Tribunal found Ms McKerihan and Ms Pollack to be genuine and credible in their evidence. As to the evidence of the Excelsior staff, the Tribunal notes that their evidence indicated that ZG's frequent correspondence with the school had caused rather negative reaction in the school. For example, Mr Ryan, Mr Spargo, Mrs Rowley, Mrs Y and Mrs Morin all spoke of the ZG children misbehaving after their father started complaining about discipline matters and indicated that some teachers would not discipline them for fear of him complaining. Mrs Rowley went furthest in her evidence that ZG's complaints were a 'farce', there was no discrimination, he had put the teachers under stress, and she needed to sit in on Mrs Ives' interview with A and S essentially to protect Mrs Ives. After considering all the evidence, the Tribunal finds that at least Mrs Rowley lacked independence in dealing with ZG's complaints of racism at Excelsior. 54 After considering all the evidence, the Tribunal finds the facts as follows: 55 From about June 1998, when A told his father that he was reprimanded by Mrs Beattie in front of the class, the family did not trust Excelsior. After this, ZG kept notes of what the children told him happened at school and complained to the school at first orally, and from November 1998, at the invitation of Mr Ryan, in writing. Subsequently, he also wrote and/or copied a number of other letters to the Superintendent, the Minister, Police and the Ombudsman. In his letters, he accused the staff of being unfair, and of other more serious conduct such as lying. The teachers became cautious in their dealings with the ZG children and considered that the children sometimes broke the rules knowing that if they were disciplined, ZG would complain. 56 B and C missed some classes because they were required to attend ESL classes. However, the Tribunal finds that the children were enrolled in ESL because in their family, Mandarin was spoken at home, and when ZG complained that he preferred them not to miss usual classes, the school accommodated his concerns. 57 ZG's sons alleged some matters which when raised by ZG with Excelsior, were either incorrect, such as when B incorrectly told him his teacher had opened his test results, or lacking substance, such as when ZG complained about A and B being given detentions for spraying water and C for saying 'bum'. 58 ZG's sons alleged some matters which, if true, appeared to be of substance including the following: C told him he was bullied by N but N wasn't disciplined, even though the injury note sent home recorded he had been punched; B told him Mrs Y hit him and others with a book in class; the children told him that they heard 'ching chong chinaman' and the like being said at school; and A told him that on 11 March 1999, E and F had said things like they hated all Chinese and Asians and were going to bomb their restaurants to make way for more McDonalds and Kentucky Fried chicken outlets and then E threatened to kill him, and poked him with scissors. 59 In relation to C's allegations about N pushing then punching him and making his nose bleed, the Tribunal is unable to make a finding as to what actually happened, given C's version was based on what he told his father some years ago and Mrs Rowley did not see the incident. 60 In relation to the allegation of Mrs Y hitting B with a book four times in 1998, the Tribunal notes that B said he talked a lot in class, and Mrs Y conceded that she may have tapped him on the head to get his attention when he was talking. The Tribunal also notes that Mrs Y said that B and the other children did not cry when she did this, which is consistent with B's statement to the Police that he didn't say anything when this happened to him, nor did he cry because 'it didn't hurt enough to cry' [Police Interview with B on 10 December 1999, Annexure 60 to ZG's statement dated 27 July 2005]. After considering all the evidence, the Tribunal finds that Mrs Y lightly hit B up to four times, and other children an indeterminate number of times, on the head in class with whatever schoolbook came to hand. However, the Tribunal is not satisfied that B was overtly upset at this, nor that he suffered any significant physical or psychological harm from this, nor that he feared Mrs Y would harm him if he reported this. This is because the Tribunal finds it implausible that if true, ZG would not have told Excelsior earlier, given B allegedly told him of being hit/hurt at the end of 1998, from mid-June 1998 ZG daily recorded the occurrences at the school related to him by his sons, and from November 1998, ZG detailed in writing to Excelsior even apparently minor concerns. 