A obo v and A v Department of School Education

[1999] NSWADT 120

CITATION:	A obo V and A -v- Department of School Education [1999] NSWADT 120
DIVISION:	Equal Opportunity
APPLICANT:	A on behalf of V and A
RESPONDENT:	Department of School Education
FILE NUMBER:	109 of 1998
HEARING DATES:	10/18/1999; 10/19/1999; 10/20/1999
SUBMISSIONS CLOSED:	10/20/1999
DATE OF DECISION:	12 November 1999
BEFORE:	R Bartley - Judicial Member K Edwards - Member M Luger - Member
PRIMARY LEGISLATION:	Anti-Discrimination Act 1977
APPLICATION:	Race Discrimination - Education -
MATTER FOR DECISION:	Principal Matter
REPRESENTATION:	Applicant: R Killalea of counsel Respondent: M Lynch of counsel instructed by Crown Solicitor's Office
ORDERS:	1. All of the complaints laid by the Complainant are dismissed. 2. No order as to costs

The complaints

1 On 27 October 1997 Mr A, on behalf of his children A and V (hereinafter called the ('Complainant'), who are Jewish and attend Ermington Public School, complained that the NSW Department of School Education (hereinafter called the 'Respondent') had discriminated against the children on the ground of race. This was because the school conducted various activities at the end of the year, which focused on Christmas.

2 On 2 April 1998, the Complainant made a further complaint of discrimination on the basis of race. The Respondent had discriminated against his children because the school conducted various activities during March and April 1998, which celebrated Easter.

3 On 14 April the Complainant made a further complaint of discrimination on the basis of race on behalf of his daughter V which occurred on a Friday just prior to the Easter long weekend at the school assembly. Mr A said that when the prayer was said at assembly, V generally stood with her hands at her side, whilst the children prayed with their hands together at the front of the chest. He says that V told him that on this occasion V’s teacher, Ms Napthali, walked towards V and asked, “Why aren’t you praying?” Mr A alleged that V told him that she was so alarmed and scared that she immediately began to pray like the other children.

Evidence

4 A, one of the Complainant’s children attended school at Ermington from year K in 1992 to year 6 in 1998. Schooling at the Ermington School does not continue past year 6. A now attends at a High School (ie a school other than Ermington School). His other child V now attends Ermington School. V has attended the Ermington School since 1996 . The gravamen of the Complainant’s cases was conversations he had with his children concerning what had happened at school. His case was further supplemented with the Complainant’s own observations of happenings at the school.

5 The Complainant gave evidence by affidavit and orally. Evidence of the Complainant’s conversations with his children was objected to on the basis it was hearsay evidence. The Respondent submitted that as no dates or times were to be mentioned or teachers named (except in one instance) the Respondent had no chance of replying to such evidence.

6 The Respondent also submitted, if the children were not called, there could be no testing of their evidence. Notwithstanding the submissions the evidence was allowed, otherwise the Complainant would not have had a chance to present his case. In addition, the Evidence Act 1995 does not apply to these proceedings. The Tribunal said it would determine the weight of the evidence in due course.

7 Mr A in evidence said in l998, A told him “ We have to say the Creed and the Prayer at Assembly every Tuesday.” V told him “We have to pray at school every Friday and she further told him " They tell you to put your hands together, bow your head and close you eyes, and then we have to say the words - they told us the words lots of times when we were in Kindy for us to get it right”.

8 Further he was told by A “one of the teachers picks two kids and tells them to come to the front and read the Assembly paper, they choose different children every time”. He said V and A told him they recited the School Creed and the School prayer in every weekly Assembly (up to about mid 1998). He said “A told him that ‘I felt I had to do it- to pray, or I could be in trouble”. He said V told him “We have to say all the words they tell you, if I did not pray they would say come and sit next to me and say the words with everyone”. There were other conversations with his children that he told the Tribunal.

