Ali on behalf of ALJ and ALK v NSW Department of Education and Communities

[2012] NSWADT 174

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	ALI on behalf of ALJ & ALK v NSW Department of Education & Communities [2012] NSWADT 174
Hearing dates:	30 March 2012
Decision date:	28 August 2012
Jurisdiction:	Equal Opportunity Division
Before:	J Conley, Judicial Member
Decision:	The complaint is dismissed pursuant to section 102 of the Anti-Discrimination Act 1977 (NSW)
Catchwords:	Application for dismissal; Race discrimination; Disability discrimination; Definition of race
Legislation Cited:	Anti-Discrimination Act 1977 (NSW)
Category:	Interlocutory applications
Parties:	ALI on behalf of ALJ & ALK (Applicant) NSW Department of Education & Communities (Respondent)
Representation:	No appearance, (Applicant) Moray and Agnew (Respondent)
File Number(s):	111110

reasons for decision

The Background

1. This was a complaint of race discrimination and disability discrimination in respect of incidents involving ALJ and ALK while they attended their local primary school. The complaint had been commenced by ALI on behalf of ALJ and her twin sister ALK. It is reported that ALJ and ALK were removed from the care of their parents and placed under the care of their maternal grandmother and her husband ALI in 2004. It is claimed by the Respondent that ALI is their step-grandfather. It is also claimed by the Respondent that their first names were changed. They are now being raised as Muslims.

1. ALJ and ALK were enrolled at a local primary school on 29 April 2008. ALI wrote to the school in respect of concerns about the bullying of ALJ and ALK by other children after they commenced wearing the hijab. He also made allegations of inappropriate conduct by the teaching staff at the school. A complaint was made to the Anti-Discrimination Board (the ADB) in relation to these matters on 12 November 2010.

1. The President of the ADB referred the complaint to the Administrative Decisions Tribunal (the Tribunal). The complaint was in respect of an allegation of discrimination on the grounds of race and also disability in relation to the period 12 November 2009 to 12 November 2010.

The Procedure

1. At a case conference the Respondent made an application to the Tribunal to have the complaint dismissed pursuant to section 102 of the Anti-Discrimination Act 1977 (the Act). The matter was listed for a hearing of this preliminary application, which is the application to dismiss the complaint. The Respondent attended the hearing and made oral submissions. ALI declined to attend the hearing and elected to rely upon the documentary evidence filed before the Tribunal.

1. These are the reasons for the decision in respect of the application for dismissal pursuant to section 102 of the Anti-Discrimination Act 1977, (the Act).

The Respondent's submissions

1. The Respondent claims by way of background that ALJ and ALK were born in Australia and were removed from the care of their biological parents in 2004. They were placed in the care of their maternal grand-mother and step-grandfather until they reach the age of 18. The Respondent has a attached a letter from ALI to the ADB dated 28 February 2011. ALI wrote that the twins ALJ and ALK were placed in the care of their grand-parents, (ALI and his wife) and enrolled in a local school. He claims that after they started wearing the hijab, they came home to tell them of issues they were having at the school.

1. In summary the Respondent submits that the complaint of race discrimination due to following an Islamic Religion, is not unlawful under the Act. It is submitted that the complaint of disability discrimination is not substantiated, as there is no evidence of disability, nor is there any evidence that the incidents the subject of the complaint were as a result of any purported disability. It is further submitted that there is no allegation of the Respondent subjecting ALJ or ALK to any detriment due to race or disability and the Respondent denies that it did so.

1. The Respondent relies upon section 102 of the Act that the Tribunal may, at any stage in proceedings, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92 (1)(a)(i) or (ii) or (b). In particular it is claimed that sections 92(1)(a)(i) applies, in that the complaint is misconceived, or lacking in substance. It is further submitted that s 92(1)(a)(ii) also applies as the alleged conduct if proven, would not disclose the contravention of a provision of the Act. It is submitted that both these sections would provide a basis for the dismissal of the complaint.

1. The Respondent submitted that relevant principles for considering whether the complaint should be dismissed are summarised in O'Sullivan v Pehm [2010] NSWADT 57 at [49] - [59]. The Respondent submits that the Act does not make it unlawful to discriminate against another person on the basis of religion, only on the ground of race. The definition of race includes a person's ethno-religious background. It was submitted that the applicant must establish the issue of ethno-religious background as a thresh-hold issue before the issue of race discrimination can be established.

1. The Respondent relies upon its submissions to the ADB dated 31 March 2011.

In our submission, it is not sufficient to establish race discrimination on the basis that a particular religion is followed. To establish race discrimination under the Act it must be established that the discrimination is on the basis of the person's race or ethno religious origin : see Kunhi v University of New England [2008] NSW ADT 33 (16 December 2008) [145 ADB Report] (Khuni).

1. The Respondent asserts that it appears that the compliant in respect of discrimination is on the basis of the complainants following the Islamic faith. It is submitted that Islam is said to be the faith of the girls step-grandfather, who now cares for them with their maternal grand-mother, and the faith in which they now raise ALJ and ALK .