61 As to the incidents of 11 March 1999, the Tribunal finds as follows: On 11 March 1999, in craft class, E and F said words to the effect that they would kill all the Chinese and Asians, they hated the Chinese and Asians, they would bomb all the Chinese and Asian restaurants and Chinese food tastes like shit. The talk was heard by A who was sitting next the children. The Tribunal also finds that Mr Ryan spoke with E and F to ascertain what was said, and asked the class had they seen or heard anything, but E and F were not given ARCO counselling by him or Mrs Ives, and E's parents did not discuss with him the racist nature of what he had said. Mrs Ives spoke with A and his support friend, S, and Mr Ryan offered counselling for A with the school counsellor who was also a psychologist, but these actions were taken by Excelsior to assist if A was upset by the scissor incident rather than as anti-racism steps. 62 Given the inconsistency in the evidence of E and A as to what occurred in relation to the scissor incident, the Tribunal cannot be satisfied as to what E said directly to A or the manner in which his scissors came to make a small red mark on A's head on 11 March 1999. However, the Tribunal finds that the scissors were larger than usual, and not school and/or craft scissors, Mrs Morin did not consider confiscating the scissors, and no other teacher at Excelsior checked the scissors or considered confiscating them. Mr Ryan told the Police incorrectly that E was nine years old, not ten, and that the scissors used by E on 11 March 1999 were craft scissors without viewing these scissors. 63 On or about 25 October 1999, E and some other boys spoke outside the library in A's hearing words to the effect that Chinese food tasted like shit, and 'ching chong chinaman'. 64 All of ZG's complaints were investigated by Excelsior and in the cases of the allegations of 11 March 1999 and Mrs Y hitting students in 1998, by the Department. The Excelsior anti-racism policy did not change substantially from 1999 to the time of the hearing. The Department found that the school community (staff, students and parents) at Excelsior was not adequately made aware of the anti-racism policy in 1999, and the Department's recommendations as to rectifying this were not carried out by Excelsior staff. THE TRIBUNAL'S DECISION AND REASONS FOR DECISION 65 It was accepted between the parties, and the Tribunal is satisfied, that ZG and his sons A, B and C are of the Chinese race, and Excelsior and the Department are educational authorities within Section 17 of the ADA. 66 The Tribunal accepts that ZG and his sons felt Excelsior was unfair in its treatment of A, B and C and that the Department did not investigate his complaints fairly. However, the Tribunal must assess the alleged acts objectively. 67 The Tribunal has considered ZG's claims in two parts, first, matters other than the remarks made by E and F on 11 March 1999, by E and other boys outside the school library on about 25 October 1999, and children in the school saying 'ching chong Chinaman', and secondly, the said remarks. The Tribunal's findings as to ZG's claims OTHER than the claims as to the remarks 68 ZG alleged that because of his sons' race, Excelsior staff were unfair in their discipline of his children at Excelsior, including in confiscating A's chip bag, giving detentions to the ZG children, having A brought to detention, determining conflicts between the ZG children and other pupils at the school, and sometimes speaking with the children in a way the children told their father was frightening or rude. ZG gave evidence that other children were not made to attend detention and other children were not treated the same way as his sons, for example, M was not disciplined for pushing and punching C. However, his examples were based on what he considered should have been the disciplinary approach at Excelsior and what his children had told him of events. Also, ZG's view was not always an impartial view, given he considered the school to be wrong if the school disagreed with what his children had told him, some minor matters such as the confiscation of the nearly empty chip packet appeared to have disproportionate significance in his view, and he was unable to accede the school authority to discipline his children without his approval. 69 The Tribunal notes that the role of a teacher is a challenging one. It is different to that of a careful parent: New South Wales v Lepore; Samin v Queensland; Rich v Queensland [2003] HCA 4, per McHugh J, at para 143. Amongst other things, the teacher's responsibilities are to all the children in the class/school. In exercising these responsibilities, a teacher is called upon to implement a growing number of policies which reflect the concerns of the community, the law, and evolving concepts of best practice in teaching. 70 After considering all the evidence, the Tribunal is satisfied that the school staff members were well intentioned, dedicated professionals who genuinely had attempted to behave dispassionately for a long time in the face of ZG's allegations including that the school staff could not be trusted, that on occasion, Mr Spargo and Mr Ryan lied and lost their temper with his children, that the school staff had no authority to give a detention to his children over what he saw as trivial matters, and in Mrs Y' case, that she had criminally assaulted his child and should be dismissed. The Tribunal also is satisfied that in matters of discipline, the Excelsior teachers were more than usually careful in their discipline of the ZG children, not because of the children's race but rather, because they were aware that ZG would complain if he disagreed. 