AB v State of New South Wales
[2005] FMCA 1113
•8 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AB v STATE OF NEW SOUTH WALES | [2005] FMCA 1113 |
| HUMAN RIGHTS – Racial discrimination in education – exclusion of student of Romanian national origin from a selective NSW high school on the basis that he is not an Australian or New Zealand citizen or an Australian permanent resident – consideration of whether the requirement of citizenship or residence indirectly discriminated against persons of Romanian national origin. |
| Education Act 1990 (NSW), s.34 Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO Law and Justice Legislation (Amendment) Act 1990 (Cth) Migration Act 1958 (Cth) Racial Discrimination Act 1975 (Cth), s.9 |
| AB v NSW Minister for Education [2003] FMCA 16 Australian Medical Council v Wilson (1996) 68 FCR 46 Catholic Education Office v Clarke (2004) 138 FCR 121 Commonwealth of Australia v Stamatov [1999] FCA 105 De Silva v Minister for Immigration (1998) 89 FCR 502 Ebber & Anor v Human Rights and Equal Opportunity Commission & Ors (1995) 129 ALR 455 In the matter of “Carl” [2003] NSWSC 756 Macabenta v Minister for Immigration (1998) 90 FCR 202 |
| Applicant: | AB |
| Respondent: | STATE OF NEW SOUTH WALES |
| File Number: | SYG1031 of 2004 |
| Judgment of: | Driver FM |
| Hearing date: | 8 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 8 September 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Robertson |
| Solicitors for the Applicant: | Henry Davis York |
| Counsel for the Respondent: | Mr Lynch |
| Solicitors for the Respondent: | NSW Crown Solicitors Office |
ORDERS
The Court directs that the family name of the applicant is not to appear on the transcript.
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1031 of 2004
| AB |
Applicant
And
| STATE OF NEW SOUTH WALES |
Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant in these proceedings is a child who was refused admission to a selective high school (Penrith High School) operated by the respondent. The applicant brings these proceedings pursuant to s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”) in respect of a complaint of unlawful discrimination contrary to s.9 of the Racial Discrimination Act 1975 (Cth) (“the RDA”).
The applicant’s mother was appointed litigation guardian of the applicant pursuant to the rules of this Court. On 21 June 2004 I made orders protecting the identity of the applicant from disclosure.
The applicant was refused admission to Penrith High School because he is not an Australian citizen or permanent resident. He complained to HREOC on 23 January 2003. In that complaint, the applicant asserted that the respondent’s requirement that he be an Australian citizen or permanent resident discriminated against him on the basis of his Romanian national origin. A delegate of the President of HREOC terminated the complaint on 11 March 2004 on the basis that the complaint was lacking in substance. It appears from the letter accompanying the notice of termination from the delegate that she reasoned that the decision to exclude the applicant was based on citizenship or permanent residence which bore no connection with the applicant’s race.
The present proceedings were commenced by application filed on 7 April 2004. The applicant now relies upon an amended application filed on 12 July 2004. Relevantly, the applicant seeks a declaration that his exclusion from Penrith High School was unlawful and an order requiring the respondent to admit him to the school for the commencement of the 2006 academic year.
Although it is not clear on the face of the amended application, Mr Robertson, for the applicant, told me that the claim is one of indirect racial discrimination contrary to s.9(1A) of the RDA. The applicant concedes that there is no case of direct racial discrimination.
The facts
There is no disagreement between the parties about the essential facts in this case. The disagreement between the parties relates to the legal consequences of the agreed facts. The parties have agreed upon the following statement of facts:
·Penrith High School is a government school within the meaning of the Education Act 1990 (NSW).
·Penrith High School is a selective school which caters for academically gifted students.
·The applicant is a child under the age of 18.
·The applicant is of Romanian national origin. Since March 1995 (at age 4) he has been domiciled in New South Wales.
·The applicant started kindergarten in April 1995 and has had a continuous education since that time. He is now aged 14 and is in year 9.
·At the time the applicant applied for entry to a selective high school he was not either a citizen of Australia or New Zealand, or a permanent resident of Australia as that term is used in the Migration Act 1958 (Cth).
·The relevant policy relating to admission to a selective high school in 2003 was contained in the “Guidelines for Schools – Enrolment of Permanent Residents and Temporary Visa Holders in NSW Government Schools July 2001” (“the policy”) and the “Application Package for Year 7 Entry to Selective High Schools in 2003” (“the application package”). One of the criteria for entry into a selective high school, as contained in the policy, is that the student must be either an Australian or New Zealand citizen or permanent resident of Australia.
·The applicant was provided with the application package, but was not provided with a copy of the policy prior to Supreme Court proceedings taken on his behalf (see below).
·In April 2002, the litigation guardian (the applicant’s mother) completed an application form seeking placement of the applicant at a selective high school in 2003.
·The applicant satisfied the academic criteria for admission to a selective high school and a place was offered to him at Penrith High School on 3 September 2002. Confirmation by the Department of acceptance of the offer was sent on 17 September 2002 by Mr Bob Wingrave, Leader of the Selective Schools Unit.
·However, the litigation guardian and the applicant’s father were advised in writing on 18 December 2002 by Ms Robyn McKerihan, the then Director of the Student Assessment & School Accountability Directorate at the Department of Education and Training (“the Department”), that the applicant did not satisfy the residency criteria and therefore was ineligible for placement at a selective high school.
·The Minister for Education and Training’s (“the Minister”) decision in relation to the application was given on 20 January 2003 and is contained in a letter to the litigation guardian of that date. The Minister confirmed that the applicant was ineligible for a selective high school placement but that a position would be held for the applicant until 31 January 2003 should he be granted permanent residency.
