A obo v and A v NSW Department of School Education (EOD)

[2000] NSWADTAP 14

Appeal Panel

CITATION:	A obo V and A -v- NSW Department of School Education (EOD) [2000] NSWADTAP 14
PARTIES:	APPLICANT A obo V and A RESPONDENT NSW Department of School Education
FILE NUMBER:	999029
HEARING DATES:	21/07/2000
SUBMISSIONS CLOSED:	07/21/2000
DATE OF DECISION:	09/01/2000
DECISION UNDER APPEAL:	Principal matter
BEFORE:	Latham M - DCJ (Deputy President); King P - Judicial Member; Lau L - Member
CATCHWORDS:	statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	109 of 1998
DATE OF DECISION UNDER APPEAL:	11/12/1999
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Pambula District Hospital v Herriman (1988) 14 NSWLR 387 Mandla v Dowell Lee [1983] 2 AC 548 Waters & Ors v Public Transport Corporation (1991-1992) 173 CLR 349
REPRESENTATION:	R Killalea, barrister M Lynch, barrister
ORDERS:	1. The appeal is dismissed; 2. There is no order as to costs.

1 The appellant A is the father of the two infant children, V and A, on whose behalf he brought three complaints of racial discrimination against the Dept of School Education arising out of three activities conducted by a Public School in 1997 and 1998 when the children were students there. The complaints were brought under ss 7 and 17 of the Anti-Discrimination Act 1977(the AD Act).

2 The first activity concerned the school’s practice of conducting school prayers at school assembly; the second activity focused on Christmas, and in particular, the children’s participation in the Christmas nativity scene, prior to 1998 at the school Christmas concerts and Christmas party, and the attendance of Santa Claus at one or both of those functions. However in 1998 the appellant objected to his children participating in the Christmas activities, and as a consequence, they were excused from further involvement. The third activity relates to the Easter program of the school in April of 1998, in particular concerning the exchange of Easter eggs, and other events associated with the Easter story of the Christian faith.

3 The appellant and his children are members of the Jewish faith. Rabbi Apple, the senior Rabbi of the Great Synagogue of Sydney, gave evidence before the Tribunal that Judaism does not accept the tenets of Christianity, including the celebration of the divinity of Jesus at Christmas and Easter, which events as a matter of religious dogma form no part of the observance by Jews of their faith.

4 In its reasons for decision dated 12 November 1999 the Tribunal dismissed the complaint relating to the first activity. It was based upon an alleged interrogation of the appellant's daughter at a school assembly by one of the teachers when it was observed that the child was not bowed in prayer. The Tribunal found that there was no factual basis to the complaint in so far as the evidence did not establish that such an event had occurred (paras 45, 46). The appellant does not contest that aspect of the hearing in this appeal. That left the complaints based upon the Christmas activity and the Easter activity at the school. The Tribunal also dismissed those complaints after finding that the evidence failed to establish any discrimination on the ground of race, and failed to establish that the children were in any way denied access or limited in their access to any benefit provided by the school (para 96).

5 Before turning to the grounds of appeal, it is necessary to refer to the evidence before the Tribunal on the nature of the treatment alleged by the appellant to have subjected the children to a detriment. A summary of that evidence appears at paras 11 - 27 of the decision. It was lead from the appellant in the absence of the children themselves giving evidence and accordingly was affected by the limitations inherent in hearsay evidence. It amounted to a description of the activities at the school at Christmas such as the practicing of Christmas songs, preparation of cards, dancing to Christmas songs and carols, staging a re-enactment of the birth of Jesus, the telling of stories about Jesus and visits by Santa. Similarly, the evidence of the Easter activities at the school included making Easter hats and having a parade, making Easter eggs and Easter bunnies and the giving of Easter eggs. The objection was to the children’s participation in any “Christian” activities, being those described above. The Tribunal appears to have accepted that the activities themselves constituted the “treatment” meted out to the children, although this is nowhere explicitly stated.

6 The appellant makes no complaint before the Panel concerning the Tribunal’s approach to the evidence, rather this appeal has been fought on the same basis as the hearing below. At no stage was the appellant’s argument either before the Tribunal or before this Panel framed in terms of indirect discrimination, perhaps understandably so, given that there was no evidence that the children were required by the respondent to participate in the various activities. Indeed, the appellant’s own evidence established that when he did notify the school of his objection to the children’s inclusion in these activities, the respondent immediately provided alternative arrangements for the children during those times. Mere attendance at school cannot in those circumstances amount to the imposition of a requirement to participate in certain activities. The appellant consistently pressed his complaints under s 7(1)(a) and (c) and s 17(2) of the AD Act.