71 Nevertheless, given the evidence of the Excelsior teachers who considered that on occasion, ZG's sons would break the rules because if they were punished, their father would complain, and the tension expressed most robustly by Mrs Rowley which ZG's complaints caused at Excelsior, the Tribunal considers it is possible that on some occasions, the teachers were sometimes impatient and not always fair with ZG's sons, and did not always take their complaints seriously. If this is the case, the Tribunal finds that this was unacceptable and unprofessional. However, after considering all the evidence of the Applicant and Respondent, the Tribunal is satisfied that if any of the alleged unfairness in disciplining of ZG's sons occurred, Excelsior staff did not act, even in part, because of the race of the ZG children. Further, the Tribunal is not satisfied that Excelsior staff would have acted differently in the same or similar circumstances in the case of a child who was not of Chinese race. 72 As to Mrs Y tapping B on the head four times with a book, while the Tribunal agrees with Ms McKerihan that this is inappropriate, the Tribunal notes that ZG did not mention the issue of race when he first raised the complaint to Excelsior. After considering all the evidence, including that Mrs Y hit three other, non-Chinese, students similarly, the Tribunal is not satisfied that Mrs Y tapped B, or tapped him more often, even in part because of his race. Further, the Tribunal is not satisfied that Mrs Y treated the children of non-Chinese race in her class in 1998 differently to she treated B. As well, the Tribunal is satisfied that the Department did not differently investigate and take action on the complaint about Mrs Y, even in part, than it would have investigated and actioned the allegation if made in respect of a student of non-Chinese race. 73 ZG claimed that the Excelsior staff and the Department victimized his sons and aggravated the harm caused by their conduct including by deliberately telling the Police and the Ombudsman that E was only 9 years old, 'deliberately distorted/fabricated the facts of the stabbing as an "accidental action"', saying the scissors were safety craft scissors, and by Mr Ryan giving 'misleading and inaccurate information' to the Police, the Ombudsman and other agencies that it was investigated by him on the day, and also by the Area Superintendent, Assistant Director General and the Case Management Section of the Education Department. 74 The Tribunal finds that it is unacceptable that Mr Ryan and/or other Respondent staff told the Police that E was nine years old, not ten, and that the scissors used by E on 11 March 1999 were craft/safety scissors without viewing these scissors. However, after considering all the evidence, including that ZG was seeking to bring criminal charges of attempted murder against a 10 year old student of the school/son of one of the teachers who had said the incident was an accident, the Tribunal is not satisfied that these statements were made because of A's race or that Mr Ryan or other of the Departmental staff would have said differently in the case of a child who was not of the Chinese in the same or similar circumstances. 75 After considering all the evidence, the Tribunal finds that ZG has not established that his claims, other than those considered below, amount to unlawful discrimination by the Respondent on the ground of race within Section 7 and/or 17 of the ADA. The Tribunal's findings as to ZG's claims that remarks were made by E and F on 11 March 1999, by E and other boys outside the school library on about 25 October 1999, and by children in the school saying 'ching chong Chinaman'. Did the remarks amount to 'racist' remarks? 76 The Excelsior teachers indicated at the hearing that they did not initially (and in Mrs Morin's case, at all) identify the comments made on 11 March 1999 as racist because the speakers involved were children, the conversations were between students, overheard by A rather than said directly to him, and also, the conversations were perceived to be of food with no racial implications. The Tribunal notes that the definition of 'racist' is not universally well understood. The Tribunal notes that in her paper, 'Is Australia a racist nation', Zita Antonios, Race Discrimination, HREOC, 8 July 1998, touched on this; she stated, 'The problem is not with an understanding that racial discrimination is profoundly wrong. With a few virulent exceptions, parallelled in other countries, Australians reject overt racism. That is why the term has so much currency at the moment. It is fired as a common term of censure across a political no-man's land of social justice, where Indigenous rights, multiculturalism and Asian immigration are both attacked and defended by appeal to the same catchcries of fairness and equality. The real problem in Australia lies in the lack of a commonly understood meaning for these words.' 