·The applicant, through the litigation guardian, made a complaint in respect of the Minister’s decision to HREOC on 23 January 2003.
·The substance of the applicant’s compliant to HREOC was that the Minister discriminated against the applicant on the basis of race.
·The applicant, through his litigation guardian commenced proceedings in the Federal Magistrates Court seeking an interim inunction pursuant to s.46PP of the HREOC Act to direct the respondent to allow the applicant to attend Penrith Selective High School, pending the determination of the applicant’s complaint lodged with HREOC.
·Raphael ACFM dismissed the application on 29 January 2003.
·The applicant, through his litigation guardian subsequently sought an injunction in the Supreme Court, which was dismissed by Sperling J on 30 January 2003.
·HREOC did not accept the matter as a complaint for the purposes of the RDA and therefore determined not to investigate.
·The applicant through his litigation guardian then commenced proceedings in the Supreme Court of NSW seeking judicial review of the Minister’s decision on the ground that the decision to refuse admission was made contrary to s.34(5) of the Education Act 1990 (NSW).
·On 24 July 2003, Adams J of the Supreme Court of New South Wales delivered judgment finding that the applicant had failed to establish an entitlement to the relief sought.
·The applicant made a subsequent complaint to HREOC on or about 22 December 2003. The substance of the applicant’s complaint to HREOC was that the decision by the Minister involved direct and indirect racial discrimination.
·This complaint was terminated by HREOC by way of Notice of Termination dated 11 March 2004.
The legislation
Section 9(1A) of the RDA provides as follows:
Where:
(a) a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and
(b) the other person does not or cannot comply with the term, condition or requirement; and
(c) the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or 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;
the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person's race, colour, descent or national or ethnic origin.
Annexed as a schedule to the RDA is the International Convention on the Elimination of all forms of Racial Discrimination. Paragraph 4 of Article 1 of the Convention provides that:
Nothing in this Convention may be interpreted as affecting in any way the legal provisions of the States’ Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality.
The evidence
The parties jointly tendered a bundle of documents relevant to this case. The joint tender comprises exhibits J1 – J16. These are:
J1 Guidelines for Schools – Enrolment of Permanent Residents and Temporary Visa Holders in NSW Government Schools July 2001.
J2 Application Package for Year 7 Entry to Selective High Schools in 2003.
J3 Application form completed by the applicant seeking a placement at a selective high school.
J4(a) Letter from Bob Wingrave, Leader of the Selective Schools Unit to the litigation guardian dated 3 September 2002.
J4 (b) Letter from Bob Wingrave, Leader of the Selective Schools Unit to the litigation guardian dated 17 September 2002.
J5 Letter from Robyn McKerihan to the litigation guardian dated 18 December 2002.
J6 Letter from the Minister for Education and Training to the litigation guardian dated 20 January 2003.
J7 Complaint filed with HREOC on 23 January 2003.
J8 Reasons for decision of Raphael ACFM of 29 January 2003.
J9 Reasons for decision of Sperling J of 30 January 2003.
J10 Letter from HREOC to the litigation guardian dated 3 February 2003.
J11 Reasons for decision of Adams J of 24 July 2003.
J12 Applicant’s second complaint to HREOC.
J13(a) Letter from HREOC to Jan McClelland dated 22 January 2004.
J13(b) Letter from John Murn to HREOC dated 3 March 2004 (excluding attachments that are otherwise included in this list).
J14 Notice of termination dated 11 March 2004 and letter from HREOC to the litigation guardian of the same date.
J15 Applicant’s current visa.
Mr Robertson tendered two other documents. Exhibit A1 comprises two emails on 26 July 2005 and 5 August 2005 relating to data on the rate of citizenship and permanent residence status amongst persons born in Romania but residing in Australia. Exhibit A2 is a community information summary document from the Department of Immigration & Multicultural & Indigenous Affairs relating to the Romanian community in Australia.
Submissions
Mr Robertson made both written and oral submissions. Generally, he notes that the applicant had, but for the question of citizenship and permanent residence, qualified for entry into Penrith Selective High School. The sole reason for refusal of his application for admission to the school was the fact that he was not an Australian citizen, a New Zealand citizen or a permanent resident of Australia. His national origin is Romanian. Mr Robertson submits that it cannot be disputed that the respondent required the applicant to comply with a condition that he be an Australian or New Zealand citizen or a permanent resident of Australia before he would be admitted to the school in 2003. He further submits that it is beyond dispute that the applicant cannot comply with that condition. I understand, in that connection, that the applicant has applied to the Department of Immigration & Multicultural & Indigenous Affairs (“DIMIA”) for permanent residency but has not yet been granted it.
Mr Robertson submits that the issues before the Court are:
a)whether the requirement that the applicant can comply with the condition “has the purpose or effect of nullifying or impairing the … enjoyment or exercise, on a equal footing, by persons of [Romanian] national origin …, of any human right or fundamental freedom in the political, economic, social, cultural or other field of public life”; and
b)whether the condition is not reasonable having regard to the circumstances of the case.
Mr Robertson makes the following written submissions concerning the purpose or effect of s.9(1A)(c) of the RDA:
Subsection 9(1A) of the RDA was enacted to incorporate into the RDA the concept of indirect discrimination. See the Explanatory Memorandum to the Law and Justice Legislation Amendment Bill 1990 (especially paragraph 162) and Hansard, House of Representatives 20 September 1990 at 2339-2340.
The provisions of para (c) of subsection 9(1A) differ from the equivalent provisions in other discrimination legislation. In consequence the concept of indirect discrimination under the RDA is broader than the concept in such other legislation, such as the Sex Discrimination Act. See Australian Medical Council v Wilson (1996) 68 FCR 46 at 81, per Sackville J (and see also Black CJ at 47-48).
