AB v NSW Minister for Education and Training

[2003] FMCA 16

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AB v NSW MINISTER FOR EDUCATION [2003] FMCA 16

DISCRIMINATION – Racial discrimination – whether requirement that a student wishing to enrol in selective school be a permanent resident or citizen can constitute indirect discrimination – whether citizenship or permanent residence constitute national origin – whether there is a distinction between national origin and nationality.

INJUNCTION – Requirement for serious issue to be tried – whether remedies as sought in application constitute preserving the status quo – whether there is need for orders where respondent has indicated acceptance of terms through Counsel – whether there is a need to consider balance of convenience where no grounds exist.

Racial Discrimination Act 1975 (Cth), s.9
Human Rights and Equal Opportunity Act 1986, s.46PP

Li v Minister for Immigration [2001] FCA 1414
Gardner v National Netball League Limited [2001] FMCA 50
Lincoln v Holmesglen Institute of TAFE [1999] FCA 602
De Silva and Others v Ruddock (1998) unreported FCA
Ealing London Borough Council v Race Relations Board [1972] AC 342
De Silva v Minister for Immigration (1998) 159 ALR 355
McIntosh v Australian Postal Corporation  [2001] FCA 1012
Beck v Leichhardt Municipal Council  [2002] FMCA 331

Applicant: AB by his Litigation Guardian BB

Respondent: NSW MINISTER FOR EDUCATION AND TRAINING

File No: SZ 80 of 2003

Delivered on: 29 January 2003

Delivered at: Sydney

Hearing date: 29 January 2003

Judgment of: Raphael ACFM

REPRESENTATION

Solicitor for the Applicant: Charles Cassimatis of Henry Davis York

Counsel for the Respondent: Mr T Lynch

Solicitors for the Respondent: Crown Solicitors Office

ORDERS

1. Application dismissed.

2. Applicant to pay respondent’s costs in the sum of $2,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 80 of 2003

AB
by his Litigation Guardian BB

Applicant

And

NSW MINISTER FOR EDUCATION AND TRAINING

Respondent

REASONS FOR JUDGMENT

1. The applicant in this matter, who appears by his mother as his litigation guardian, is an intellectually gifted boy of twelve years of age who came to Australia in March 1995.  He was immigration cleared and is currently the holder of a Bridging E Visa. These visas are granted to persons who are awaiting the outcome of a substantive visa application.  In the applicant’s case it is understood that such an application has been made for a visa which would give him permanent residency in Australia.  It is not disputed that the Bridging E Visa allows the applicant to receive education whilst in Australia.

2. The applicant completed his education at Colyton Public School Mt Druitt at the end of the 2002 academic year.  During the course of that year he took the opportunity to sit the entrance test for selective high schools.  In order to sit such an examination it is necessary to complete a form.  The form was completed on behalf of the applicant by his mother.  The form (Exhibit 2) contains the following:

“9  Residency

If the student is

·    An Australian citizen or permanent resident of Australia write “A”.

·    A citizen of New Zealand, write “Z”.

·    A permanent resident of New Zealand write “N”.

·    None of the above write “O”.

If “N” or “O” please state whether permanent residency of Australia is expected (“Y” or “N”).

And when permanent residency is expected to begin.”

1. On behalf of the applicant the form was completed by placing in the box the letter “A” indicating that he was an Australian citizen or permanent resident of Australia.

2. The form in question was submitted to the Department of Education by the applicant’s mother.  It had been given to her together with a document entitled “Application Package”.  A copy of that document is Exhibit “1”.  On page 3 of the exhibit there is a paragraph headed “Residence” which states inter alia:

   “Students must be Australian citizens or holders of a visa granting permanent residence status in Australia.”

   It goes on to say:

   “If you do not meet these residency requirements at the time of applying but you expect you will meet them in the near future your child will be allowed to take the selective high schools test.  You will have to show evidence that you do meet the requirements before being offered a place.  Places will NOT be held for students who do not satisfy residency requirements.

   All successful applicants will be required to show original documentation such as birth certificates or relevant visas as proof of residency before enrolment can be finalised by the school.”