9 He said he told his children around mid 1998 they did not have to recite the school Creed or Prayer and told them they could stand silently.

10 He gave evidence from the time he told his children they did not have to recite the school Creed or Prayer, around mid 1998, A told him "If the teacher is looking I just pretend I am praying but I make up any words that come to my mind". He further said V told him that "sometimes I put my hands together and cross my fingers, bowed my head, close my eyes and I just go 'bla-bla-bla' - I pretend I am saying the prayer. He also said V also told him "Even if the teachers are not looking I just go 'bla-bla-bla" because they might tell me to sit next to them to say the words".

11 He said at Christmas time each year A and V each year had to practice activities such as Christmas songs and preparing cards, dancing to Christmas tunes, including songs and carols, the re-enactment of the birth of Jesus and recital of stories about Jesus being stories as told to the students by their teachers.

12 In 1998 the name of the Christmas concerts was changed to “end of the Year Concerts”.

13 He gave evidence that in the last term of each year, from at least 1992, the School involved students in the preparation of Christmas activities including

(i) practising Christmas songs and carols

(ii) practicing dancing to Christmas tunes, including songs and

carols

(iii) practising the re-enactment of the birth of Jesus and

(iv) practising recital of stories about Jesus being stories as told to the students by their teachers

14 The Complainant further gave evidence that in the last term each year, from at least 1991, the School involved the students in annual Christmas Parties which included

(i) singing Christmas Carols

(ii) painting Christmas cards and Santa's and

(iii) meeting Santa and receiving lollies from Santa

15 The Complainant gave evidence that when V was in Year 2 in 1998, he only allowed her to participate in the first part of the program of the ' End of Year Party' where as far as he understood, games were played and a clown was present. However at around lunch time, he removed V from School because he did not want her to participate in the second part of the program where, as far as he understood, children were required to sing Christmas carols and receive lollies from Santa.

16 Around April of each year, from at least 1992, the School involved the students in the preparation of Easter activities which included the students' making hats and then parading with those hats in 'Easter Hats' parades; in making Easter eggs and Easter bunnies and the students receiving chocolate Easter eggs from their teachers.

17 He said his children partook in preparation of all of the Easter activities when the children were in Years K, 1 & 2. He and his wife participated in making hats.

18 He said A said “We never celebrated Hanukkah” and V said, “We did not do any Hanukkah stuff in Kindy or in Year 1 or Year 2”.

19 In evidence in chief (orally) the Complainant said he wrote a letter in October 1998 to the Principal Mr Weiss saying he did not want V to participate in the preparations of Christmas and asked what dates and times there was going to be practice. Mr Weiss advised him of the dates and times but he did not remove V as it was not practical for him to go to the school to pick her up on the dates and times mentioned. He gave evidence he did not allow V to participate in the concerts and she did not attend school on those days, which were dedicated to the Christmas concert.

20 In cross-examination the Complainant said he did not object to the word 'Christmas', and that it was only in particular contexts that he objected to the use of the word. He said he did not object to the use of the term 'Christmas Day' in the course of general education at the school. He objected to the visual image of Santa Claus as an educational tool, and he objected to a person portraying Santa Claus at the end of the year parties and distributing lollies.

21 When asked "What is it about Santa you object to?" the Complainant said, "It is my understanding of what is Santa Claus, it is a Christian figure. We, as Jewish do not acknowledge Santa Claus. I do not want my children to acknowledge Santa Claus. I do not take my children to meet Santa Claus or to be taken photos with Santa Claus. They do not receive gifts from Santa Claus".

22 He was further asked "You say that if there is a religious class, a special religious class in any one of the Christian religions then it is okay for Santa Claus to be part of that class, Is that the distinction you seek to draw? " He replied "Yes, that is right". He was further asked "Otherwise you seek to prohibit the school from making Santa Claus any part of the education of the children in the primary school, Is that right?" He replied "Yes, that is right".