The provisions of paragraph 9(1A)(c) will be satisfied if the requirement or condition affects a substantially higher proportion of persons of the Applicant’s national origin, but that is not the only way the provision can be satisfied.
A human right or fundamental freedom for the purposes of s9 of the RDA includes the rights referred to in Article 5 of the International Convention on the Elimination of all forms of Racial Discrimination which is a schedule to the Act (sub-s 9(2)).
The right to education and training is referred to in paragraph (e)(v) of Article 5 of the Convention.
The requirement that students at selective high schools be Australian or New Zealand citizens or permanent residents of Australia has the effect of impairing the exercise by persons of Romanian origin of the right to education on an equal footing with persons of Australian and New Zealand national origin.
The denial of the entitlement to attend selective high schools, if otherwise qualified, is an impairment of the exercise of the right to education.
It is self evident that those of Australian and New Zealand national origin will satisfy the condition imposed upon access to selective high schools as they will be Australian or New Zealand citizens.
It is equally self evident that those of Romanian national origin will not necessarily satisfy the condition. [See also separate submission on population statistics].
No assumptions of the type referred to in Ebber v HREOC (1995) 129 ALR 455 at 481-482 are required to be made in this case. It is clear that the requirement of Australian or New Zealand citizenship or permanent residency has an impact upon those of Romanian national origin which it does not have upon those of Australian or New Zealand national origin.
It follows that the requirement imposed upon the Applicant impairs the exercise of the right to education and training on an equal footing by persons of Romanian national origin.
On the question of reasonableness, Mr Robertson makes the following submissions:
In the Applicant’s submission the requirement that students of selective high schools be Australian or New Zealand citizens or permanent residents of Australia is not reasonable.
The principles governing the assessment of reasonableness for the purposes of legislation governing indirect discrimination are set out in Catholic Education Office v Clarke (2004) 138 FCR 121 at 145-146.
Neither citizenship nor residency status has any bearing upon the capacity of a student to utilise and gain benefit from the enhanced education for gifted students available at a selective school.
Fairness would dictate that the most qualified students be offered places without regard to citizenship or residency status.
The Respondent has not chosen in these proceedings to put forward evidence to explain the justification for the requirement.
In other proceedings the Respondent has asserted that the requirement was justified by concern to avoid the risk that a student on a temporary visa will only partially complete the six year programme and thus deprive another student of the opportunity fully to participate in it.
If this be accepted as the motivation for the requirement, in the Applicant’s submission the requirement remains unreasonable.
The first indication that the requirement is unreasonable is the unfair and discriminatory impact of the requirement. There is no indication that this was given any weight by the Respondent in determining to impose the requirement.
The next indication is the fact that it is apparent that there is a not insignificant turnover of students in selective schools. The Respondent has asserted that 500 vacancies occurred in 2003, out of 16,000 places. This would suggest that one in 32 students admitted to a selective high school fails to complete the full six years.
There is no reason to expect that temporary residents are any less likely to complete the full six years at a selective school than those who have satisfied the citizenship or residency requirement.
A further indication of unreasonableness is the fact that the requirement of permanent residency or Australian or New Zealand citizenship is the only criterion utilized to distinguish those likely to complete the six years of high school at one selective school and those not likely to do so.
There are no doubt many students who are equally at risk of not completing the six years. Students whose parents work in certain highly mobile occupations, in particular the defence forces, would constitute one such group.
The application form for selective high school entry in 2003 notably did not even seek to discourage those who may have had reason to expect that they would not remain with the one school for the full six years. Nor did it seek any form of undertaking, representation or promise that the student would remain for that period.
The exclusion of those who are not Australian or New Zealand residents or permanent residents is an arbitrary rule which both excludes students who may very well stay the full six years and fails to exclude others who may clearly be very unlikely to remain the full six years.
The requirement imposed by the Respondent is neither fair nor reasonable.
Mr Robertson made separate submissions on the question of population statistics:
The statistics available in respect of the citizenship and residency status of persons in Australia of Romanian national origin do not permit a full analysis of the proportion of such persons who would satisfy the condition imposed upon the Applicant. In particular, it has proved impossible to identify the proportion of those of Romanian national origin in Australia who do not have citizenship or permanent residency.
The available statistics indicate:
i)That, as at the 2001 census, 95% of persons in Australia of Romanian national origin who were entitled to become Australian citizens had done so; and
ii)That, as at the 2001 census, 89% (or about 11,000) of the approximately 12,500 persons in Australia of Romanian national origin who stated their citizenship were Australian citizens.
It follows that, as at the 2001 census, approximately 6.3% of the persons in Australia of Romanian national origin were not eligible for citizenship.
This does not equate to the number without permanent residency as it will include those who have not yet been permanent residents for a sufficient period to apply for citizenship.
Nevertheless, it is sufficient to demonstrate that the proportion of persons of Romanian national origin who cannot comply with the requirement that they be Australian or New Zealand citizens or permanent residents of Australia is substantially greater than the proportion of persons of Australian or New Zealand national origin.
The latter proportion is clearly nil or almost nil, the former proportion is likely to constitute a significant proportion of the 6.3% of persons of Romanian national origin who are ineligible to apply for citizenship.
In his oral submissions, Mr Robertson submits that Article 5 of the Convention establishes that the right to education and training is a fundamental right. To support his submissions on the purpose or effect of s.9(1A)(c), Mr Robertson took me to the explanatory memorandum and second reading speech for the Law and Justice Legislation (Amendment) Act 1990 (Cth) which introduced s.9(1A). In particular, the explanatory memorandum says the following in relation to s.9(1A):
The operation of sub section 9(1A) will involve an examination of whether the imposed term, condition or requirement impacts disproportionately on persons of the same race, colour, descent or national or ethnic origin as the person on whom the term, condition or requirement is imposed. It will not be necessary, to establish such a disproportionate impact, that the imposition impairs the enjoyment of a human right by every person of that race, colour, descent or national or ethnic origin.