3. The applicant sat the test and on 3 September 2002 his parents received a letter from the Department of Education and Training advising them that he had been offered a place in year 7 at Penrith High School.  This was his first choice of selective schools.  It would appear that in December of that year the applicant, through his mother, received a request to provide particulars of his residency status to the Department or to the school.  At that stage the applicant’s mother wrote to the Minister a lengthy letter which is exhibited as “D10” to her affidavit of 23 January 2003.  In that letter she advised the Minister that her son was not a permanent resident or a citizen of Australia and requested that he be allowed to enrol in Penrith High School nonetheless.  The letter was not immediately responded to by the Minister but the applicant’s mother received further correspondence from the Department (exhibited as “E13” and “F15” to her affidavit) advising her that the applicant did not satisfy the residency requirement and was ineligible for placement in a selective high school and that the application would be placed on hold until 31 January 2003.  After receiving these letters the applicant’s mother wrote again to the Minister on 19 December 2002 and on 10 January 2003.  The Minister responded on 20 January 2003 with a letter which said relevantly:

   “The Department of Education and Training advises that the application package for year 7 entry to selective high schools clearly advises parents and prospective candidates that students enrolling in a selective high school must be Australian citizens or holders of a visa granting permanent resident status in Australia.

   I understand that you indicated on the application form that AB was either a citizen or permanent resident of Australia.  However, I am advised that you have subsequently notified the Department that your son is currently on a Bridging Visa Class E.  This is a temporary visa that permits enrolment to a non-selective government high school.

   I regret, therefore, that AB is currently ineligible for selective high school placement.  However, a position will be held for him until 31 January 2003 in the hope that he is granted permanent residency in the intervening period.

   Moreover, if AB is granted permanent residency at any stage after the beginning of term 1, 2003 until June 2003, he will be placed on the reserve list at Penrith High School.”

4. Upon receipt of this letter from the Minister the applicant took steps to refer a complaint to the Human Rights and Equal Opportunity Commission on the grounds that the action of the department constituted indirect racial discrimination contrary to the Racial Discrimination Act 1975 (Cth) (“RD Act”). Section 9 of that Act makes racial discrimination unlawful and defines indirect discrimination in paragraph 9(1A). The application to HREOC has not yet been conciliated.

5. On 24 January 2003 the applicant filed an application in this court seeking the following orders:

   (i)An order in the nature of an interim injunction pursuant to s.46PP of the Human Rights and Equal Opportunity Commission Act 1986 to prevent the respondent from withdrawing the place offered to the applicant at Penrith Selective High School in 2003, pending the determination of the applicant’s complaint lodged with the Human Rights and Equal Opportunity Commission on 23 January 2003 alleging a breach of the Racial Discrimination Act 1975.

   (ii)An order in the nature of an interim injunction pursuant to s.46PP of the Human Rights and Equal Opportunity Act 1986 to direct the respondent to allow the applicant to attend Penrith Selective High School, pending the determination of the applicant’s complaint lodged with the Human Rights and Equal Opportunity Commission on 23 January 2003 alleging a breach of the Racial Discrimination Act 1975.

6. The applicant’s litigation guardian represented the applicant herself and filed with the application an affidavit which clearly explained the nature of her application. 

7. Section 46PP of the Human Rights and Equal Opportunity Act 1986 (“HREOC Act”) is in the following form:

   “46PP(1) [Status Quo and Rights]

   At any time after a complaint is lodged with the Commission, the Federal Court or the Federal Magistrates Court may grant an interim injunction to maintain:

   (a)The status quo, as it existed immediately before the complaint was lodged; or

   (b)The rights of any complainant, respondent or affected person.”

8. An applicant for an injunction under s.46PP must establish both that there is a serious issue to be tried between the parties and that on the balance of convenience it is appropriate for the court to make the order. The type of injunction which can be given is restricted to one which preserves the status quo immediately before the application to HREOC. It is against these criteria that I have considered the current application.

Serious issue to be tried

1. This requirement has been adopted in s.46PP cases by the Federal Court and the Federal Magistrates Court (Li v Minister for Immigration [2001] FCA 1414, Gardner v National Netball League Limited [2001] FMCA 50, Lincoln v Holmesglen Institute of TAFE [1999] FCA 602.