23 He agreed that in respect of the prayer formerly used at the school, there was nothing to suggest it was Christian, but he wanted it prohibited from use in the school.

24 The Complainant agreed with Mr Lynch there was nothing in the Creed or Prayer used in the school that indicated Christian but in 1997 and throughout 1998, he sought to persuade the school they should cease using the Creed and Prayer and that partly as a result of his protests, their use was discontinued in 1998.

25 He agreed that he did not raise objection to his son's participation in the Christmas nativity scene until 1996 and further agreed that he only informed his children in 1998 for the first time they were not obliged to participate in any of the Christmas activities. He said his objection was to the blanket participation of any children at the school in 'Christian' activities and that more generally, it was an objection, the activities should not take place.

26 In further cross-examination, he agreed he knew he could have taken his children out of the activities in 1997 but did not.

27 In respect to Easter eggs he was asked:

Q: The only basis you have for asserting that they are exchanging Easter eggs, as a Christian activity is that they are called Easter Eggs?

A: Yes, they include the words Easter.

28 Mr Lynch asked in cross-examination:

Q: You accept, do you not, that the school under the law is permitted to teach general religious education to all of the children at the school, not in special religious education classes but generally?

A: Yes I accept that.

Q: And your complaint in substance is that the particular things which you take offence, in your view, do not fall within general religious education, is that a fair description of your complaint in summary?

A: Yes they are not general religious education.


He added that he had no objection to s 30 of the Education Act; it is the implementation that is the basis of his complaint."

29 In a statement tendered in evidence, Senior Rabbi Apple of the Great Synagogue, Sydney, said that Judaism does not accept that Jesus is divine, messiah, intermediary between man and God or essential in the forgiveness of sins. He plays no part in Judaism. He further said the New Testament stories relating to his birth, life, death and resurrection are not part of or commemorated by Judaism. He said further that neither Christmas, the festival of the nativity of Jesus, nor Easter the commemoration of his resurrection are part of or observed by Judaism.

30 The Reverend Anthony Doherty, the Dean of St Mary's Cathedral, was called by the Complainant and gave evidence that Easter is the central celebration of the Christian liturgical calendar. Furthermore, that Christmas takes on significance in relation to Easter. It is a celebration of a child in Bethlehem named Jesus, who was understood to possess divine divinity in the sense that Christians believe him to be the Son of God. He said that both events in the year are seen as two fundamental Christian beliefs and reflect central doctrines of the church. He said the stories of Christmas and Easter are to be found in the New Testament.

31 In respect of Santa Claus, Reverend Doherty said Santa Claus is a "delightful story" that has rather misty sort of backgrounds. It has nothing to do with the Christian celebration. He agreed that when people speak of Easter, the reference may well be to a temporal period rather than a religious celebration.

Evidence for the Defence

32 Colin Weiss, the Principal of the Ermington Public School since 1989, gave evidence orally and by affidavit. He gave details of the school population. He said that over the years, within realistic and resource limitations, he had endeavoured to ensure that students at the school were provided with as broad ranging an education as possible. He said the school adheres to the Department of Education's anti-discrimination policies and guidelines, of which the staff is regularly reminded. The school had two departmentally trained Anti-Discrimination Convenors.

33 He said the school does not itself provide a programme of general religious education. In his view the concept itself lends itself to some degree of flexibility in the provision of broad based programmes and activities which, although not specifically directed at all in form or content towards religious teaching, may have a religious flavour depending upon the differing background and perspective of individual students and parents

34 He said it was not school policy, not has it ever been during his term as Principal, to require students to participate in any programme or activity in respect of which there is legitimate concern expressed by students or their parents about it being contrary to their religious beliefs, notwithstanding that he or the relevant teacher might not consider the programme to have a religious flavour.

35 He said partly because of Mr A's concerns and consistent with the approach outlined above, he had arranged for programmes and activities within the school to be modified. The end of the year "Christmas Concert" and "Christmas Party" were renamed "End of the Year…."functions in 1998 following Mr A's suggestion, and in respect of the former, they are now looking at a broader based content.

36 The School Prayer and Creed were also removed from the Assembly programme for years 3-6. Kindergarten and years 1 and 2 have never recited the Creed and do not now recite a School Prayer at Assembly.

37 He said the End-of-Year Concert is performed once on three consecutive days by years K-2 for the benefit of parents. Unless a teacher knows that a particular student is not to be included, all students in Years 3-6 attend a rehearsal of the Concert as an audience. He agreed in cross-examination that everything that happened in the school was his responsibility, including the End of Year party, end of year Concert, the Easter Hat parade, and the fact that up until 1998 the Prayer and Creed were part of the school Assembly.

38 Suzann Gaie Napthali said she had been a teacher at Ermington School since 1996 and she was, inter alia, a Departmentally trained Anti-Racism Convenor (since 1994). She gave evidence orally and by affidavit. She detailed in evidence how she had met the wishes of a Plymouth Brethren family, a Seventh Day Adventist family and a Muslim family in respect of their religious requirements.

39 She said that in her experience V had not used the term "bla-bla-bla", she had never seen V feign participation in the School Prayer and had told V at the beginning of Term 4 in October 1998 "V you need not sing the Christmas songs or anything else you are not comfortable with".

40 She said she had not separated V from her classmates, nor had she asked V to sit separately and tell her to keep quiet while the songs were practised. V was not required to sing "The 12 Days of Christmas".

41 She said parents are kept informed of happenings at the school by the orientation meeting, the parent and teacher night, and weekly newsletter. She said that when any child indicated a particular task was difficult an alternative activity was arranged.

Conclusion

42 There were three complaints lodged with the Anti-Discrimination Board . Mr A lodged the third complaint on 14 April 1998 on behalf of his daughter V and at the same time lodged the same complaint as a complaint of racial vilification in respect of himself personally.

43 The part concerning Mr A was declined by the Board as not disclosing a contravention of the Anti-Discrimination Act, 1977.

44 No evidence was lead to support this complaint (if it was one) and Mr Lynch for the Respondent submitted that Mr A had no basis to bring the complaint against the Respondent in his own right as distinct from bringing it on behalf of his daughter V. When this matter was raised, Mr Killalea for the Complainant said he did not press the point.

45 The only matter concerning this complaint was that contained in the complaint and the letter of Mr A to the Anti-Discrimination Board. Ms Napthali, Assistant Principal at the Ermington School in cross-examination was asked the following question.

Q: I suggest in April 1998 or around April 1998 you went to V at the Assembly and you said to her "Why aren't you praying?"

Ms Naphtali replied: No I did not say that.

There was no other evidence on the matter.

46 In the Tribunal's view, Ms Napthali's evidence should be accepted. There is no factual basis for the complaint and it will be dismissed, both in respect of his daughter and himself.

47 That then leaves the two remaining complaints:

(i) This complaint was lodged on 27October 1997 by Mr A on behalf of his two children, who attended Ermington Public School that the NSW Department of School Education had discriminated against his two children, who were Jewish, on the grounds of race, because the school conducted various activities at the end of the year which focused on Christmas

(ii) The second complaint was lodged on 2 April 1998 by Mr A, on behalf of his two children who attended Ermington Public School that the NSW Department of School Education had discriminated against his two children, because the school conducted various activities in March and April l998 which celebrated Easter.

48 The complaint was brought under sections 7 and l7 of the Anti-Discrimination Act 1977 and in the context of this case the Complainant must prove sections 7(1) and (2):

(i) The New South Wales Department of School Education

(ii) Discriminated against

(iii) Mr A's children

(iv) On the basis of race

(v) And treated Mr A's children less favourably than in the same circumstances, or in circumstances which are not materially different

(vi) The Department treats or would treat a person of a different race, or

(vii) Segregated the two children from persons of a different race.

49 For the purposes of subsections 1(a) and (b) something is done on the grounds 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 (s 7(2)).

Section 17(2) provides:

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,

(b) by expelling the student or subjecting the student to any other detriment.

Issues

50 The various issues that have been raised are:

(1) whether the Complainants case is based on grounds of race or based on religious grounds

(2) whether Santa Claus is part of the Christian teaching

(3) whether the activities of the school at Christmas and Easter amount to" general religious education" or "special religious education"

(4) what is the" detriment "it is said the children suffered?

51 Counsel for the Respondent has raised the matter of whether or not the Complainant's case is one of discrimination based on religious grounds or based on race. The Complainant says his case is based on racial discrimination and the Respondent says it is not based on racial discrimination but is based on religious grounds.

52 The term "Race" is defined in the Anti-Discrimination Act 1977 by section 4(1).

Race includes colour, nationality, descent and, ethnic, ethno-religious or national origin

53 Mr Lynch for the Respondent has submitted that the Complainant is complaining that his children are being treated less favourably not on the ground of race at all but really on the ground of religion. Mr Lynch submitted that religious discrimination in New South Wales is not prohibited by the Anti-Discrimination Act. The true basis of the complaint is, as a member of the Jewish race the Complainant is being treated less favourably than people of the Caucasian or Lebanese race. The Complainant is being treated less favourably, or his children are, because he says they are being forced to be subject to Christian activities in the school to which all of the children in the school are exposed, not children of any particular race, but children of all kinds and the objection is really a religious objection.

54 Mr Killalea, in his submission, contends the issue is not religious discrimination, it is talking about race discrimination. The race is the Jewish race. He submits race discrimination is constituted or may be constituted, as in this case. It is race discrimination when the action complained of offends the religious aspect of race.

The Race Issue

55 Listening to the submissions of Mr Lynch and Mr Killalea, it would seem there are two completely different interpretations of the term "race" in section 4(1) available. On the face of things it appears to the Tribunal that the term" ethno-religious origin" is in the definition of race to enable persons who so qualify to be a race for the purposes of the Act. It does nothing more. It must be read in the context in which it appears.

56 In the circumstances it is now permissible to look at the relevant Hansard (Second-reading Speech) of the Bill to amend the Anti-Discrimination Act in respect of the definition of Race, to gauge the purpose of the legislation.

57 The definition was substituted by the 1974 amendment Act. In introducing the Bill(which became the Act) The Hon J P Hannaford (Attorney General, Minister for Justice and Vice President of the Executive Council) said (Hansard P 1827):

Schedule 1 to the bill contains amendments relating to the definition of race contained in the Anti-Discrimination Act. Section 4 of the Anti-Discrimination Act will be amended so that the existing definition of race will include concepts of descent and ethno-religious origin.

The first amendment will confirm that persons who experience discrimination on the basis of descent may utilise the racial discrimination and racial vilification provisions of the Act. The amendment would operate, for example, to provide a remedy where a Malaysian person of Chinese descent is discriminated against based on his or her Chinese descent only.

The effect of the latter amendment is to clarify that ethno-religious group, such as Jews Muslims and Sikhs have access to the racial vilification and discrimination provisions of the Act. At present, it is not clear whether the racial vilification and discrimination provisions cover such groups, although this would appear to be the position at common law.

The amendment will make it clear that vilification or discrimination against a person based on ethno-religious origin falls within the protections against racial discrimination and racial vilification currently contained in the Act. The amendment is in line with existing judicial authority from both New South Wales and overseas which indicates that ethno-religious background is included in the legal concept of race.

I should make it clear to honourable members that this amendment is not in any way to interfere with religious freedoms, and that the extension of the anti-Discrimination Act to ethno-religious groups will not extend to discrimination on the ground of religion.