In introducing the Bill in the House of Representatives on 20 September 1990, the then Attorney-General said:
The third amendment will include, within the meaning of “prohibited racial discrimination”, acts that indirectly discriminate by imposing a requirement or condition which is not reasonable in the circumstances and which adversely affects a particular racial or ethnic group. It will not be necessary that the effect is on every person of the racial or ethnic group. Provisions similar to each of these already exists in the Sex Discrimination Act.
Mr Robertson accepts that many Romanians can comply with the citizenship or residence requirement but says some cannot. The statistical data suggests that about six per cent cannot.
Mr Robertson took me to the decision of the Full Federal Court in Australian Medical Council v Wilson & Ors (1996) 68 FCR 46, in particular the judgment of Sackville J at 81.
His Honour went on to argue for a broad interpretation of s.9(1A)(c) having regard to the preamble to the RDA, the language of the Convention and the need for s.9(1A) to add something of substance to s.9(1). Black CJ agreed with Sackville J at pp 47-48.
Mr Robertson submits that while there is no evidence of indirect racial discrimination as between persons of Romanian national origin and persons of national origins other than Australia or New Zealand, there is evidence of indirect racial discrimination as between persons of Romanian national origin and those of Australian or New Zealand national origin. Mr Robertson saw support for this approach in Ebber & Anor v Human Rights and Equal Opportunity Commission & Ors (1995) 129 ALR 455 at 481, commencing at line 40 and continuing to line 10 on page 482.
On the question of the reasonableness of the requirement, Mr Robertson accepts that the applicant bears the onus on establishing that the requirement was not reasonable, but submits that once that matter is properly put in issue, an evidentiary onus passes to the respondent. He submits that the respondent has not discharged that evidentiary onus. He notes that no other states in Australia have selective schools and that, accordingly, students from other states may be disadvantaged in moving to New South Wales by being denied admission to a selective school. Mr Robertson also adopted a proposition put by me, that the respondent’s apparent objectives, of ensuring that persons are likely to undertake a full course of study, might be met if the requirement was merely one of having made an application for permanent residency or citizenship.
Mr Lynch, for New South Wales, made oral submissions. He agrees that the starting point is consideration of s.9(1A)(c) but disagrees with the balance of Mr Robertson’s submissions. Mr Lynch notes that the authorities establish that there cannot be any claim of direct racial discrimination in this case. He submits that the same reasoning means that there cannot be a claim of indirect discrimination either. He submits that the applicant’s claim confuses national origin with nationality. The requirement is one based on nationality or permanent residence. It has no connection to national origins.
Mr Lynch submits that if the applicant, belonging to a class of persons of Romanian national origin, is to be compared with Australians or New Zealanders, he must be compared to Australians or New Zealanders who do not have citizenship or permanent residency in Australia. He submits that there is no evidence that persons of Australian or New Zealand national origin are advantaged by the requirement if they have no entitlement to citizenship or permanent residence (or a right of indefinite residence in the case of New Zealanders).
Mr Lynch submits that s.9(1A)(c) does not allow the division of a target group into sub groups. He submits that the class of Romanians must be considered as a whole and that the overwhelming majority of persons of Romanian national origin (about 94 per cent) are able to meet the requirement. Nevertheless, he accepted that the process for persons of Australian national origin to acquire citizenship or permanent residence is different than for persons of other national origins.
Mr Lynch submits that the applicant’s claim cannot succeed in the face of the reasoning of the Full Federal Court in Macabenta v Minister for Immigration (1998) 90 FCR 202, at 212 commencing at letter G where their Honours said:
We reject the appellant’s alternative proposition which was based on an assumption (contrary to her primary submission) that the expression “national origin” was to be construed as not being synonymous with the term “nationality”. The alternative proposition asserted that a factual inquiry was sufficient to show that s 10 came into operation in the present matter. Our reason for doing so is that the argument, although worded to some extent in terms of national origin, focuses upon and is dependent upon nationality. The argument has to be so focused, because that is what s 10 fixes upon. The comparison required by s 10 is, relevantly, between rights not enjoyed (or enjoyed to a more limited extent) by persons of particular ethnic or national origin by reason, in this case, of the Visa Provisions. The references in the appellant’s submissions to two “classes” of nationality also, in our view, bypass the requirement of the section that there be a relevant causal connection between the different enjoyment of rights. It is the operative discrimen of nationality or citizenship which, in our opinion, breaks the claimed chain of causal connection.
Mr Lynch submits that the same reasoning must apply to the question of “national origin” in s.9. He further submits that there could be no difference in the interpretation of “national origin” as between s.9(1) and s.9(1A).
Mr Lynch took me to the judgment of Sackville J in Australian Medical Council v Wilson at page 82 where His Honour said:
I do not think that the Commission fell into error simply by comparing OTDs with graduates of accredited medical schools. It may be accepted that the members of these two groups were not required to comply with the same "term, condition or requirement". Nonetheless, for the reasons I have given, I do not think that s.9(1A)(c) limited the comparison to the impact of the examination and quota requirements to disparate groups (defined by race, colour, descent or national or ethnic origin) of OTDs.
Likewise, Mr Lynch submits that the whole of the target group and no one else must be considered. He submits that the applicant cannot establish that Romanians are at any disadvantage because of the respondent’s requirement when compared to any other national group.