77 HREOC discussed the meaning of 'racism in its paper 'Combating Racism in Australia, a discussion paper by HREOC for the World Conference against Racism', HREOC, September 2001; HREOC stated, ' Racism exists in many different forms. Generally, racism is a set of beliefs, often complex, that asserts the natural superiority of one group over another, and which is often used to justify differential treatment and social positions. This may occur at the individual level, but often occurs at a broader systemic or institutional level.' 78 ZG's allegations are about a primary school where students ranged up to 11 years of age and came from a variety of backgrounds. The Tribunal has considered the reaction of the Excelsior teachers, including the two ARCO trained teachers at the school, Mr Ryan and Mrs Ives, at the hearing that the comments found to have been made between E and F on 11 March 1999, were 'silly' 'childish' talk, albeit on questioning some (not all) conceded the remarks were inappropriate and could be viewed as racist. Of course, on the one hand, the talk was 'childish' given the speakers were children. However, the children involved were 10 (E) and 11 (F) years old and arguably of sufficient comprehension to be expected to discuss the racist nature of their talk. This is especially so given all the Excelsior teachers were adamant that racist talk was not tolerated at Excelsior, and the Excelsior anti-racism policy and the ARCO were designed to discourage racism in the school. For example, Mrs Y indicated in the hearing that whenever she encountered a student in her class of 7 year olds making racist comments or behaving in a racist manner she did not tolerate it in her classroom, but rather she dealt with the issue immediately, spoke to the child responsible, explained to them why it was unacceptable, reprimanded them, and asked them to apologise. As to the remarks being in private conversations between children, the Tribunal notes that E and F were next to A on 11 March 1999, and one of the boys outside the library on or about 25 October 1999 said words like 'ching chong chinaman', which is a fair indication that the children on these occasions knew A could hear what was said. In any case, the Tribunal considers that though context is important, in public places such as schools, racist talk per se should be a concern, whether or not it strikes its target. As to the conversations being about food, the Tribunal finds that the additions on 11 March 1999 of hating Chinese and Asians and wanting to bomb their restaurants, and in October 2005 of words like 'ching chong chinaman', obviously take the conversation to another level than food. 79 After considering the evidence, the Tribunal finds that the remarks of E and F on 11 March 1999, and the remarks of E and other boys outside the library, constitute racist remarks. Did Excelsior and/or the Department unlawfully discriminate against the ZG children on the ground of race? 80 The Anti-Discrimination Act 1977 should be construed broadly: State Of NSW v Amery (Director-General NSW Dept Of Education And Training) [2006] HCA 14, Kirby J, paragraph 140. 81 The legal responsibilities of a school authority include a duty to take reasonable care for the safety of pupils: New South Wales v Lepore; Samin v Queensland; Rich v Queensland [2003] HCA 4. The duty of a school is not to the extent of a careful parent: ibid, per McHugh J, para 143. 82 Consistent with the reasoning in Purvis' Case, the Tribunal has looked at the context in which the Respondent in the present case was acting. In dealing with the allegations of racist remarks, Excelsior had to balance its responsibilities towards A with its responsibilities to its other students. It must have been daunting to have ZG making allegations of attempted murder against E. Nevertheless, the legal duties of the school and the Department included complying with the ADA. Also, the instance on 11 March 1999 was followed by at least one other documented instance of E being involved in racist remarks, that is, on or about 25 October 1999. 83 The objectives of the ADA were to end intolerance, prejudice and discrimination in our community: State Of NSW v Amery (Director-General NSW Dept Of Education And Training) [2006] HCA 14, per Kirby J at paragraph 140. 84 In 1999, the issue of racism was much in the public media, not least of all because of the focus on Pauline Hanson who was elected to Federal Parliament in 1996. Ms Hanson founded the One Nation party, and articulated her party's policies as follows in her maiden speech in the Legislative Assembly on 10 September 1996 ( accessed 20.10.06) 'I and most Australians want our immigration policy radically reviewed and that of multiculturalism abolished. I believe we are in danger of being swamped by Asians. Between 1984 and 1995, 40 per cent of all migrants coming into this country were of Asian origin. They have their own culture and religion, form ghettos and do not assimilate'. 85 The issue of racism remains highly controversial, given the continuing focus of the media, National and State governments, and the public, on issues such as immigration and refugee policy in Australia, the events of and after 11 September 2001, the race riots in Cronulla in December 2005 (see for example, 'Cronulla riots: left-wing, politically correct journalists slag off Aussie patriotism', by Martin Lehmann, The Australian, 13 December 2005), and the current debate over whether adoption of Australian 'values' should be a condition of citizenship (see for example, 'Our values or go home: Costello', by Josh Gordon and Jewel Topsfield, The Age, 24 February 2006, and 'Beazley mauled over visa conditions', by Dennis Shanahan, The Australian, 13 September 2006). 86 The Respondent in the final submissions filed 30 June 2006 stated 'The Tribunal needs to consider whether the respondent acted appropriately in the aftermath of the incident [on 11 March 1999]'. The Tribunal agrees with this statement. 87 Ms McKerihan said that the Department had an 'absolute commitment' to appropriately investigate every complaint of racism. From 1992, the Department has had an anti-racism policy. The 1992 policy stated amongst other things: The Department rejects 'racism in all its forms' and 'makes a commitment to eradicating racial discrimination in the learning and working environment'; 'Silence and denial are fundamental to racism'; and 'the Department acknowledges its responsibility to provide internal mechanisms for action [on complaints of racism]'. The current anti-racism policy of the Department states, 'The NSW Department of Education and Training rejects all forms of racism. It is committed to the elimination of racial discrimination - including direct and indirect racism, racial vilification and harassment - in its organisation, structures and culture, in its curriculum, and in the learning and working environments for which it is responsible.' 88 The Department indicates the approach it expects schools to take to racism in the classroom in the website 'Racism: No Way' for schools is stated to be an 'Australian anti-racism education initiative managed by the Department of Education and Training on behalf of education systems nationally' ( 30 October 2006). For example, the website states, 'Discussion may arise around issues of name calling and other types of offensive language... It is important to emphasise that racist jokes have no place in the context of a school or workplace, just as sexist jokes or ones about people with disabilities have no place. What people choose to talk about or joke about away from the school or workplace cannot be regulated in the same way.' 89 The website (ibid) includes lesson plans for upper primary 10-12 year old students, and teachers' notes; for example, the teachers' notes on Racist Behaviour' for 10-12 year old students states, amongst other things, 'Both federal and state or territory governments have enacted anti-discrimination and equal opportunity legislation and established its associated infrastructure. In addition, Australia is a party to a number of international agreements that impose obligations in regard to racism, racial discrimination and discrimination in education… The Anti-Racism Policy Statement was released in 1992 and is mandatory in all government schools… The Multicultural Education and Training Policy (1998) sets out the goal and principles underpinning education in and for a culturally diverse society. The accompanying Planning Framework provides broad strategies and actions in the three focus areas of social justice; civic responsibility and community harmony; and productive diversity. The Student Welfare Policy (1996) has three focus areas: effective learning and teaching; positive climate and good discipline; and community participation. It emphasises the need for a safe, caring school environment which recognises the diversity within the school community and provides programs and support which acknowledge difference and promote harmony…. 90 The Tribunal notes that the above website was not launched until October 2000 [, accessed 30 October 2006], and also accepts that the wording of the above Departmental policies may differ from the exact wording which applied in 1999. However, Mrs Ives indicated in the hearing that the Excelsior 'Anti-Racism Policy' before the Tribunal at the hearing was essentially (or all) the same as it was in 1999. The Excelsior Anti-Racism policy stated, amongst other things, 'The success of legislation has shown that effective action and sanctions against racist behaviour are an essential counterpart to education and the promotion of racial harmony through the curriculum for the dismantling of racism'. 'At Excelsior Public School we reject racism in all its forms. We are committed to the elimination of racial discrimination - including direct and indirect racism, racial vilification and harassment - in our organisation, structures and in our learning and working environment.' 'In fulfilling this commitment we will …ensure that all staff understand and fulfil their responsibilities to implementation of this policy'. 91 The 'Anti-Racism Grievance Procedures' provide for complaints to be made to the 'nominated contact officer', who refers the complaint to the school executive who 'will then interview all parties'. The contact officer will then 'prepare a report within 5 days of the incident'. The executive 'may then attempt further conciliation or take further action and advise all parties. Action may include a support program, formal disciplinary action or dismissal of the complaint'. Should any party be unhappy with the decision they may appeal to the next senior officer within 20 working days. The case will then be reviewed with 'further discussion, conciliation and reach a decision within 10 working days'. 'The principal or other senior officer will be responsible to monitor the situation'. 92 The Tribunal notes that the teachers from Excelsior who gave evidence at the hearing uniformly indicated that in their view, Excelsior was a harmonious school. As well, Excelsior and the Department had policies against racial discrimination, and Excelsior had two ARCO trained teachers, Mr Ryan and Mrs Ives. 93 ZG claimed that the School's Anti-Racism Policy was inadequate. The Tribunal notes that Anti-Racism policy was one of a number of policies on arguably equally important matters, including the following: 'Gender Equity Policy', 'Gifted and talented Students Policy', 'Homework Policy', 'Immunisation Policy', 'Integration/Special Education Policy', 'Critical Incidents Management Policy', and 'Student Leadership Policy'. The policy document was intended for students, parents and staff at a primary school, that is, a group of readers from across the spectrum of education, age, abilities and experience. While it may be desirable for the document to contain as much information as possible, nevertheless, a policy document is not useful if it is so large and detailed as realistically not to be read by anyone. Having considered the Anti-Racism Policy of Excelsior, it appears to the Tribunal to be adequate, though of course, any policy can be improved upon. In this case, the Tribunal considers that the specific wording and content of a policy document is a matter for the Department, in liaison with bodies such as HREOC and parents and teacher groups, to develop. The Tribunal finds this claim not established. 94 However, the Tribunal also notes that it is not enough to have an adequate policy, the policy must be implemented: D -v- Berkeley Challenge Pty Ltd [2001] NSWADT 92. 95 The Tribunal notes that both Mrs Ives and Mr Ryan gave evidence that although they had been trained initially in 1992, they had no further ARCO training other than 'in service' training in 1993 and 1995; Mr Ryan mentioned materials were sometimes sent by the Department but he did not indicate that he or Mrs Ives read these materials. Further, the evidence of Mr Ryan and Mrs Ives did not display any real focus on the ARCO role. For example, Mr Ryan viewed the conversation between E and F as to bombing Chinese restaurants and the like as 'silly' and 'inappropriate', and Mrs Ives was unsure as to when the anti-racism policy was sent out, if at all, after 1993. Neither Mr Ryan nor Mrs Ives followed the Anti-Racism school policy in dealing with the incidents of 11 March 1999. Mr Ryan did not link the incidents of 11 March 1999 and library incident concerning E. Mrs Ives also did not link the incidents of 11 March 1999 and the library incident because she said at the hearing that she was unaware any racist comments were involved on 11 March 1999, which appears inconsistent with her report dated 17.3.99 to Mr Ryan after speaking with A and S in which she noted that A had said to her, amongst other things, 'E brought long sharp scissors, he's going to kill all the Chinese and Asian'. Neither Mr Ryan or Mrs Ives linked these incidents with the allegation raised in ZG's letter to Mr Ryan dated 12 November 1998 that children in the school were saying 'ching chong chinaman', and indeed Mrs Ives gave evidence that she had never been aware of children in the school saying 'ching chong chinaman' even though she also gave evidence that this was said in the library incident. 96 As well, Mrs Ives' evidence indicated that in her role as the ARCO, she was reactive rather than proactive. Neither Mr Ryan nor Mrs Ives had taken steps to maintain their training, nor was there any evidence that the Department had taken steps to ensure the training of the ARCO at Excelsior was maintained, nor to ensure that they were doing their job as ARCOs. Moreover, neither Mr Ryan nor Mrs Ives (nor anyone else) appeared concerned to implement the recommendations which followed the Departmental inquiry which included, amongst other actions, that Excelsior should raise the awareness within the school community of the existence and role of the ARCO. Further, the Department did not monitor the situation to check that its recommendations were in fact implemented. 97 Further, the Tribunal notes that the responses of the Excelsior staff as to whether the talk alleged by A and ZG to have occurred between E and F was racist, and Mrs Ives' evidence that she was not aware that the incident on 11 March 1999 involved racist talk, at best indicated a lack of understanding of racism by the staff at Excelsior and a lack of familiarity with the policies of Excelsior and the Department on anti-racism. The Tribunal notes that Ms McKerihan said in the hearing that in her 'direct dealings with the school' with the specific instances referred to her, she 'didn't find evidence of racial behaviour'. However, ZG's letter dated 23 March 1999 to her as Superintendent dated 23 March 1999 said, amongst other things, '…both E and F said "I'll kill all Chinese and Asians…and blow up all the Asian and Chinese restaurants"', which comments Ms McKerihan agreed in the hearing were racist. Given that the Tribunal found Ms McKerihan to be a credible witness, the Tribunal finds that the evidence indicates that Mr Ryan and/or his staff misinformed the Department as Mr Ryan had misinformed the Police. 98 If the legislation, anti-racism policies of Excelsior and the Department, and ARCO training were to be more than mere rhetoric, Excelsior and the Department needed to create at Excelsior an environment in which, so far as possible, 'childish' talk which was racist was discouraged. After considering all the evidence, the Tribunal finds that despite the policies, ARCOs, investigations and recommendations, the teachers at Excelsior, including the ARCO-trained Mr Ryan and Mrs Ives, failed to recognise as racist, and/or to discourage as racist, the remarks made by the children at school on 11 March 1999 and in the library incident, and made by a child or children saying 'ching chong chinaman'. Further, the Tribunal is satisfied that Excelsior did not comply with its anti-racism policy in respect of the said remarks and subsequently, did not implement the Department's recommendations. Further, the Department failed to ensure that the ARCOs Mr Ryan and Mrs Ives were fulfilling their role and to monitor that its recommendations were acted upon. 99 After careful consideration of all the evidence, the Tribunal is not satisfied that these failures amount to unlawful discrimination by the Respondent against the ZG children within Section 7 of the ADA. However, the Tribunal is satisfied that by these failures, the Respondent unlawfully discriminated against ZG's sons on the ground of race by failing to provide ZG's sons with the benefit of a safe learning environment and/or by subjecting them to the detriment of a learning environment where racism was tolerated. After considering all the evidence, the Tribunal finds that the Respondent unlawfully discriminated against the ZG children on the ground of race within Section 17 of the ADA. DAMAGES AND OTHER ORDERS SOUGHT 100 ZG claimed damages for financial compensation for loss and damage suffered by reason of the unlawful discrimination including: Financial loss totalling $2173.60 associated with the costs of transferring A , C and B from Excelsior Public School to Jasper Road Public School; deterioration in his and his wife's health after the 'stabbing' on 11 March 1999; A's continuing distress after the incident on 11 March 1999; B's claimed dizzy spells and seeing 'stars' after Mrs Y 'hit' him on the head with books; and C's nose bleeds after he was pushed and punched by N at school. ZG sought the following additional orders: A declaration the respondent had unlawfully discriminated against the Applicant; a formal written apology; an order directing the Respondent 'to conduct racism awareness courses for students and staff at the School'; an order directing the Respondent to publish in the School's newsletter an article advising parents and students of the School's anti-racism policies and the appropriate complaint handling procedures under those policies'; and such other orders as the Tribunal sees fit. Damages for financial loss, and physical and psychological damage 101 The ADA Section 108 provides that the Tribunal may order the Respondent to pay damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the Respondent's conduct. The Tribunal notes Phillis v Mandic [2005] FMCA 330; in that case, Raphael FM, stated at para 26, 'The award of general damages in discrimination matters is not intended to be punitive but rather to place complainants in the situation that they would otherwise have been in had the harassment not occurred: Howe v Qantas [2004] FMCA 242; Hall v Sheiban (supra). To do so clearly requires specific reference to a person's individual circumstances.' 