At present, section 56 of the Act specifically exempts religious practices, in accordance with the Government's policy that anti-discrimination laws should not interfere with fundamental freedoms

The proposed amendment to the definition of race will not allow members of ethno-religious groups such as Jews, Muslims and Sikhs to lodge complaints in respect of discrimination on the basis of their religion, but will protect such groups from discrimination based on their membership of a group which shares a historical identity in terms of their racial national or ethnic origin.

Accordingly, the amendment will not prevent religious schools, for example, from employing suitable staff on the basis of their membership of a particular religion.

58 The Tribunal finds the purpose of the amending legislation is made clear from the reading of Hansard. The section has not been amended to enable persons like the Complainant to take action for alleged religious discrimination that is forbidden by the Act.

59 Simply because the Complainant is a member of a "race" due to ethno-religious origin does not enable the Complainant to take proceedings under the Act on the grounds of religious discrimination, because it is an element of the definition of Race, which he has attempted to do in this case.

60 The purpose of the definition of Race is clearly to qualify certain ethno-religious groups as a race, and nothing more. The Tribunal accepts Mr Lynch's submission that the informations are based on religious discrimination and not racial discrimination. Mr Lynch's submission is upheld.

Religious Education Issue

61 Mr Killalea for the Complainant said the complaint was that both the Complainant and his children were discriminated against in the relevant sense of the Anti-Discrimination Act 1977 in that his children, in attending the State school, participate in activities which are organised by the school and such activities take place during normal school hours and those activities, the particular activities complained of, are activities having the form and style and substance of Christmas activities and Easter activities, and thirdly prayer activities at school Assembly.

62 Those three activities Mr Killalea submits constitute Special Religious Education but they occur in a public environment, that is, public within the school. He said the Education Act by section 32 requires that provision be made for special religious education but that education is provided in a discrete way so that if you are Jewish, for example and you partake in Jewish scripture then you partake in that in private with other Jewish students.

63 He submits it is not general religious instruction when what one is being asked to partake in any activities orientated and focused on Christian activities. He further submitted that the Complainant was not here to challenge, in a sense the evidence put on by the Department of Education. There is a factual background to this, a factual matrix, which, as have seen the evidence was not significantly challenged and will not really form the determination of this Tribunal (sic).

64 The facts Mr Killalea submits are in essence, and in their important aspects, are subsidiary to the legal question, which has to be determined here. The critical question is given the activities that take place in the school, do they constitute special religious education under section 32?

65 Mr Killalea submitted they were as they took place in the school, in public, and such constituted Special Religious Education under section 32.

66 Section 30 of the Education Act 1991 (headed) Secular instruction) states" In government schools, the education is to consist of strictly non-sectarian and secular instruction." The words “secular instruction” are to be taken to include general religious education as distinct from dogmatic or polemical theology.

67 Section 32 (headed) Special Religious Education provides that:

• times must be provided for it (ss (1))
• to be given by a member of the clergy or other religious teacher (ss (2))
• the education has to be authorised by the religious body to which the member belongs(ss(3)) and given at times fixed by agreement
• children to be separated from other children at the school while the class is held (ss(4))
• if religious teacher fails to attend children are to be appropriately cared for (ss(4))

68 Section 33 (headed) Objection to Religious Education states:

“No child at a government school is to be required to receive any General Religious Education or Special Religious Education if the parent of the child objects to the child’s receiving that education"

69 General Religious Education (taken from Benjamin v Downs [1976] 1 NSWLR 199) is general teaching of the Christian religion( P 207A), teaching of Christianity in a general way (P 287D). General Religious teaching enables the teaching of the Christian religion in a general way, and would permit the giving of instruction in accordance with the General Religious and moral Education Curriculum and the use of Scripture Stories for Junior and Senior classes as a means of imparting that instruction (P 209D).

70 A dogmatic theology ought to be accepted as meaning the doctrine authoritatively laid down by as particular Christian church or the doctrinal system of a particular church (Benjamin v Downs) referred to earlier at P 209C.

71 Applying the relevant section of the Education Act and the principles set out in Benjamin v Downs, the Tribunal is of the view that the activities organised by the school at Christmas, Easter and prayers at the Assembly fall within the description of General Religious Education. There was no dogmatic teaching (as described by the Reverend Anthony Doherty) nor was it in some 'half way house' as was submitted by Mr Killalea.

72 The Education Act provides for parents to object to their child receiving any General Religious Education or Special Religious Education. For some years the Complainant did not object as provided by the Act. When he did, alternative instruction (non-religious) was provided for V. In the Tribunal's view this did not fall within the meaning of segregation as used in the Anti-Discrimination Act.

73 Considerable time was spent by Counsel for the Respondent examining the Complainant as to his views on Santa Claus and the role Santa Claus plays in the community. Mr A told Counsel that he objected to the visual image of Santa Claus as an educational tool and he objected to a person portraying Santa Claus at the end of the year parties and distributing lollies.

74 Mr A said it was his understanding of what Santa Claus is, that it was a Christian figure. He said "We, as Jewish, do not acknowledge Santa Claus. I do not take my children to acknowledge Santa Claus. I do not take my children to met Santa Claus or to be taken photos with Santa Claus. They do not receive gifts from Santa Claus".

75 He was asked:

Q: You say that if there is a religious class, a special religious class in any one of the Christian religions then it is okay for Santa Claus to be part of that class, is that the distinction you draw?

He replied: Yes, that is right.

Q: Otherwise you seek to prohibit the school from making Santa Claus any part of the education of children in the primary school? Is that right?

and he replied: "Yes, that is right".

76 Senior Rabbi Apple did not comment on the role of Santa Claus. However the Revered Anthony Doherty, Dean of St Marys Cathedral said Santa Claus was 'a delightful story' that had rather mystic sort of backgrounds. It had nothing to do with Christian Celebration.

77 In his submissions on behalf of the Respondent, Mr Lynch submitted "The way the Complainant puts it is that any reference to Santa Claus is a Christian reference. That is an untenable contradiction. It is contradicted by the Reverend Doherty and contrary to common sense … Santa Claus is a mythical character who has no religious significance on the material before you … the evidence overwhelming points to Santa Claus not being a symbol of Christianity, indeed, not being a symbol of any religion but rather a rosy fellow who is chubby and hands out presents to kiddies during the cultural festival of Christmas".

78 Mr Killalea submitted that there is no impediment to children of the Christian belief or children who otherwise enjoy Santa. There is no impediment to their partaking in celebrations within the Special Religious Education context.

79 Mr Killalea further submitted that what Mr A asks, and asks no more, is that there be a party at the end of the year for all of the school children in which they are able to participate, because they are offended in a racial sense. What he has said in relation to Santa is that for those who ascribe to Santa, let them have their day in their Special Religious Education class. The law provides for that. It has that religious aspect. It can be accommodated.

80 Having regard to the submissions and the evidence generally, and in particular the evidence of the Reverend Doherty, we are satisfied that Santa Claus is not basically a symbol of Christianity.

81 The school's use of Santa Claus clearly created a lot of enjoyment (as illustrated by the video) and there is no basis for the objections raised by the Complainant. Criticism of the school's use of Santa Claus is without foundation.

82 On the evidence the Tribunal finds that Santa Claus is not basically a religious symbol. However as is pointed out in the submissions if the Complainant disagrees he can readily object to his child's attending the End of Year party. Such objection can be based on both religious and non-religious grounds as provided for in the Act.