As to the reasonableness of the requirement, Mr Lynch submits that exhibits J5 and J6 show that the applicant was treated reasonably. He submits that the purpose of the respondent’s requirement is clear from the decision of the NSW Supreme Court in the applicant’s case before that Court. The judgment of Adams J is reproduced at exhibit J11[1]. In paragraph 3 of his judgment His Honour said:
The Department has published guidelines for schools concerning the enrolment of permanent residents and temporary visa holders. In substance, that document repeats the criteria to which I have referred and specifically provides that “students holding temporary visas are not eligible to enrol in ... selective high schools”. The plaintiff’s bridging visa is a temporary visa. The guidelines do not advert to the possibility that the residence requirement will be applied otherwise than strictly. The reason for the requirement is essentially based upon the consideration that demand for places in selective high schools is so great that preference is given to persons whose residence is permanent, to avoid the risk that a student on a temporary visa will only partially complete the six year programme and thus deprive another student of the opportunity fully to participate in it. It was not submitted on behalf of the plaintiff that this was not a reasonable consideration justifying the requirement.
[1] In the matter of “Carl” [2003] NSWSC 756
In the course of argument I put to Mr Lynch that I could not accept this as raising an issue estoppel (as Mr Lynch was submitting) on the issue of the reasonableness of the requirement but I could accept it as explaining the reason for the requirement.
Finally, Mr Lynch took me to exhibit J1 and submits that the Court should not compel the respondent to accept the applicant in Penrith High School if discrimination were to be established. He pointed out that there may be an issue of outstanding fees and that it could not be assumed that a place would be available, even if the applicant qualified. Mr Lynch told me that the respondent would not object to an order requiring the respondent to treat the applicant as if he had qualified for admission in 2003.
In reply, Mr Robertson submits that Mr Lynch’s submissions, if accepted, would leave no room for the operation of s.9(1A). He submits that, while it is beyond argument that there was no causal link between the exclusion of the applicant and his Romanian national origin, there was a differential impact of the citizenship or residence requirement. He submits that the respondent can draw no comfort from paragraph 3 of Article 1 of the Convention because that relates to citizenship laws, not other requirements based on citizenship. Mr Robertson submits that, for the purposes of s.9(1A), it is enough if only a substantially higher proportion of the members of the applicant’s national group are disadvantaged by the requirement in comparison with the proportion of the members of one other national group who are disadvantaged by it: see Ebber v HREOC at page 480. He submits that it is self evident that the vast bulk of Australians and New Zealanders are Australian citizens or permanent residents or eligible to be so and that, accordingly, they are better able to comply with the requirement than persons of Romanian national origin. Mr Robertson submits that the comparison should be between persons of Romanian national origin and persons of Australian or New Zealand national origin. He submits that it would be an error to make the comparison between Romanians who are not eligible to be Australian citizens or permanent residents and Australians or New Zealanders who are not eligible to be citizens or permanent residents. The Court should not use the impugned discriminant for the purposes of the comparison. He submits that the effect of the discriminant can be judged by its impact on a part of the target group rather than the whole. It is sufficient if a significant proportion of the target group cannot comply with the requirement. He submits that Sackville J dealt with this issue in Australian Medical Council v Wilson at page 82 at about letter F, although in that case there was an insufficiency of evidence. His Honour said:
… there is nothing to suggest that a person of Indian origin faces any disability in gaining entry to an accredited medical school, compared with persons within the Australian community of different national origin.
Mr Robertson submits that Macabenta provides no authority in relation to a claim of indirect racial discrimination.
I permitted Mr Lynch to make a few brief submissions in response to Mr Robertson’s submissions in reply. He stressed that the Court must identify a group with whom to compare the position of persons of Romanian national origin. He submitted that I might find guidance in the decision of the Full Federal Court in Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission & Anor (1997) 80 FCR 78 at page 119.
Reasoning
In her letter forming attachment “A” to the notice of termination dated 11 March 2004[2], the delegate of the President of HREOC said the following:
The distinction between “citizenship” and “national origin” for the purpose of the RDA has been clearly defined in Maria Macabenta v Minister of State for Immigration & Multicultural Affairs [1998] 1643 FCA (“Macabenta”). In Macabenta, the Full Federal Court of Australia upheld the interpretation given to the expression by the primary judge, Tamberlin J, that “Over a lifetime, a person may acquire a number of different ‘nationalities’ which, depending on the legal regimes in force in any particular country, may be held successively from time to time or even simultaneously where States recognise dual nationality. In these circumstances it may often be a matter of substantial difficulty to determine the relevant nationality of a person for the purpose of a particular regulatory regime. On the other hand, the expression ‘national origin’ is a narrower concept and more readily determined because it is limited to ‘origin’, which is fixed at birth and incapable of change. In framing an International Convention and legislation to implement its provisions against the background of many different legal systems, there is much to be said for preferring a more specific criterion which can be more readily determined with greater certainty”. The Full Court was of the view that there is a distinction between “national origin”, as an indicator of race, and “nationality” or “citizenship” as being a sometimes transient legal status.
I also note in the decision to dismiss your case against the NSW Minister for Education and Training before the NSW Supreme Court on 24 July 2003, Adam J was also of the view that “There is no reference in the criteria to national origin and the reference to citizenship cannot be a reference to national origin even though it may be that a person may qualify for citizenship because of their nation origin. Nor is national origin an implicit element of citizenship”.
Accordingly, even though your son was not allowed entry into a selective High School whilst students who are New Zealand citizens were as per the Department’s policy, your allegation that your son was directly discriminated against on the basis of his race cannot be supported. There is also no basis to support the contention that your son might have been indirectly discriminated against by the Department on the basis of his race as the citizenship criterion does not specifically require that your son be of a particular race and also that his race is not a factor which might prevent him from meeting the established criteria.