7 The argument before the Tribunal and before the Panel (the appellant was represented by counsel at all times) focussed primarily on the concept of “race”. With respect to the appellant, it appears to the Panel to be a misconceived focus and one which, in some respects, sidetracked the Tribunal into a consideration of issues which need not have been considered in order to determine the matter. However, the Tribunal’s approach does not in our view impugn the decision. Accepting for present purposes that the activities themselves constituted the “treatment”, the flaw in the appellant’s case before the Tribunal under s 7(1)(a) readily becomes apparent. There was no less favourable treatment of the appellant’s children than the treatment accorded to every other child at the school in respect of the relevant activities. It was implicit in the appellant’s case that his children received exactly the same treatment as every other child who participated in the activities at Easter and Christmas. Had the Tribunal dealt with this threshold issue, the complaints under s 7(1)(a) could have been dismissed without more.

8 The Tribunal dealt explicitly with the issues of segregation (s 7(1)(b)) and denial of access or detriment (s 17(2)) at para 72 and paras 95 and 96 respectively. The argument before the Tribunal on the issue of segregation became bound up with an examination of the provisions of the Education Act 1991. It would not be productive to revisit this argument for the purposes of this appeal. Suffice to say that the term “segregation” is not defined by the AD Act and should bear its ordinary meaning, namely, “to separate from”. There was no dispute that the children were separated from their peers when the activities were occurring. To the extent that the Tribunal found that the provision of alternative religious instruction at these times did not fall within the meaning of the term “segregation” as used in the Act, the finding cannot be construed as a denial that the children were separated from others. In the Panel’s view, the Tribunal was referring to the motivation of the respondent in removing the children (see below). The findings by the Tribunal that there was no denial or restriction of access to any benefit and no detriment were findings of fact open to the Tribunal on the evidence. There is no basis for disturbing them.

9 The Grounds of Appeal pressed before the Panel were essentially two:-

(i) The Tribunal erred in law in its construction of ss 4 and 7 of the Anti-Discrimination Act 1977 which lead in turn to its erroneous characterisation of the complaints as based upon religious discrimination.

(ii) The Tribunal erred in law in holding that the provision of alternative instruction did not fall within the meaning of segregation in the Anti-Discrimination Act 1977. As noted, this ground arose out of the provision by the school, for the benefit of the appellant's children, of other activities while the rest of the school was participating in Christmas activities to which the appellant had objected.

The appellant also seeks leave to extend the appeal to a hearing on the merits.

As to the first ground, the critical reasoning of the Tribunal is to be found at paras 58, 59 and 60 of the Tribunal's decision.

10 Referring to the amendments to the definitions of ‘race’ in section 4(3) of the Anti Discrimination Act (NSW) 1977 and the Second Reading Speech of the then Attorney General, the Tribunal said:

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. (sic)

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.

11 Section 4(1) of the Act defines ‘race’ in the following terms:

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

12 The word ‘ethno-religious’ was added by the amendments to the legislation in the Anti-Discrimination (Amendment) Act 1994. The Second Reading Speech of the Attorney General, the Hon. JP Hannaford (Hansard P 1827) with respect to the purpose and effect of the amendments is recorded as follows:

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 definitions 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 groups, 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 the 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.

13 The first criticism of the decision by the appellant is that the Tribunal failed to properly construe the word "race" in s 4 as amended, as including all persons professing the Jewish faith as a racial group. In this regard the appellant places particular emphasis upon the insertion of the word "ethno-religious" in the definition of "race". In some respects, this was a false issue before the Panel, given that it was conceded by the respondent before the Tribunal and the Panel that the appellant and his children are members of a race for the purposes of the AD Act. In effect, the appellant maintained that the Tribunal was not entitled to refer to the Second Reading Speech of the Attorney General set out in part above as an aid in the construction of the term "race".

14 We reject this submission, and hold that the Tribunal correctly made reference to the Second Reading Speech of the Attorney General. The word "ethno-religious" is not defined in the Anti-Discrimination Act. It does not appear in the standard dictionaries of the English language, including the Macquarie Dictionary and the Oxford English Dictionary, nor indeed in the antique edition of the New Collins Dictionary referred to by counsel for the appellant. Bearing these considerations in mind, and the difficulties inherent in a proper understanding of a composite word such as "ethno-religious", we are of the view that the phrase is ‘ambiguous or obscure’ within the meaning of the Interpretation Act 1987 (NSW), section 34 (1)(b)(i), entitling us to have reference to the Second Reading Speech of the Attorney General in accordance with section 34 (2)(f). In any event, it has long been regarded as a legitimate tool of statutory construction to consider the historical setting of a statute in terms of the mischief which was intended by the legislature to be addressed by amending legislation : Pambula District Hospital v Herriman (1988) 14 NSWLR 387 at 410. The mischief to which the amendments of 1994 were directed was an unduly narrow definition of race. In order to understand to what extent that definition was broadened it is entirely legitimate to look to extrinsic material.

15 When reference is had to the address of the Attorney General, two matters become immediately clear. The first is that, notwithstanding the verbal gymnastics involved, it is not inappropriate within the meaning of the anti-discrimination law of NSW, to refer to members of the Jewish faith as comprising a race ; see also Mandla v Dowell Lee [1983] 2 AC 548 at 562-563.

16 The second aspect concerns the principal argument of the appellant. The penultimate paragraph of the Second Reading Speech makes it clear that the amendments to the definition of race in section 4(1) of the 1977 Act, were not designed to 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. As appears from paragraphs 58 to 60 of the Tribunal's decision, the fact that the appellant may validly claim membership of the Jewish race on behalf of his children, by virtue of their adherence to the Jewish faith, does not of itself convert every discriminatory act (assuming for present purposes that there was discrimination) into discrimination on the ground of race. Explicitly in para 60, the Tribunal found that the alleged discriminatory conduct did not occur on the ground of race within the meaning of s 7(1) of the Anti-Discrimination Act 1977 but on the ground of religion.

17 The appellant’s counsel sought to address the implications adverse to his client’s case arising from this finding and the passage referred to above in the Second Reading Speech, by relying upon section 7(2) of the 1977 Act. Sub-section 2 provides:

For the purposes of sub-section 1(a)(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.

18 It was submitted that the words "a characteristic that appertains generally to persons of that race" were misconstrued or overlooked by the Tribunal. The Tribunal did in fact refer to the provision at para 49 of its decision. It was strenuously argued on this appeal that a characteristic that appertains generally to persons of the Jewish faith is that they practice the Jewish religion. Therefore, according to the appellant's submission, if the respondents acted on the ground of the children’s practice of the Jewish religion, they acted on the ground of race. Assuming that construction for the purposes of argument, it does not dispose of a critical issue, namely, did the respondent act in the way it did on the ground of the children's adherence to the Jewish faith. It is not sufficient to establish that the children were exposed to Christian teachings in the course of the Christmas and Easter activities at the school by virtue of their presence in the student body. What would have to be established is that the children's adherence to the Jewish faith was a factor in the respondent's decision to include them in the Christmas and Easter activities. The respondent's actions in this regard must have been by reason of or based upon the children's practice of the Jewish religion. There was absolutely no evidence before the Tribunal which could support such a finding. The respondent's conduct occurred in spite of the children's religious practices, not because of them : see Waters & Ors v Public Transport Corporation (1991-1992) 173 CLR 349 at 359-360. As noted above, as soon as the respondent became aware of the appellant's objection to his children's participation in those activities, they were offered alternative arrangements.

19 In so far as the appellant relies upon the respondents actions in separating his children from the rest of the students in order to comply with his request that they not be subjected to Christian teachings (s 7(1)(b) of the AD Act), this too cannot be characterised as conduct on the ground of the child's race (again, assuming the construction pressed by the appellant). The respondent did not "segregate" the children until the appellant's wishes became known. The respondent acted out of respect for the appellant's position and because it was mandated to so act under s 33 of the Education Act 1991, not for any other reason.

20 However, in our view, the Tribunal was correct to reject the construction relied upon by the appellant. It is not a legitimate construction of the Act to import, by the back door, a prohibition on religious discrimination by including the practice of the religion generally associated with or observed by a particular ethno-religious group within the concept of "a characteristic that appertains generally to persons of that race". Such an approach necessarily involves a degree of circularity, that is, a person who practices a particular religion qualifies under the Act as a person belonging to that ethno-religious group or race, a characteristic of which is the practice of that particular religion. Such a construction makes a nonsense of the clear intention of Parliament.

21 Neither ground of appeal is made out. There has been no error of law or fact on the part of the Tribunal which could justify leave being granted to extend the appeal to one on the merits. The appeal is dismissed. There is no order as to costs.