Detriment and other matters

83 Mr Lynch submitted the Respondent says that in so far as the definitions of race discrimination relied upon under s 7 of the Anti Discrimination Act 1977, there is really no possibility of discrimination on grounds of race being demonstrated against the Respondent under section 7(1)(a) and (b). Firstly, because the Complainant was relying upon discrimination against a person on the ground of race and what is asserted here is that the Complainant is being treated differently to persons of not a different race to the Jewish race but a different religion. That falls outside the terms of definition in terms of sections 7(1)(a) and (b).

84 The Respondent further asserted that under the terms of s 17 of the Anti-Discrimination Act, there is no detriment suffered by the Complainant and that the other ingredient in s 17 is simply not established which is relied upon by the Complainant. In the terms of s 17(2) there has been no denial to any benefit provided by the school. There has been no denial of any access of the Complainant to any benefit provided by the school, and, of course, no expulsion.

85 Finally, the Respondent submits, in the event the Tribunal finds otherwise, there is a provisions s 54 which may come into play, if, and only if, the Complainant satisfies the Tribunal that there has been relevant breach of s 7 and s 127 of the Act.

86 Mr Lynch relied on his earlier submissions and drew the Tribunal's attention to s 26 of the Education Act, which provided for exemptions in certain matters. He said it was open to the Complainant to object to any of the activities at the school and request a certificate of exemption, even though they were not of a religious kind. He also referred to section 6(1)(b) of the Education Act.

87 Mr Lynch further drew attention to s 127, which provides that nothing in Part 2 gives rise to or can be taken into account in any civil cause of action. He submitted within the terms of s 7(1)(c), where there is required to be proved by a Complainant that the comparison is between people of one race, the Jewish race, and other people. It is a much broader head of power but what is necessary in order to fit within s 7(1)(c) is evidence demonstrating that members of the Jewish race were required to do things which non-Jews were not so required.

88 Mr Lynch concluded his submissions by saying there is simply an absence of evidence to support that on a factual basis. He submitted if we were against him on his earlier submissions then we should apply s 54 of the anti-Discrimination Act 1977.

89 Mr Killalea referred to Teoh v Minister for Immigration and Ethnic Affairs (1995) 183 CLR 273. He argued the case applied to decisions under the Education Act (NSW). He submitted that Mr. Lynch had said they were arguing on religious discrimination but emphasised they were arguing race discrimination.

90 Mr Killalea submitted further that the catalyst for racial discrimination was the religious activity in which Mr A's children were to require to participate. Mr Killalea submitted that they were required to participate in that activity simply by attending school.

91 He submitted that his submission does not depend on what happens at Christmas and Easter and the references to Christmas and Easter do amount to religious dogma. He submitted it is sufficient to say that it created a challenge in a religious aspect of V and A's Jewishness, and therein lies the discrimination.

92 He submitted in terms of s 7(1)(a) there is discrimination as there are any number of races present in the school

93 Mr Weiss, the Principal of the Ermington Public School, said that roughly twenty-seven per cent of students at the school came from non-English speaking backgrounds, encompassing some twenty-two different languages. Further that three hundred children out of a total student body of three hundred and fifty attended various special education scripture classes.

94 He said Special Religious Education, in the form of weekly scripture classes of one-half hour duration, were currently provided for students of the Anglican, Roman Catholic Jewish and Uniting Church Religions.

95 It is clear that Mr Weiss and his Assistant Principal, Suzann Gaie Hapthali, have made considerable efforts to carry out the terms of the Education Act, Anti-Discrimination Act and School and Departmental policy. There was no breach of the Anti-Discrimination Act on the evidence before us and no child suffered any detriment. It cannot be said that a detriment is suffered simply because diverse groups should find ways of co-existing with each other.

96 The Tribunal finds that on the evidence, there was no discrimination based on race in respect of either of the Complainant's children; that the children were not denied access, nor was access limited to any benefit provided by the School, nor were they subject to any other detriment.

Orders

97 The Tribunal makes the following orders:

1.All of the complaints laid by the Complainant are DISMISSED.

2. NO ORDER AS TO COSTS.