1. The Respondent referred to ALI's reply to the ADB dated 27 April 2011 where he stated:

ALJ and ALK are Muslims and live as Muslims. They have had the issues against them from the time they both began to wear the Hijab (Headscarf). The presumption that they need to belong to a proven ethnic group is absurd. They are Muslims and Muslims are part of all varieties of cultural groups. They are not part of some stereo typical group or race. They have been forced to endure many distasteful issues because they are Muslims which is regardless of their heritage or race.

1. The Respondent submitted that in the matter of Khuni, this Tribunal stated:

Race is defined in section 4 of the AD Act to include, "colour, nationality, descent and ethnic, ethno-religious or national origin." Ms Khuni says she is an Australian national and a Muslim. Ms Khuni declined to identify her race any more precisely. Islam is a religion, not a race or an ethno-religious origin: Khan v Commissioner, Department of Corrective Services &anor [2002] NSWADT 131; Toll Pty Ltd trading as Toll Express v Abdulrahman [2-7] NSWADTAP 70. Consequently, even if a reason for the treatment was Ms Khuni's religion, such conduct is not unlawful under the AD Act. Having a foreign name is not a race nor, in the absence of any evidence about Ms Kunhi's ethnic or racial background, can it be regarded as a characteristic of that (sic) appertains generally to persons of a particular race: section 7(2). Because Ms Kunhi has not identified a race other than an Australian national, that comes within the definition of the term in the AD Act, her complaint, if it were to proceed to hearing, would be highly unlikely to succeed. (at paragraph 4).

1. The Respondent submits that ALJ and ALK are Australian and in the care of Mr and Mrs ALI and are now being raised to follow the Islamic religion. It was submitted that even if could be established that their religion was the reason for the treatment complained of, such conduct is not unlawful under the Act.

1. The Respondent noted that ALI claims that ALJ and ALK are diagnosed with "ADD" and "ADHD" and have a slower learning rate to other children their age. He claims that this is another reason why they were being allegedly physically and verbally assaulted. The Respondent submits that no other reference is made to ALJ and ALK as having a disability, nor any evidence provided of the disability.

1. The Respondent submitted that the applicants were not subjected to any detriment by way of their disability. On the facts there is nothing from which to draw an inference that in any of the incidents or assaults that occurred was because they had a slower learning rate than some of the other children, or that it was even known by the children involved that their learning rate was slower. It was submitted that there was nothing in the complaint which could substantiate a complaint of disability discrimination.

1. The Respondent further submitted that the Respondent has not subjected ALJ and ALK to any detriment and there is no allegation of any fault on the part of the Department to establish it has discriminated against ALJ and ALK. Reference was made to Question 4 of the ADB Complaint Form which asks, "who do you think has discriminated against you?" Mr ALI completed the form and answered, "school students".

The Applicant's submissions

1. Mr ALI did not appear at the hearing. On 29 March 2012 Mr ALI confirmed in writing that he would not appear at the hearing and would rely upon "the presented documentation and evidence".

1. In summary Mr ALI conceded in his letter to the Tribunal dated 18 March 2012 that

The children may have been born in Australia but they are perceived to belong to a specific ethno religious group or background. The have been discriminated against because they have been categorised in a specific group & mistreated accordingly. They are classified as "LEBS" because this is the perceived relation of a Muslim (Pale Complexion) in regards to the head scarves.

1. He goes on to state that, "Their family background is of Mediterranean descent, including my wife and myself. We are evidently Muslims both in our appearance & culture & religious practices. This has added to the discrimination as stated in the act, as we are relatives of the children & have attended the said locations on many occasions." He states, "Been (sic) born in a particular location or hospital does not excuse the discrimination the children have endured." He details that ALJ and ALK have been subject to a number of assaults at the school they attend.

1. Mr ALI claimed in the complaint to the ADB on 5 November 2010 that ALJ and ALK have "ADD, ADHD & have a slower learning rate of other children their age by around 18 months. We are concerned for their safety as they are continually been physically & verbally assaulted because they are Muslims & also wear the head scarf & also because they are slower than the average student in their year." He wrote that this has included physical and verbal assaults being called "dumb or stupid Muslims". He claims that they are labelled as disabled because they are Muslim.

The Decision

The Jurisdiction to Dismiss the Complaint

1. The power to dismiss the complaint is found in section 102 of the Act. The Tribunal may, at any stage in proceedings, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92 (1)(a)(i) or (ii) or (b).

1. Section 92 relevantly provides :

President may decline complaint during investigation

92 President may decline complaint during investigation

(1) If at any stage of the President's investigation of a complaint:

(a) the President is satisfied that:

(i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or

(ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or

...

(b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint,

the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint.

1. Sections 92(1)(a)(i) provides the complaint may be dismissed if misconceived or lacking in substance. Section 92(1)(a)(ii) provides the complaint may be dismissed if the conduct alleged if proven, would not disclose the contravention of a provision of the Act.

1. The power to dismiss a complaint summarily pursuant to section 102 of the Anti-Discrimination Act, (formerly, s 111(1)), has been the subject of numerous decisions of the Tribunal. The Tribunal has adopted a cautious approach to the exercise of this power. It has been noted in a line of decisions, that the power should be exercised with exceptional caution and only if the circumstances clearly warrant such action, including, Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16; Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73;] NSWADT 179; Bassili v Star City Pty Ltd [2008] NSWADT 62.)