102 The Tribunal notes that ZG provided no medical evidence as to his and his wife's claimed medical conditions or as to C's nose bleeds. Also, Dr Bloomfield's certificate as to B's dizziness does not support a finding that this was in any way caused by hits to the head in 1998. Further, as to C's nosebleeds and B's dizziness and seeing 'stars' and the like, the Tribunal does not accept that these conditions, if they exist, were caused by unlawful discrimination. As to the matter of A suffering post traumatic stress syndrome and other psychiatric disorders, after considering all the evidence, the Tribunal prefers the report of psychiatrist Dr Champion to that of psychologist Susan Hayes, though it accepts that A was distressed by the incidents of 11 March 1999 and the subsequent handling by the school of that, and the library incident. As to the cost of moving schools, ZG did not provide evidence such as accounts for the actual costs associated with the costs of transferring A , B and C from Excelsior, and at the hearing he indicated that the family were considering moving house anyway when their lease expired at the end of 1999. Nevertheless, the Tribunal accepts that the change of school necessarily involves costs associated with new uniforms and the like. Further, though the Tribunal finds that if the ZG children experienced any unlawful discrimination before 11 March 1999, this is not of a dimension to warrant compensation, the Tribunal accepts that after 11 March 1999, a measure of hurt was suffered by A, and to a lesser extent B and C, in their experiences at Excelsior. After considering all the evidence, the Tribunal assesses the damages to be $6000 being compensation for economic loss associated with the move of schools from Excelsior, and compensation for hurt and humiliation incurred by reason of the Respondent's unlawful discrimination. Other Orders sought 103 The Tribunal may make orders under Section 108 ADA not only for the respondent to pay damages, but also ordering the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant and/or to publish an apology. As well, an order of the Tribunal may extend to conduct of the respondent that affects persons other than the complainant(s) if the Tribunal, having regard to the circumstances of the case, considers that such an extension is appropriate. 104 In this case, the Tribunal has found that in the relevant period, Excelsior did not adequately enforce its anti-racism policy, its ARCOs were not adequately trained, the school community (staff, students and parents) was not adequately made aware of the anti-racism policy, the recommendations of the Department subsequent to its investigations of the 11 March 1999 matter were not carried out despite the elapse of over seven years at the time of the hearing, and the Department did not monitor Excelsior to ensure that its recommendations were carried out. 105 After considering the matter, the Tribunal considers that it is appropriate for Excelsior to apologise for any distress to A, B and C caused by its management of the racist remarks by students brought to Excelsior's attention by ZG in the period from November 1998 to end 1999. Further, while the Tribunal considers that it is not appropriate for it to make orders as to the Respondent's internal management of racism matters, the Tribunal recommends that as a matter of urgency, the Respondent provide regular training of its ARCOs in all schools, including Excelsior, and take reasonable steps to ensure that in all its schools, teachers are given regular training in anti-racism matters, anti-racism policies are adequate, anti-discrimination policies are appropriately enforced, and staff, students and parents are aware of the Department's anti-racism policies. ORDERS 106 The Tribunal makes the following Orders: 1. The Director General, NSW Department of Education and Training pay within 28 days of the date of these Orders the Applicant the sum of six thousand dollars ($6000.00) for economic loss and for hurt and humiliation. 2. Excelsior apologise to the Applicant within 28 days of the date of these Orders for any distress to A, B and C caused by its management of the racist remarks by students brought to Excelsior's attention by ZG in the period from November 1998 to end 1999. 3. All the students mentioned in this decision are to be anonymous, including the Applicant's children
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.
ZG
Director General, NSW Department of Education and Training
The Tribunal ordered the respondent to pay the applicant $6000 within 28 days for economic loss and hurt and humiliation, ordered Excelsior to apologise within 28 days for distress caused by its management of the racist remarks, and ordered anonymity for all students mentioned.