[2] Exhibit J14
The issue was also considered by Raphael ACFM in refusing an application for an injunction in earlier proceedings[3]. At paragraphs 11-14 of his judgment Raphael ACFM considered whether there was a serious issue to be tried. His Honour said:
[3] AB v NSW Minister for Education [2003] FMCA 16
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.
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."
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.
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 applicant was not deterred by those observations and, while conceding, on the basis of existing authority, that there can be no claim of direct racial discrimination, the claim of indirect racial discrimination based on national origin is pressed. Mr Robertson, for the applicant, has taken up the challenge held out by Raphael ACFM to a “properly instructed and skilful counsel”.
In its publication “Federal Discrimination Law 2005” at page 47, HREOC notes that very few cases have considered issues of indirect discrimination under the RDA. However, some general principles from cases which have considered indirect discrimination provisions in other anti-discrimination laws are set out in that publication to assist in the interpretation of s.9(1A). I accept that the four elements required to establish indirect racial discrimination are:
a)a term condition or requirement is imposed on a complainant;
b)the term, condition or requirement is not reasonable in the circumstances;
c)the complainant does not or cannot comply with that term, condition or requirement;
d)the requirement has the effect of interfering with the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the complainant of any relevant human right or fundamental freedom.
I also accept that the onus is on the applicant to make out each of these elements[4].
[4] Australian Medical Council v Wilson (1996) 68 FCR 46 at 62
In this case, the term, condition or requirement imposed upon the applicant was that he be an Australian or New Zealand citizen or an Australian permanent resident in order to pursue his education at the Penrith Selective High School. I am satisfied that this term, condition or requirement was not reasonable in the circumstances. I accept that places at selective schools in New South Wales are a scarce commodity. Many more students apply than are selected. I also accept that it is reasonable to impose requirements to ensure that, as far as is practicable, persons entering a selective school are likely to complete their course of education. However, that purpose could, in my view, be achieved by a requirement that the student has applied for Australian permanent residency or citizenship. Making such an application demonstrates a commitment to live in Australia indefinitely sufficient to meet the expectation of completion of a course of secondary education.
It is true that the fact that there is a reasonable alternative that might accommodate the interests of an aggrieved person does not, of itself, establish that a requirement or condition is unreasonable. The Court must objectively weigh the relevant factors, but these can include the availability of alternative methods of achieving the alleged discriminator’s objectives without recourse to the requirement or condition: Catholic Education Office v Clarke (2004) 138 FCR 121 at 146 [115]. It is well known that the process of obtaining permanent residency and citizenship in Australia can be a lengthy one. Even where an application is refused, the process of review and appeal can take years. The present applicant has lived in this country for ten years and is seeking permanent residency. In my view, there is nothing in his circumstances which render it less likely that he would complete a course of education at Penrith Selective High School than if he had already been granted permanent residency or citizenship. The respondent’s condition is unnecessarily restrictive and is disruptive to the educational expectations of both NSW residents, and those who may relocate to NSW from other States, which do no have selective public schools.
There is also no doubt that, at the time he was denied acceptance into Penrith Selective High School, and at the time of the trial of this matter, the applicant could not comply with the term, condition or requirement that he be an Australian or New Zealand citizen or an Australian permanent resident. His application for residency has still not been determined.
The remaining issue to be decided is whether the requirement has the effect of interfering with the recognition, enjoyment or exercise, on an equal footing, by persons of the same national origin as the applicant of the right to education. I accept that Article 5 of the Convention establishes that the right to education and training is a fundamental right protected by the Convention. There is a preliminary question here whether the requirement, based as it is on citizenship or residence, is protected by Article 1 of the Convention. I take the view that it is not. Article 1 provides that the Convention is not to be interpreted as affecting in any way the legal provisions of the States’ parties concerning nationality, citizenship or naturalisation, provided that such provisions do not discriminate against any particular nationality. I take that Article to be limited in its operation to legal provisions concerning the grant or refusal of nationality, citizenship or naturalisation, rather than conditions or requirements based upon the existence of nationality, citizenship or naturalisation. In any event, the limitation in Article 1 is silent on the question of residence.
To breach s.9(1A)(c) of the RDA a requirement must have the purpose or effect of impairing the recognition, enjoyment or exercise, on an equal footing, by people of the same national origin of the applicant of his acknowledged fundamental right to education. At page 56 of its publication “Federal Discrimination Law 2005” HREOC considers the meaning of the words “equal footing”. HREOC refers to the judgment in Australian Medical Council v Wilson (Siddiqui). The case was argued on the basis that the appropriate comparison in determining the question of whether or not rights were being enjoyed on “an equal footing” was between the group to which Dr Siddiqui belonged (including defined as “overseas trained doctors of Indian national origin” and applicants from accredited medical schools who are not required to sit an examination). The majority of the Federal Court held that it was not necessary for the groups to be compared to have been subject to the same requirement. Sackville J stated[5]:
In my opinion, the language used in s.9(1A)(c) is satisfied if the effect of a requirement to comply with a particular condition is to impair the exercise of a human right by persons of the same group as the complainant, on an equal footing with members of other groups, regardless of whether or not those other groups are required to comply with the same condition. Of course, the usual case of alleged discrimination involves the disparate impact of a particular requirement or condition upon two or more groups, each of which is identified by reference to race, colour, descent or national or ethnic origin. But there may well be cases in which members of a group are impaired in the exercise of a human right precisely because they must comply with a condition to which members of other groups are not subject.
[5] at pages 81
In my view, the critical questions to be decided are first, what is meant by the words “national origin” in the RDA (and the Convention), how is the comparison between persons of Romanian national origin and some other group or groups to be made and, finally, what is the result of that comparison?
The meaning of “national origin”
The Federal Court has provided guidance on the phrase “national origin” in several cases. In Australian Medical Council v Wilson (Siddiqui’s case) at page 75 Sackville J said:
…the phrase "national origin", which is used in both s.9(1) and s.9(1A), has received consideration by the House of Lords, in the context of a claim brought under the Race Relations Act 1968 (UK): Ealing London Borough Council v Race Relations Board (1972) AC 342. Section 1(1) of that Act provided that, for the purposes of the legislation, a person discriminates against another if
"on the ground of colour, race or ethnic or national origins he treats that other ... less favourably than he treats or would treat other persons".
The majority of the House of Lords held that a requirement that persons seeking public housing be British subjects, did not contravene s.1(1).
The majority rejected the contention that the phrase "national origins" refers to current nationality. Viscount Dilhorne concluded (at 358), having regard to the "racial objects" of the legislation, the words were intended to refer to "national" in the sense of race and not citizenship. The national origins of the particular applicant were Polish, since his race was Polish. The housing authority had not discriminated against him because of racial origins, but because he was not a British subject. Lord Simon took a similar approach, emphasising (at 363-364) that "national origins" did not necessarily imply statehood. His Lordship took the view that to discriminate, for example, against English, Scots or Welsh, as such, would be to discriminate on the ground of their national origins. Thus, had the applicant been refused housing because of his Polish descent, he would have been discriminated against on the ground of his "national origins".
Lord Cross said this (at 365):
"There is no definition of 'national origins' in the Act and one must interpret the phrase as best one can. To me it suggests a connection subsisting at the time of birth between an individual and one or more groups of people who can be described as a 'nation' - whether or not they also constitute a sovereign state. The connection will normally arise because the parents or one of the parents of the individual in question are or is identified by descent with the nation in question, but it may also sometimes arise because the parents have made their home among the people in question .... Of course, in most cases a man has only a single 'national origin' which coincides with his nationality at birth in the legal sense and again in most cases his nationality remains unchanged throughout his life. But 'national origins' and 'nationality' in the legal sense are two quite different conceptions and they may well not coincide or continue to coincide."
Not all of the reasons put forward in the speeches of the majority in support of these conclusions apply to the RD Act: see at 361-363, per Lord Simon. 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 RD Act.
Secondly, in De Silva v Minister for Immigration (1998) 89 FCR 502 at 512, Black CJ, Goldberg and Finkelstein JJ said at 512:
On appeal, the appellants limited their case to the first of these distinctions, which they expressed alternatively as an exclusion of Sri Lankan citizens who arrived in Australia after 1 November 1993, a preference for Sri Lankan citizens who arrived in Australia prior to 1 November 1993, and a restriction upon the right to remain in Australia of Sri Lankan citizens who arrived in Australia after 1 November 1003. They argued that this distinction, exclusion, preference or restriction is based upon the “national origin” of the appellants in the sense that the appellants all originate from the nation of Sri Lanka. Central to this argument is the submissions that the Regulation differentiates on the basis of citizenship or nationality, and that nationality is a strong indicium of national origin. As it was expressed in the appellants’ written submissions: “That is the case for each of the applicants: their nationality is Sri Lankan, their national origin is also Sri Lankan.” In formulating their case in this way, the appellants sought to overcome the effect of those cases in which a distinction has been drawn between national origin and nationality: see Ealing London Borough Council v Race Relations Board [1972] AC 342; Ebber v Human Rights and Equal Opportunity Commission (1995) 129 ALR 455 per Drummond J; Australian Medical Council v Wilson (1996) 68 FCR 46 per Sackville J. But to say, as the appellants do, that nationality is a strong indicium of national origin, is not to say that those concepts are in truth the same so as to make both prohibited criteria under s.9(1). It is, however, unnecessary for us to decide this point because, in our view, the claim of unlawful discrimination fails for another fundamental reason.
Thirdly, in Macabenta at 211 Carr, Sundberg and North JJ said:
We think that the primary judge was right in construing nationality as equivalent to citizenship, but different from "national origin". We agree, respectfully, with the primary judge that the same meaning should be given to the expression "national origin" in s 9 of the RDA as in s 10 of that Act. We agree also with his Honour's acceptance of the guidance provided by the decisions of the House of Lords in Ealing, by the Full Court of this Court in Australian Medical Council and by Merkel J in De Silva. To that list may be added the Full Court decisions of Yildiz v Minister for Immigration and Ethnic Affairs (1982) 70 FLR 105 at 112-114 and Melkman v Commissioner of Taxation (1988) 20 FCR 331 at 335-337. In particular, we agree, respectfully with the following passage from the speech of Lord Cross in Ealing (at 365-6) cited by his Honour:
"There is no definition of `national origins' in the Act and one must interpret the phrase as best one can. To me it suggests a connection subsisting at the time of birth between an individual and one or more groups of people who can be described as `a nation' - whether or not they also constitute a sovereign state....
Suppose, for example, that a man of purely French descent marries a woman of purely German descent and that the couple had made their home in England for many years before the birth of the child in question. It could ... be said that the child had three `national origins'; French through his father, German through his mother and English not because he happened to have been born here but because his parents had made their home here. Of course, in most cases a man has only a single `national origin' which coincides with his nationality at birth in the legal sense and again in most cases his nationality remains unchanged throughout his life. But `national origins' and `nationality' in the legal sense are two quite different conceptions and they may well not coincide or continue to coincide."
This accords with the interpretation given to the Convention internationally. A background paper prepared by Mr Ion Diaconu[6] prepared for the 55th session of the Economic and Social Council on 26 February 1999 contains this statement:
The definition of racial discrimination, as given by the Convention, is based on objective elements; it involves any distinction exclusion, restriction or preference; that means, one has to identify an appropriate comparator; as they are based on race, colour, descent, or national or ethnic origin, the comparator is given by reference to persons of a different race, colour, descent or national or ethnic origin…
These concepts are nevertheless not very clearly defined and strictly distinct from each other; the term “descent”, which is not found in any other international document and was suggested by India during the elaboration of the Convention, does not indicate in what way it is different from “national” or “ethnic origin”; some scholars commented that it would include the notion of “castes”; others, that it should indeed add something, because it cannot be easily subsumed under the concepts of national or ethnic origin. There is, certainly, an overlapping between “national origin” and “ethnic origin” although the former seems [to] be a narrower term than the latter. It is difficult to accept the opinion that these terms would cover distinctions both on the ground of present or previous nationality in the ethnographical sense, and on the ground of previous nationality, in the sense of citizenship. As a matter of fact, no case of discrimination on grounds of a previous citizenship, without involving the grounds of ethnic or national origin, was presented in the more than 25 years of activity of the Committee for the Elimination of Racial Discrimination (CERD). It seems rather that the definition was composed by adding as many concepts as possible, in order to avoid any lacunae, as is the case in other documents on human rights.
[6] a member of the committee on the Elimination of Racial Discrimination of UNESCO
The interpretation to “national origin” given by the Full Federal Court in Macabenta was discussed in relation to a claim in indirect racial discrimination in employment in relation to security clearances, in Commonwealth of Australia v Stamatov [1999] FCA 105 at [32]-[34] by von Doussa J. At pargraph 46 His Honour said:
In my opinion when the expression "national origin" is given the meaning attributed to it by the Full Court in Macabenta, the evidence before the Commission could not support a finding that other non-Australian citizens of Bulgarian national origin comprised a group who could not comply with such a condition. The effect of the evidence was that the relevant aspects of checkability depended not upon characteristics that arose at the time of birth, but upon where the non-Australian citizen had lived and worked thereafter. The evidence cannot reasonably support the view that other non-Australian citizens of Bulgarian national origin who had lived their lives in countries where background checks could be conducted could not comply.
It follows, and I find, that “national origin” has the same meaning whether the claim is one of direct or indirect racial discrimination. The meaning of the phrase is that given to it by the Full Federal Court in Macabenta.
The comparative group
I accept that the applicant is a person of Romanian national origin. It is then necessary to compare the situation of persons of Romanian national origin with those of some other group for the purpose of dealing with the effect of the citizenship or residence requirement. The applicant concedes that he cannot produce any evidence to support the contention that persons of Romanian national origin are in any worse position than persons of any other national origin, apart from Australians and New Zealanders. The proposition is that persons of Romanian national origin should be compared with persons of Australian or New Zealand national origin.
The concept of “national origin” when applied to a nation of immigrants such as Australia or New Zealand is a complex and subtle one. About a quarter of the population of Australia was either born overseas or has at least one parent who was born overseas. It follows that a person born in Australia is not necessarily a person of Australian national origin. Many will be but some will retain the national origin (or origins) of their parents. The question of whether a person born in Australia is a person of Australian national origin is one that must be determined by considering the connection of that person with the Australian nation. The same is true of New Zealanders. For most Australians, the concept of “national origin” is indistinguishable from that of citizenship. That is because most people born in Australia acquire Australian citizenship by birth. However, that is not universally the case. I accept that, despite the conceptual difficulties, “national origin” has some meaning separate from citizenship when applied to Australians and New Zealanders. I also accept the applicant’s contention that, for the purpose of testing whether indirect racial discrimination has occurred, the appropriate group to compare persons of Romanian national origin with, is persons of Australian or New Zealand national origin. The comparison should be between the whole groups in Australia, and not a subset of them.
The result of the comparison
The applicant assumes that virtually all persons of Australian or New Zealand national origin would be able to satisfy the requirement that they be citizens or permanent residents in order to attend a selective school in New South Wales. The available statistical evidence, although somewhat general, indicates that the overwhelming majority of persons of Romanian national origin in Australia could also satisfy the requirement. The applicant contends that the requirement of citizenship or permanent residence operates in an indirectly discriminatory fashion against person of Romanian national origin because they must apply for permanent residence or citizenship, and some do not qualify for it, whereas persons of Australian or New Zealand national origin generally acquire citizenship or residence automatically without application.
In my view, that contention falls into the trap of confusing national origin with citizenship. New Zealanders acquire the right to reside indefinitely in Australia by reason of their New Zealand citizenship, not because they are persons of New Zealand national origin. Persons of Australian national origin are not necessarily entitled to Australian citizenship or even permanent residence. If the applicant had been born in Australia he might arguably be considered a person of Australian national origin but he would be in no better position to that which he is now in as a person of Romanian national origin. There are probably many thousands and possibly hundreds of thousands of persons born in Australia who might be accepted as persons of Australian national origin who are not entitled to Australian citizenship or permanent residence. That is most likely because their parents are not Australian citizens or permanent residents. They may nevertheless have lived in Australia for many years and have formed a connection to Australia sufficient for their children to be considered persons of Australian national origin. There is no evidence that such persons are in any better position than persons of Romanian national origin. The applicant cannot limit the comparison to persons of Australian national origin who acquire citizenship at birth. That would be a comparison between persons of Romanian national origin and Australian citizens. There is nothing before me to persuade me that the broad class of persons born in Australia who might be considered persons of Australian national origin are better able to comply with the respondent’s requirement for citizenship or permanent residence than persons of Romanian national origin, whether they were born in Romania or in Australia.
It follows, in my view, that the applicant’s claim fails at the last hurdle, on this question of evidence.
I will hear the parties as to costs.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 8 September 2005
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