The claim of Race Discrimination

1. In relation to the claim of race discrimination it is submitted by the Respondent that the conduct if proven would not amount to a contravention of the Act.

1. There is no basis in the Act which provides that it is unlawful to discriminate on the ground of religion. The claim alleges discrimination on the grounds of race. Section 4 of the Act defines race to include "colour, nationality, descent and ethnic, ethno-religious or national origin". The factual basis of the complaint is that both ALJ and ALK are being raised as Muslims and wear the hijab. There is no claim that they are of any particular colour, nationality, descent and ethnic, ethno-religious or national origin. To the contrary Mr ALI wrote, "The presumption that they need to belong to a proven ethnic group is absurd. They are Muslims and Muslims are part of all varieties of cultural groups. They are not part of some stereo typical group or race. They have been forced to endure many distasteful issues because they are Muslims which is regardless of their heritage or race."

1. Mr ALI concedes that the two children were born in Australia, but claims that they are "perceived to belong to a specific ethno religious group or background". He goes on to claim that, "They have been discriminated against because they have been categorised in a specific group and mistreated accordingly." He states that they have been "classified" as "LEBS", "because they were a headscarf" and "this is the perceived relation of a Muslim". In his submissions he comments in passing that he and his wife are of "Mediterranean" descent. He does not provide any details as to how this would relate ALJ and ALK belonging to any particular ethno-religious group.

1. Much consideration has been given to the meaning of race and in particular the term "ethno-religious". The issue of whether the term includes discrimination on the grounds of religion has been considered by this Tribunal. In Khan v Commissioner, Department of Corrective Services & anor (EOD) [2002] NSWADT 131 the Tribunal considered the meaning of "ethno-religious" in the context of a claim of discrimination on the ground of race. The Tribunal noted that Muslims "do not share common racial, national or ethnic origins". It was stated that it is a fallacy to refer only to ethnicity or religion in determining whether or not a person belongs to an "ethno-religious" group. The term was found to signify "a strong association between a person's or a group's nationality or ethnicity, culture, history and his, her or its religious beliefs and practices."

1. The Tribunal went on to conclude that it was insufficient for the applicant to merely assert a Muslim faith in order to fall within the statutory definition. There must be evidence that there exists a close tie between that faith and race, nationality or ethnic origin for them to be regarded as a member of an "ethno-religious" group. In Ekermawi v Network Ten Pty Limited [2008] NSWADT Deputy President Hennessy reaffirmed that approach. It was stated, the "the authorities are clear that Islam per se is not an ethno-religious origin under the provisions of the Anti-discrimination Act". She referred to the decision of Khan and adopted the reasoning of the Tribunal in relation to this issue.

1. The Respondent has clearly put Mr ALI on notice of this issue. Despite this, the applicant has failed to identify in any way, the ethno-religious background of ALJ and ALK . The complaint would appear to be based entirely upon a claim of discrimination because they are Muslim which includes the wearing of the hijab. The complaint therefore cannot be substantiated as discrimination on the grounds of race.

The claim of Disability Discrimination

1. In respect of the claim of disability discrimination, the Tribunal has had regard to material before it. This includes the letters of complaint sent by Mr ALI to the School Principal and also his letters to the Anti-Discrimination Board dated 28 February 2011 and 27 April 2011.

1. In his letters to the school Mr ALI sets out his concerns in respect of allegations of discrimination on the grounds of race. He details numerous incidents relating to the bullying of ALJ and ALK because they are Muslim and because they wear the hijab. He details his allegations of inappropriate responses by the teaching staff, again relating to the wearing of the hijab. He notes that the issues commenced when ALK and ALJ started to wear the hijab. He details his concerns about ALJ and ALK participating in scripture and undertaking religious based school work. In his letter to the ADB dated 28 February 2011 he writes, "The twins suffered several situations based solely on their Muslim status (Identity & appearance)..." There is no reference in the correspondence to any factual matters involving conduct relating to a disability. The applicant does not identify how the respondent has discriminated against ALJ and ALK on the grounds of disability.

1. Mr ALI refers to the issue of disability in his letter of complaint to the ADB. In relation to the claim of disability discrimination the applicant claims that,

The twins are both diagnosed with have ADD and ADHD and also have a slower learning rate than other children their age by around 18 months. We are concerned for their safety as they are continually been (sic) physically & verbally assaulted because they are Muslims & also wear the head scarf & also because they are slower than the average student in their year.

1. Mr ALI has not filed any evidence of ALJ and ALK 's disability. More critically, he does not identify how the respondent has discriminated against ALJ and ALK on the grounds of their disability and there is no reference in the correspondence to any factual matters involving a disability. Taking the claim at it's highest the Tribunal was not satisfied that there was a factual basis upon which to ground a claim of discrimination on the ground of race.

1. The Tribunal therefore finds that the complaint of discrimination on the ground of race and also the complaint of discrimination on the ground of disability should be dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

Registrar

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Decision last updated: 28 August 2012