2. I accept that it is possible for policy decisions of the New South Wales Government concerning the education of persons within that state to be capable of being in breach of the RD Act. These policies could constitute direct or indirect discrimination. Section 9(1) of the RD Act is in the following form:

   9(1) [Unlawful Act]

   It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference, based on race, colour, dissent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.”

   In the definition of indirect discrimination the words describing the basis of the acts complained of are repeated including that of national origin. In deciding whether or not a possible breach of s.9 has occurred, which would make the applicant amenable to the jurisdiction conferred by the HREOC Act, consideration must be given to whether or not a policy of the department which clearly discriminates between persons who are Australian nationals or permanent residents and other persons could be, arguably, discriminating on the ground of national origins. This matter was considered by Merkel J in De Silva and Others v Ruddock (1998) unreported FCA.  His Honour considered both the English and Australian authorities including Ealing London Borough Council v Race Relations Board [1972] AC 342 before concluding:

   “Nonetheless, there is powerful independent support for the conclusion that “national origin”, as used in s.9 of the RD Act, does not simply mean citizenship. Article 1(2) of the Convention specifically provides that the Convention is not to apply to distinctions, exclusions, restrictions or preferences made by a state party between citizens and non-citizens. In my opinion, Ealing provides guidance for Australian courts concerning the meaning of the phrase “national origin” as used in s.9 of the RDA Act.”

3. Merkel J’s judgment was upheld by a Full Bench of the Federal Court in De Silva v Minister for Immigration (1998) 159 ALR 355. Their Honours accepted the distinction between nationality and national origin and confirmed the right of the state to make laws or enact policy which differed between persons who were its citizens and persons who were not. The policy decision made by the New South Wales Department of Education was a decision made on that latter basis. It seems to me that the diverse multicultural society found in New South Wales and in particular in Sydney militates against the possibility that requiring a person to comply with the condition of citizenship or residence would have the effect of nullifying or impairing that person’s recognition, enjoyment or exercise, on an equal footing, by persons of the same national or ethnic origin as the other person of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

4. Whilst not denying the ability of a properly instructed and skilful Counsel to make an argument that the actions of the department constituted indirect discrimination against the applicant, I would have to say that on the basis of current authority it is an argument that is most unlikely to succeed.

The Status Quo

1. The importance of correctly understanding what the status quo is immediately before the application to HREOC, was considered by Heery J in McIntosh v Australian Postal Corporation [2001] FCA 1012. I also considered it in Beck v Leichhardt Municipal Council [2002] FMCA 331. In this case I accept the submission of the respondent that the status quo consists of the offer to the applicant of a place in the Penrith High School subject to his complying with the condition that prior to enrolment he be an Australian citizen or permanent resident. The applicant seeks an injunction which would have the effect of holding open a place to a person who does not comply with such condition. That is not the status quo. These injunctions exist to prevent rights from being taken away from persons who have made a complaint to HREOC. They do not exist to create rights. If I awarded an injunction to the applicant on the basis of the first prayer in his application there would be little utility, because the Minister has indicated no intention of withdrawing the place offered to the applicant on the condition upon which it was offered. It is simply that the applicant cannot fulfil that condition. If I was to grant the applicant an order in the nature of his second prayer I would be doing far more than preserving the status quo; because that requires the Minister to allow the applicant to attend a school that he was not attending at the date upon which the complaint to HREOC was filed.

2. There are two matters of status quo which should be preserved.  These are that the applicant has until 31 January 2003 to establish that he is an Australian citizen or the holder of a permanent residence visa.  If he can do this he can enrol in the school.  The second is that if his residence or citizenship status changes after 31 January but before the end of June 2003 he can advise the Minister and be placed on a reserve list for the school.  I do not believe there is any necessity to order an injunction in respect of either of these matters as Counsel for the Minister has indicated that his client does not resile from either of those positions.

Balance of Convenience

1. In the light of the findings which I have made I do not believe it is necessary to consider this matter and I did not call upon the respondent’s counsel to address me on it. 

2. I am not satisfied that the conditions under which an injunction may be granted under s.46PP exist in this case. I dismiss the application.

   
   

   I order that the litigation guardian of the applicant shall pay the respondent’s costs which I assess in accordance with Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules in the sum of $2,500.00.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael ACFM

Associate: 

Date: