Complainant 201822 v Australian Capital Territory (Represented BY the Education Directorate) - [2020] ACAT 69

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COMPLAINANT 201822 v AUSTRALIAN CAPITAL TERRITORY (REPRESENTED BY THE EDUCATION DIRECTORATE) (Discrimination) [2020] ACAT 69

DT 22/2018
Catchwords: DISCRIMINATION – referral of complaint by Human Rights Commission – racial and religious discrimination – direct discrimination – discrimination in the provision of education services – whether the school discriminated against the applicant by reporting him to authorities – where report resulted in applicant referral to Australian Federal Police and Border Force – compensation for humiliation and distress sought – suppression order – administration of justice – public interest

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 39 Discrimination Act 1997 ss 7, 8, 18
Human Rights Commission Act 2005 ss 53A, 53CA, 53E

Cases cited:Alistair v The Queen (1983-84) 154 CLR 404
Cooley v Australian National University [2007] ACTDT 2
Edgely v Federal Capital Press of Australia Pty Ltd [2001] FCA 379
Kovac v The Australian Croatian Club Ltd [2014] ACAT 41
Seven Network (operations) Ltd and Others v James Warburton (No. 1) [2011] NSWSC 385
ZG v Director – General, NSW Department of Education and Training [2006] NSWDT 344

Tribunal: Senior Member H Robinson (Presiding)

Senior Member D Mulligan

Date of Orders:  9 September 2020
Date of Reasons for Decision:         9 September 2020
AUSTRALIAN CAPITAL TERRITORY
CIVIL & ADMINISTRATIVE TRIBUNAL           DT 22/2018

BETWEEN:
COMPLAINANT 201822
Applicant

AND:
AUSTRALIAN CAPITAL TERRITORY (represented by the Education Directorate)
Respondent

TRIBUNAL: Senior Member H Robinson (Presiding)

Senior Member D Mulligan

DATE:9 September 2020

ORDER

The Tribunal orders that:

The application is dismissed.
Pursuant to section 39(2)(b) of the ACT Civil and Administrative Tribunal Act 2008, there is to be:
(a)no publication of the names of the applicant, witnesses named in documents filed in the matter, or the relevant school, or of any information which may allow these identities to be reasonably ascertained; and
(b)No public access to the file.
……..…………………………
Senior Member H Robinson
For and on behalf of the Tribunal

REASONS FOR DECISION

By way of this application, the applicant seeks compensation for discrimination on the ground of race and religion in the provision of educational services.

Summary

The applicant alleges that his school (the School) discriminated against him by reporting concerns about the content of an essay he wrote and his behaviour to the National Security Hotline (the Hotline) and when a teacher singled him out for questioning about events in his ancestral homeland. He says that this unfavourable treatment was because of his race and his religion.
The respondent concedes that concerns about the content of that essay and a change in the applicant’s behaviour influenced the decision to make a report to the Hotline but denies this is unfavourable treatment. It denies that the questioning about events in the applicant’s ancestral homeland is unfavourable treatment or resulted in any detriment.
Although we have ultimately found that there was no discrimination of the basis of race and religion within the meaning of the Discrimination Act, this case raises serious and sensitive issues about the interaction between a young person’s right to individuality and self-expression and a school’s duty of care to its pupils.

The hearing

The matter was heard on 21–24 October 2019. Both parties were legally represented. At the end of the hearing the matter was adjourned so the parties could provide written submissions and for the Tribunal to hand down its decision. The applicant filed his submissions on 15 November 2019. The respondent filed its submissions on 6 December 2019.
The applicant and his father gave evidence. The applicant also called evidence from Dr Clarke Jones and from a school friend (the Friend). The respondent called evidence from the one of the applicant’s teachers (the Teacher) and from the principal (the Principal).

Identification

For reasons that are set out further below, the Tribunal has attempted to deliver these reasons in a manner that best protects the identity of all parties involved. Dates and ages have been omitted, and in some cases the Tribunal has attempted to use gender neutral pronouns. Consequently, the language used is perhaps less clear than would otherwise be the case.

The issue of credit

The applicant’s credit was an issue in the proceedings.
The respondent submitted in its closing submissions that the applicant was an unreliable witness, and the respondent points to aspects of the applicant’s evidence in support of this.
The applicant’s counsel conceded, in his submissions in reply[1], that the applicant was often non-responsive or argumentative, and that he often veered into opinion and speculation. However, the respondent submits that the applicant can be believed when giving evidence about the things he saw or heard.
[1] 24 December 2019 at paragraphs 2 to 5
The applicant is young and was a minor when the alleged unfavourable treatment occurred, and allowances must be made for this. Some of the problems with his evidence are likely due to his tendency to veer into speculation. We are satisfied that there are inconsistencies in the applicant’s evidence, and some implausibility, which we will explain further below. We treat these aspects of his evidence with caution. However, we broadly accept his evidence as to what he actually perceived unless indicated elsewhere.
We do not accept the respondent’s submission that the applicant’s father’s evidence was unreliable. He was, and the applicant’s counsel conceded, a man with a lot to say, but most of it was simply his own opinion, and some of the rest was evidence of things told to him by the applicant, or conclusions drawn from that. There is some conflict between his evidence and the Teacher, but much of that may be explained by different perceptions of events and confusion given the passage of time.
We consider the probative value of the evidence given by the applicant’s expert witness, Dr Jones, in the next part, below.
The credibility of the other witnesses was not seriously questioned. We broadly accept their evidence, albeit with some allowances for dates and chronology, particularly on the part of the Teacher. These are explainable, given the passage of time.

The report of Dr Clarke Jones

At the hearing, the applicant relied upon a report and oral evidence from Dr Jones.
The respondent objected to the admission of this evidence on the grounds of relevance and prejudicial effect. Nonetheless, the Tribunal allowed the report into evidence.
Dr Jones is a criminologist based in the ANU Research School of Psychology. A particular area of interest is in developing more culturally and religiously suitable youth interventions in Muslim communities. Dr Jones has set out his experience in his report, and we are satisfied that he has knowledge and expertise in the development of policy responses to radicalisation.
We accept Dr Jones’ primary contention, which is in any case unlikely to be controversial, that it is important that students feel safe at school. We also accept that unfounded reports to law enforcement bodies such as the Hotline could undermine the trust some students have in their schools and cause them to feel unsafe. There are likely alternative means of dealing with radicalisation that should be explored by policy makers.
However, that is as far as we take Dr Jones’ evidence. He is not psychologist and we are not satisfied that he is qualified to offer opinions on the applicant’s conduct specifically, or to opine on whether the respondent engaged in a form of racial or religious stereotyping.
Dr Jones clearly has strong and well-reasoned opinions on the merits of current policy approaches, but whether there is a better approach than that of involving law enforcement is ultimately a policy question beyond the purview of this decision. Ultimately, Dr Clarke conceded that his “real gripe” was not with the School making the report to the Hotline, but with the AFP deciding to investigate it and interview the applicant.[2] We consider the casual link with the AFP’s conduct in our reasoning below.

Background and factual findings

[2] Transcript of proceedings 23 October 2019 pages 185, line 6- page 186, line 9

The applicant’s parents came to Australia as refugees from another country (the Other Country).
The applicant was born in Australia and is an Australian citizen. He is by faith a Muslim.
The applicant undertook his schooling in the Territory. These events transpired while he was completing years 11 and 12 at the School.
Whilst at the School, the applicant studied for both the International Baccalaureate (IB) and for the Australian Tertiary Admission Rank (ATAR).
Most students in Australia study for either the ATAR or the IB. Studying for both the ATAR and the IB requires a student to complete significantly more work than a student studying for just one of the qualifications.
IB Students are required to complete one subject from each of six subject groups.
Each IB student also must complete three “CORE” subjects. The CORE portion of the IB is made up of three parts, an extended essay, a course entitled Theory of Knowledge (TOK) and participation in extracurricular activities under a program entitled Creativity, Activity, Service (CAS).
Students taking the IB program are required to sit exams at the end of year 12 as well as submit internal and external assessment tasks.
Students receive grades for each of the six subjects on a scale of one to seven, with seven being the highest. Their final score is made up of the combined scores for each subject, as well as potentially up to three points from the CORE part of the IB program.
Under the IB, a student is awarded individual grades for the extended essay and the TOK, which collectively can earn a student three additional marks. The CAS program needs to be successfully completed by an IB candidate. However, no points are awarded for its completion.
The most points an IB candidate can earn is 45 (seven points for each of the six subjects and three points from the extended essay and the TOK). The IB diploma is awarded to students who earn a minimum of 24 points.
At the beginning of the program all IB students are told that all work submitted for their assessment tasks and the CORE is to be their own work, unless the work of others has been correctly acknowledged. They are required to sign a declaration confirming their understanding of that fact. The applicant signed his declaration on 8 February of year 11.[3]

The extended essay

[3] Exhibit R1 Tab 12 Annexure A

The applicant contends that he was treated unfavourably in the marking of the extended essay because of the views expressed in that essay.
The extended essay is an important part of the CORE program. The process of drafting the extended essay is spread over the two years of study, with students providing their supervisor with two draft versions of the extended essay and a final version that was to be marked as part of the CORE program.
After completing the extended essay, the student engages in a viva voce discussion about the essay with his or her supervisor.
At the end of this process the supervisor writes comments on the extended essay. The supervisor also predicts the grade, from A to E, the student will attain for the essay.
The extended essay is then sent out to be independently graded. The independent marker can see the supervisor’s comments on the extended essay but is not able to see (or know) the supervisor’s predicted grade.
The predicted grade is helpful to universities considering applications made by IB candidates, as the results of the IB are not known until after first round offers are made by the universities to those applying for places.
The predicted grade allows universities to consider IB students’ applications on a similar basis to applications made by ATAR students.
To arrive at a predicted grade, the School converts the student’s predicted IB score into an ATAR score using a scale.
The extended essay is scored on the basis of five factors[4] which combine to allow a maximum score of 34 marks. The factors are:
·        Focus and method - 6 marks
·        Knowledge and understanding - 6 marks
·        Critical Thinking - 12 marks
·        Presentation - 4 marks
·        Engagement - 6 marks
[4] Exhibit R1 Tab 12 Annexure C
There are several important guidelines which must be adhered to by the student when drafting the extended essay, including requirements that:
(a)the student is responsible for choosing the subject matter of their extended essay;
(b)the essay must be completed solely by the student, unless the work of others has been correctly acknowledged;
(c)the essay can be no more than 4000 words long; and
(d)the student should have no more than three – five hours mentoring from the supervisor which includes any verbal or written feedback and the completion of a viva voce final discussion on the subject with the student.
The Teacher was the IB co-ordinator. The Teacher’s role was to administer the IB program and to provide pastoral care to the all IB students at the School.
As part of those duties the Teacher was obliged to allocate a supervisor, or in the case of world studies two supervisors, to each IB student. Supervisors were allocated based on their expertise and the subject matter of the extended essay chosen by each student. A supervisor was also appointed to act as a mentor for each student.
In year 11, the Teacher took on the role supervising students who were undertaking their extended essay in the area of world studies.
According to the Teacher’s evidence, an extended essay in world studies is very demanding because it requires the student to demonstrate expertise in two disciplines and to write in the language of those disciplines. In the Teacher’s experience, only one IB student in four years successfully completes an extended essay in world studies.
The applicant chose the two disciplines of history and philosophy for his world studies extended essay.
The teacher’s evidence was that the applicant was given two supervisors for his extended essay; the Teacher, who has a background in history, and Teacher R, whose area of interest is philosophy.
The applicant’s evidence differed. He believes that he was allocated two supervisors; the Teacher, whose background was in history, and Teacher L, who taught philosophy.[5]
[5] Exhibit A1 Tab 3 Annexure HB1 page 13
Ultimately the distinction is of little consequence, as the applicant says that he did not have any contact with either Teacher R or Teacher L when preparing his extended essay; all his dealings were with the Teacher.
The booklet provided by the School to IB students[6] provided guidance to students completing their extended essay in world studies. It provided that extended essays investigate global issues through one of six lenses:
·        Conflict, peace and security
·        Culture, language and identity
·        Environmental and/or economic sustainability
·        Equality add inequality
·        Health and development
·        Science, technology and society
[6] Exhibit R1 Tab 12 Annexure C
Students are expected to:
· Identify a local manifestation of the issue of global importance;
· Develop clear rationale taking an interdisciplinary approach and use the conceptual framework and vocabulary of two Diploma Program subjects (one of which you must be studying).

The applicant’s essay

On 2 September of year 11 the applicant sent the Teacher an email[7] in which he proposed the topic of his extended essay. It was “Is the rise of Muslim terrorism in the west a result of increase of Salafist ideology or western interference in their home county”[8]. The language used in the email suggests that the applicant chose the topic.
[7] Exhibit R1 Tab 12 Annexure D
[8] Errors in original
The applicant’s nominated topic fits within the first of the six lenses of world studies, namely conflict, peace and security.
The applicant’s father’s evidence to the Tribunal was different. He said that the applicant had indicated to him that the topic was suggested by the Teacher:[9]
[the applicant] wanted to do history of the Middle East. He was always very passionate about history. He later told me he was going to do an essay about Islamic terrorism and western interference. I was concerned that in the current environment this might not be a good idea. [The applicant] said to me “my IB coordinator, who is in charge of the whole IB program in [the School] wants me to do it and [they] said [they] will help”. We talked about how it might be good for his university applications. I was convinced and I let him do it.
[9] Exhibit A1 Tab 4 paragraph 12
We accept that the applicant made the statement to his father described above. We accept that the applicant’s father was concerned about the topic.
We do not accept that it accurately reflects the discussions between the Teacher and the applicant. We accept the Teacher’s evidence, supported by the email, that the topic was chosen by the applicant.
On 12 September of year 11 the Teacher had a discussion with the applicant. The Teacher’s evidence is that the applicant was advised that the proposed topic was too broad and it was suggested that rather than do his extended essay in world studies, he consider doing it in history, and that he address specific issues concerning the Bali Bombing or 9/11.
The applicant’s evidence was that he “never intended”[10] to write a history essay or at least that he was unsure[11] about the field. He declined the Teacher’s suggestions and elected to pursue the extended essay in world studies, on the topic of his choosing.
[10] Transcript of proceedings 22 October 2019 page 24, line 15 and 21
[11] Transcript of proceedings 22 October 2019 page 24, lines 19-20)
The applicant was expected to provide the Teacher with a draft of his extended essay on or around 8 December of year 11.
On 7 December of year 11, the applicant sent an email to the Teacher in which he attached a Google document (the first draft). He contends that the document was an incomplete version of his first draft[12] of the extended essay. The Teacher did not open this document, because it was not in Microsoft Word format.
[12] Exhibit A1 Tab 3 Annexure HB1 pages 53-57
On 8 December of year 11, the Teacher emailed the applicant and asked him to email back an electronic version of the draft essay in Microsoft Word format.[13]
[13] Exhibit R1 Tab 12 Annexure E
According to the Teacher, later that day, the applicant provided a hard copy of the first draft of the extended essay. The Teacher read the essay in hardcopy and annotated it with comments. The Teacher was of the view that the first draft of the essay contained unbalanced views unsupported by evidence on the question of who is responsible for terrorism perpetuated in the name of Islam.[14]
[14] T2ranscript of proceedings page 37 line 42; Transcript of proceedings page 245 lines 13-20).
The Teacher’s further evidence was that on 8 or 9 December of year 11, the teacher met with the applicant and, sometime into the conversation, with his father, who was at the School to pick his son[15], and gave them feedback about the essay. The Teacher advised them that the essay was unacceptable for a number of reasons, including that the applicant had not evaluated and discussed any alternative views relating to the topic in the disciplines of history and philosophy and had only sought to communicate one point of view, and that as a result the extended essay was more an opinion piece than a critical analysis of the topic.
[15] Exhibit R1 Tab 11 paragraphs 36-38
According to the Teacher, the feedback was not well received by either the applicant or his father. The Teacher’s evidence was that the applicant’s father, who was standing over the teacher’s desk, began tapping his fingers on the table as he spoke and was particularly resistant to the Teacher’s comments. The Teacher was surprised and shocked by this response.

According to the Teacher the meeting concluded with the applicant and his father leaving the School, taking with them the hard copy of the extended essay. It is for this reason that neither the Teacher nor the School were able to produce a copy of the first draft of the applicant’s extended essay.
The applicant and his father maintain that there was no such meeting in early December of year 11. The applicant’s evidence is that he did not meet with the Teacher to discuss the first draft. His assumption was that there was no meeting because he had not provided a full draft.[16]
[16] Exhibit A1 Tab 3 Annexure HB1 paragraph 31
The applicant’s father also denied that there had been a meeting in December of year 11 relating to his son’s extended essay. Rather, he says that between 5 and 7 December of year 11, he attended a parent-teacher interview and met with the Teacher. He says the discussions related to his son’s ATAR performance and prospects, but that his son’s extended essay was not discussed.
The applicant’s evidence was that he sent the Teacher a copy by email on 7 December of year 11, following this parent-teacher interview. His father gave evidence that the applicant emailed the essay from the school carpark after the meeting. The applicant attached a copy of the email and the essay to his witness statement.[17]
[17] Pages 51-82 of Annexure 1
The differing evidence about the meeting and the essay is difficult to reconcile and untangle. However, we are satisfied that there was a meeting between the Teacher and the applicant to discuss the first draft because:
(a)there is substantial evidence that students had been advised that drafts were due to week of 8 December of year 11;
(b)the email of 8 December of year 11 suggests that the teacher followed up with the applicant about the submission of his essay draft, and we find it implausible that they would not have followed this up again had he not provided a draft;
(c)the applicant in fact revised the essay; and
(d)although the applicant’s position was initially that he only had two formal discussions with the Teacher about the drafts of the extended essay he had given her, being the meetings that took place on or about 2 February and 14 August of year 12, but under cross examination, the applicant agreed he had had three formal discussions, rather than two as initially contended:[18]
As I stated earlier, I would have discussions informally on most occasions with [the Teacher] about my extended essay. Formally, I submitted three drafts; formally, I’ve had three formal written down meetings that [the Teacher] would take note of, and that’s what we would show the IB.
It is plausible that this meeting was the meeting of 8 or 9 December.
[18] Transcript of proceedings 22 October 2019 page 42, line 26
The applicant attached to his witness statement a copy of the 7 December email and an attachment that is suggested to be the first draft of the essay. We take this to be the document provided to the Teacher on or about 8 December.
The title of the first draft is “Islamic immigration and terrorism: and facts regarding Islamic terrorism by academics and politicians”. The research question was expressed to be “is the rise of Islamic terrorism in the west a result of an increase in muslim immigration or other underlying factors?”[19].
[19] Errors in original
The first draft is very brief. Without the title page and table of contents page it contains less than two pages of substance. The substantive portion of the document is an introduction setting out the two theses which the applicant sought to explore. These were:
(a)the “Correlation between muslim immigration and terrorist attacks”; and
(b)the “Correlation between muslim immigration and western interference”.
The first draft contains the statement that:
The student concludes that an increasing dislike of western interference by muslims and increasing Islamophobia in the west is resulting in a rise of Islamic terrorism in Australia and abroad (Global).
In the below example, the applicant quoted a statement made by a journalist, Andrew Bolt, in support of his thesis that there is a correlation between Muslim immigration and terrorist attacks in Western host countries Muslims have moved to. The applicant wrote[20]:
Andrew Bolt in an article called “Muslim immigration in France opens door to terror” agrees with Ms Kruger saying “this link between immigration policies and terrorism… explains why we are fools not to change our immigration policy to protect ourselves” Mr Bolt is undoubtedly correct, with the current state of affairs something has to give. Decades of western interference in muslim countries has caused (the) anger and contempt many in the west have for immigrants fleeing for reasons that aren’t of their own doing causes misunderstanding and misdirected anger. This correlation with countries that are attacked by Islamic terrorists groups and countries that continue to meddle in Islamic affairs. Countries such as USA, UK, Kenya, France and Australia without fail have destroyed millions of people’s livelihoods and semblance of peace. These same countries have been attacked by muslims whose anger whose anger has been preyed on by terror groups that prey on this anger[21].
[20] Exhibit A1 Tab 3 Annexure HB1 pages 56
[21] Errors in original
What can be drawn from the draft essay is that the applicant considers there to be a correlation between acts of Islamic terrorism in Western countries and acts of Western interference and aggression in Islamic affairs and in Muslim countries. He did not consider that there may be other causes for acts of Islamic terrorism in Western host countries. He also appears to accept, as ‘undoubtedly correct’, an assertion that there is a link between immigration and terrorism, and that immigrants from Muslim countries may be vulnerable to manipulation by terrorist groups who encourage them to perform acts of terror.
The applicant sent an email to the Teacher on 2 February of year 12[22] that contained the second draft of the extended essay.[23] The title of the essay had been changed to: “To what extent is the rise of Islamic Terrorism the result of western interference?”
[22] Exhibit A1 Tab 3 Annexure HB1 page 59
[23] Exhibit A1 Tab 3 Annexure HB1 pages 60 - 82
Shortly after the Teacher received the second draft, the Teacher met with the applicant to discuss its content. The Teacher made the same type of criticisms they communicated on 8 December of year 11. These included the need to narrow the focus of the essay and the need to consider more than one viewpoint.
On 14 August of year 12, the applicant submitted, by email, the final version of his extended essay[24]. The essay was entitled “To what extent is the rise of Islamic Terrorism the result of western interference?”.
[24] Exhibit A1 Tab 3 Annexure HB1 pages 109 - 128
As would be expected, the second essay was a more substantial and polished document than the first draft and the conclusion is more nuanced and reasoned. Broadly, he concludes that:
Over the last three decades, Islamic terror has been attributed to many causes: Western intervention, Muslim immigration and Islam itself. Western intervention causes Islamic terrorism to a considerable extent. Islam cannot be sufficiently blamed for condoning terrorists commit acts of terror as the religion condemns violence. Immigration cannot be responsible as its more of a flow-on effect than a cause, more muslim immigration causes more immigration to the West which then potentially manifests into terrorism but the original cause was not immigration. This mean, other factors are causes of Western intervention that in turn cause terrorism.
We are not able to assess the final essay, which would presumably require a comparison with the essays submitted by his peers, although we do note that it has minimal sources and referencing.
The Teacher marked the extended essay and gave it a predicted grade of C. The Teacher commented on the paper that it was a reasonable attempt at a difficult question. This appears to the Tribunal to be a fair comment.
The Teacher then met with the applicant and held the viva voce discussion of his work. The purpose of the discussion was to explore his understanding of his chosen subject. The Teacher also gave him a copy of the guide “for interpreting the assessment criteria” upon which they had made some notes relating to his essay.[25]
[25] Exhibit A1 Tab 3 Annexure HB1 pages 129 - 133
The extended essay was marked by an external marker and the applicant was given a D grade. The applicant’s extended essay was one mark short of being given a C, the grade the Teacher had predicted he would attain.

The Creativity, Activity and Service Project

According to the Teacher, the CAS is a student-directed program designed to foster qualities aside from academic pursuit. The Teacher explained that educational philosophy holds that creativity activities are important for critical thinking, while a healthy body and caring for others are essential for a student’s development.[26]
[26] Exhibit R1 Tab 11 paragraph 57
Under the CAS program each student was required to undertake a number of projects. Each project had to have at least two of the three required components of creativity, service and activity.[27] Each student was required to complete about 150 hours of work over several projects in order to pass the CAS program.
[27] Exhibit R1 Tab 11 Annexure L page 7 of 13
The applicant provided a document from The International Baccalaureate Organisation[28] that gave some sample projects. These projects could comprise one or more components (creativity, service or activity). The examples given were:
·        Creativity: a student group plans, designs and creates a mural;
·        Activity: Students organise and participate in a sports team including training sessions and matches against other teams;
·        Service: Students set up and conduct tutoring for people in need;
·        Service and activity: Students plan and participate in the planting and maintenance of a garden with members of the local community;
·        Creativity, activity and service: Students rehearse and perform a dance production for a community retirement home.
[28] Exhibit A1 Tab 3 Annexure HB1 page 2
According to the applicant’s father, he and his son had a discussion about the applicant’s CAS projects at the beginning of year 11. During this discussion the applicant said that he wanted to personally take school equipment to the country in which his parents born (the Other Country).[29] According to the applicant’s father, he told his son “you will need to save a bit of money and I will help with the rest”.
[29] Exhibit A1 Tab 4 paragraph 9
By email[30] dated 30 November of year 11, the applicant informed the Teacher that he would undertake three projects in order to complete his CAS requirements. The three projects were:
(a)a school trip to another country (the School trip). This 10-day trip was being undertaken by a number of IB students, who were proposing to travel together and undertake a range of activities whilst overseas. The trip was expected to take place early in year 12;[31]
(b)helping to broadcast a child’s segment at a Muslim radio station during the month of Ramadan; and
(c)providing school equipment for an orphanage in the Other Country. In this regard the proposal stated:
I am planning to undertake a project single-handedly to give …equipment to disadvantaged orphans in [the Other Country]. I have communicated to manufacturers in India and China for quotes, production and shipping. We plan to have equipment shipped to Dubai on Boxing Day and have them sent and given as soon as possible.
[30] Exhibit A1 Tab 3 Annexure HB1 page 24
[31] Exhibit R1 Tab 12 Annexure P
The phrase in the email “have them sent and given as soon as possible” does not suggest the applicant intended to take the school equipment to the orphanage himself. Rather, it seems, from reading the email, that third parties would be responsible for delivering the school equipment to the orphanage the applicant wanted to assist.
On 1 December of year 11, the Teacher wrote[32] to the applicant and congratulated him on his choice of activities. The Teacher also asked him to upload details of his proposal into a cloud-based management system, used by IB students to contain details of their CAS programs, known as Managebac.
[32] Exhibit A1 Tab 3 paragraph 26
On 31 December of year 11, the applicant paid a $99 deposit for the School trip. He made no more payments towards the trip, although he did continue to support the trip by working at a fundraising event (a sausage sizzle) and he remained in the group email that had been set up to allow communication for those who were intending to take the trip and others involved in its planning.

Did the applicant have to travel to the Other Country to complete his CAS project?

The applicant’s version of events

The applicant concedes that he did not intend to travel to the Other Country to complete the CAS project prior to the summer holidays between years 11 and 12. His evidence was that, as he considered his options over the holidays, travelling to the Other Country became a possibility. In response to a question in cross examination, the applicant said:[33]
So you’re saying you formed an intention to go to [the Other Country] in the summer holidays?---I had an anticipation that because at this point I dropped interest in the [school trip] project... So I was anticipating - I was anticipating when I get back to school, I’d have to have a conversation with [the Teacher] about whether I had to go to [the Other Country] and since I only put creativity and service as my - on here, I need - I was - I was pretty anxious that the action part would actually include me having to go to [the Other Country] for this project.
[33] Transcript of proceedings 22 October 2019 page 81 line 26
The applicant alleges that in early year 12, shortly after term began, he had a discussion with the Teacher that related to his extended essay and his CAS project relating to the Other Country.
The applicant says that during the discussion he was effectively told that he would have to travel to the Other Country in order to complete his CAS requirements. He alleges a conversation along the following lines took place with the Teacher:[34]
Applicant: The equipment has been delivered to [the Other Country]. Is it possible for someone in [the Other Country] to handover the equipment to the school so I do not have to travel there?
The Teacher: You need to do every part of the project yourself for CAS. You would need to deliver the equipment to the school. If you do not do this, I do not think that you will have enough hours for CAS.
[34] Exhibit A1 Tab 3 paragraph 36
The Teacher denies that they said the words alleged.
For his part, the applicant’s father initially did not want his son to travel to the Other Country because of the costs involved and the need for his son to concentrate on his year 12 work:[35]
the main reason you didn’t want him to go?---Because the two thing I just say. One was he want to concentrate on his year 12; and the second was the cost really. And year 12 was doing IB and ATAR is huge work - is really huge work.
[35] Transcript of proceeding 23 October 2019 page 197 line 16
The father’s concerns about the costs appear well founded. The cost of the trip was approximately $2,700. The ticket to a transit country[36] cost approximately $1,700 and a further $1,000 was set aside for expenses.[37] The school equipment cost $1,800 and its shipment to the Other Country cost a further $500; a total of $2,300.[38] This means the cost of delivering the school equipment exceeded its value.
[36] Exhibit A1 Tab 4 Annexure page 17
[37] Exhibit A1 Tab 3 Annexure HB1 page 90
[38] Exhibit A1 Tab 3 Annexure HB1 page 90
According to the applicant’s father he had a discussion with the applicant in early February of year 12, during which he requested his son “ask the school if it is okay for someone else to hand over the equipment instead of him going to [the Other Country].”[39] His son replied by telling him “I asked at school and they said that I have to go to … hand over the equipment myself.”[40]
[39] Exhibit A1 Tab 4 paragraph 11
[40] Exhibit A1 Tab 4 paragraph 11
On 21 February of year 12, the Teacher made a comment on Managebac to the effect “I need to see some sort of physical activity.”
The applicant by implication suggests he interpreted this comment as some sort of direction that he had to travel to the Other Country.
In his first witness statement of 16 August 2019,[41] the applicant said:
Around 21 February [of year 12], [the Teacher] make a comment on Managebac to the effect of “I need to see some sort of physical activity”.
I talked to my parents about this. They were very concerned about me travelling unaccompanied from Australia. This was because I was a young, Muslim and [Other Country] male travelling to [the Other Country] via [a transit country]. We knew of some … friends who had been questioned authorities at the airport in Australia when they had travelled unaccompanied to [the Other Country]. I had heard from within my community about people stopped questioned at the airport by authorities. My parents could not come with me because of the cost. My parents told me to ask school for a letter to explain why I was travelling.
[41] Exhibit A1 Tab 3 paragraphs 37 & 38
There is nothing in the Managebac statement that suggests the Teacher directed the applicant to travel to the Other Country, as opposed to undertaking some form of physical activity in the Territory.
The applicant endeavoured to try and clarify his position in his second witness statement, dated 4 October 2019,[42] in which he replied to two aspects of the Teacher’s witness statement.[43] In this statement the applicant referred to a verbal conversation and said that:
the Teacher’s statements were to the effect that [the Teacher] was unwilling to approve my CAS unless the project included “physical activity”. [The Teacher] suggested that as I chose to do a [Other Country]-based project, I should complete the requirements for the project. the Teacher subsequently posted a comment for “physical activity” in my Managebac. I felt I had little choice but to organise my travel and see the project through to the end. I also have a passion for donating to the [orphanage] and was not upset at having to travel for this purpose.
[42] Exhibit A1 Tab 8
[43] Exhibit R1 Tab 11
The applicant’s further explanation does not clarify why he believed that he could not undertake the “activity” requirement in the ACT as opposed to the Other Country.
The document[44] provided by the International Baccalaureate Organisation clearly provides that the applicant only needed to undertake some sort of sporting endeavour to satisfy the physical activity requirement of the CAS.
[44] Exhibit A1 Tab 3 Annexure HB1 page 2
After this conversation, the applicant says that he had a further discussion with the Teacher about his trip to the Other Country, during which he said words to the effect:[45]
If I have to travel to [the Other Country] for CAS, my parents want me to have a letter from the school to say that I am a student of [the School] going to [the Other Country] for the IB course. My parents are worried that I will be questioned at the airport. Young, unaccompanied Muslim males attract attention at the airport because of the current political environment.
[45] Exhibit A1 Tab 3 page 7
The applicant’s clear evidence may be summarised briefly. As at the beginning of year 12, he did not want to travel to the Other Country to hand over the school equipment. He considered he was being forced to go by the Teacher, and if he did not go he would not pass the CAS program and would therefore not earn the IB diploma.
The applicant’s father’s evidence is similarly unequivocal. He did not want his son to go to the Other Country because of the cost and the interruption to his son’s year 12 studies, but if he had to go the applicant’s father wanted him to have a letter from the School supporting his travel.[46]
[46] Transcript of proceedings 23 October 2019 page 196, line 30

The applicant’s father’s evidence was also that he was not concerned about his son travelling to the Other Country by himself as “he had been there many times, knew the place and we had family there”[47]. His principal concern was how his son would be treated by Australian Border Force personnel, as he “…had heard stories about young kids travelling without the parents to places like [the Other Country] being stopped at the airport. This was my only worry.”[48]
[47] Exhibit A1 Tab 4 paragraph 11
[48] Exhibit A1 Tab 4 paragraph 11
In those circumstances the Tribunal finds it surprising that the applicant’s parents did not contact the School to clarify whether their son in fact had to travel to the Other Country to complete the CAS project. Travel to the Other Country would necessarily involve:
(a)significant expense;
(b)interruption to their son’s year 12 studies; and
(c)their son being potentially treated in a negative manner by Australian Border Force personnel.
It is also surprising that the applicant’s parents did not contact the school to find out whether the school would provide him with a supportive letter.
On 2 April of year 12, the applicant left Australia and went to the Other Country. His evidence is that during his trip he visited an orphanage and donated the school equipment he had earlier purchased.
On 18 April of year 12, the applicant returned to Australia.

The teacher’s version of events relating to the trip to the School and the trip to the Other Country

The Teacher’s evidence is that prior to mid-March of year 12, the Teacher believed the applicant planned to participate in the School trip. The Teacher was unaware of the applicant having any intention to travel to the Other Country.
Through January, February and early March of year 12 the applicant continued to be involved in preparation for the School trip. He was included in group emails and participated in fundraising. This continued until at least on 22 March of year 12, when, at a sausage sizzle in aid of the trip, the applicant told the Teacher that he no longer planned to travel with the School.
The Teacher was surprised by this information, particularly as no replacement project had been uploaded to Managebac.
The Teacher subsequently learned the applicant intended to travel to a transit country where he would be met by a family member who would travel with him to the Other Country so that he could complete the CAS project, which included giving school equipment to orphanages.
The teacher denies ever having told the applicant that he had to go to the Other Country to complete the CAS program:[49]
There was no requirement that the applicant – or any of the students, including those who elected to participate in the [School trip] – travel overseas in order to complete the CAS program. I did not tell the applicant that he was required to do so – nor any other student, for that matter. Most students completed their completed their CAS projects at the School.
It would have been acceptable for the applicant to count the hours he spent organising the [the Other Country] project towards his CAS program and complete the rest of his CAS project at the School, as other students did and had previously.
[49] Exhibit R1 Tab 11 paragraphs 76-78
The Teacher recalls being asked by the applicant for a letter from the School supporting his travel to the Other Country for the CAS project. He advised that his father had concerns that if the applicant did not have such a letter, he would likely run into difficulty with immigration officials at the airport.
The Teacher declined to provide the applicant a letter endorsing the trip or suggesting that his travel was sanctioned by the School, but they did offer to supply him with a letter confirming that he was a student at the School. The applicant declined that offer.
According to the applicant he again spoke to the Teacher shortly before he left Australia on 2 April of year 12. At this time, he again was advised that the School would not give him a letter. According to the applicant the Teacher gave him their personal phone number and said words to the effect “I will vouch for you if there is any problem at the airport.”
At the hearing the Teacher provided a summary of another student’s CAS undertakings[50], all of which were completed in the Territory. These events included choir rehearsals, making gifts for refugees, learning to cook, singing as part of church mass, singing lessons and practice, public speaking, swimming and walking around Canberra. Clearly, this student was able to complete the activity portion of the CAS by undertaking normal community type activities and without leaving the Territory and without incurring great expense.

The Other Country

[50] Exhibit R1 Tab 11 Annexure N

The Smart Traveller advice as at 27 January of year 12[51], was that “we advise you not to travel to any part of [the Other Country] because of armed conflict, the ongoing very high threat of terrorist attack and kidnapping, and dangerous levels of violent crime”.
[51] Exhibit R7
The advice also addressed conditions in the specific area of the Other Country the applicant intended to visit. Although that area was not a dangerous as some other parts of the country, the advice stated “there is an ongoing very high threat of kidnapping in all parts of the Other Country”, specifically including the area the applicant wished to travel, and that “[k]idnappers may be motivated by crime or terrorism”. The advice continued “Foreigners, including those of [local] descent, face a continuing very high threat of kidnapping in the [Other Country]. A large number of foreigners have been kidnapped in the [Other Country] in recent years”.

Factual conclusions relating to the trip to the Other Country

We do not accept the applicant’s assertion that the Teacher told him that he would need to travel to the Other Country to deliver the school equipment to the orphanage himself as part of the CAS program.
We do not accept the applicant’s evidence in this regard for the following reasons:
(a)We prefer he Teacher’s evidence on the subject. The Teacher’s evidence was credible, internally consistent and consistent with the documentary evidence.
(b)The CAS outline provided by the applicant by email on 30 November of year 11 made no reference to the applicant having to travel to the Other Country in order to complete his project.
(c)We again note the IB Organisation example of an activity event:
Students organise and participate in a sports team including training sessions and matches against other teams.
(d)We are satisfied that it was the case that all of the School’s IB students could have completed their CAS requirements, including the activity portion, in the Territory.
(e)We find it to be inherently unlikely that a school would require any student to travel internationally at all to gain a “physical activity credit” for his or her IB diploma, especially given there were many alternative means to gain the credit.
(f)We find it inherently unlikely that the Teacher would have directed the applicant to travel to the Other Country at the time when the Australian Government’s Smart Traveller website advised Australians not to travel to the Other Country.
(g)In any case, it is implausible that the School, or any school, would require a student to spend thousands of dollars in order to complete a CAS program that did not gain a student any marks towards his or her IB diploma.

The applicant completes the CAS program

On 25 July of year 12, the applicant submitted, by email to the Teacher, two reflections relating to his CAS activities. One related to his trip to the Other Country and the other related to his sporting activity.
On 4 September of year 12, the applicant uploaded two CAS reflections to Managebac.
On 20 September of year 12 his CAS was marked as being complete.

Actions taken by the School after learning the applicant intended to travel to the Other Country

Much of this case revolves around the appropriateness of the steps the School took after becoming aware of the applicant’s plans to travel to the Other Country.
Shortly after being asked for the comfort letter by the applicant, the Teacher approached the Principal in order to highlight concerns about the applicant’s his plans.
The Principal’s evidence was that the Teacher highlighted five areas of concern, which can be summarised as:
(a)the applicant’s decision to pull out of the School trip only a few weeks before it commenced;
(b)the applicant’s decision to replace the School trip with solo travel to the Other Country, without having documented on Managebac any details of his proposed travel;
(c)the applicant’s request to be given a letter from the School endorsing his travel as being supported or instigated by the School;
(d)the applicant’s choice of extended essay topic, which the Teacher advised the Principal was written in an unbalanced manner containing some concerning statements of opinion;
(e)the change in the applicant’s appearance and disposition. According to the Principal, the Teacher advised that the applicant’s appearance had recently changed and that he had become somewhat withdrawn.[52]
[52] Exhibit R1 Tab 12 paragraph 22 E
The Principal was concerned that the series of events described by the Teacher was highly unusual.[53]
[53] Exhibit R1 Tab 12 paragraph 24
The Principal was also alarmed at the prospect of the applicant travelling to the Other Country on his own, given the applicant’s age, the situation in the Other Country at the time and the travel warnings issued by the Australian Government.
In March of year 12, the ACT Education Directorate had not issued any guidance to schools in the Territory about responding to concerns about religious extremism. The Principal acted on the concerns raised by the Teacher by consulting with other key staff and management about what to do.
The Principal ultimately took the decision, on 22 March of year 12, to report the information to the Hotline “so that the relevant authorities having the appropriate expertise could assess it.”[54]
[54] Exhibit R1 Tab 12 paragraph 26
The Principal had to go to the Australian Government’s National Security website ( to lodge the report. The website gives those considering making a report some advice.[55] In part it states:
The National Security Hotline (NSH) 1800 124 400 is a vital component of Australia’s national counter-terrorism efforts.
The NSH was established on 27 December 2002, and has since received more than 300,000 calls, faxes, letters and emails. A significant number of reports to the NSH have contributed to investigations or initiated new ones.
The nature of terrorism is changing, with callers providing information on the use of websites or social media platforms promoting violent extremist ideology, suspicious travel planning, reports from people concerned that someone they know is becoming radicalised towards violent extremism.
Even if you think it’s properly nothing, the smallest piece of information can be valuable. If something doesn’t add up, speak up by calling the National Security Hotline on 1800 124 400.
[55] Exhibit R3
On 23 March of year 12, the Principal sent an email[56] to the Hotline[57] reporting the school’s concerns about the applicant. In that email the Principal made the following comments about the applicant:
(a)     He was planning to attend [the School trip] with peers but has unexpectedly withdrawn within the last week.
(b)     Instead he is travelling to [the Other Country] on a self-generated trip allegedly to take [school] equipment to an orphanage where he says he will be volunteering.
(c)     While there, he is supposed to be going to [the Transit Country] to collect his grandmother after surgery and bring her back to [the Other Country]. As this boy is only 17 we are concerned about his undertaking such an important job and what could it really all be about.
(d)     He requested a letter from the school to state that this is a school sanctioned trip (which it is not) to use at immigration on his re-entry to Australia. We have no information about this proposal and can’t and won’t be providing this letter.
(e)     At the end of last year he submitted an essay which we did not accept as (a) valid assessment because it included radical Muslim ideology. At the time of submission we counselled him about the task being unacceptable because it did not meet the guidelines for the task. Now we are concerned that it may be part of a much bigger picture.
(f)      We did bring this essay to the attention of [the applicant’s] father and we suspect that he may have been involved in writing the essay.
(g)     We have identified that his behaviour has changed over the last few months and we believe that could (sic) be concerns about his behaviour.
[56] Exhibit R1 Tab 12 Annexure D
[57] Exhibit R1 Tab 12 Annexure D. Please note the email to the Hotline contained bullet points. For the sake of clarity and convenience we have changed the bullet points to letters.
The concerns articulated in the email were similar but not identical to those of the Teacher.
A little over an hour after sending the email to the National Security Hotline, the Principal received a confirmatory email in reply.[58]
[58] Exhibit R1 Tab 12 Annexure D
On 24 March of year 12, two AFP officers went to the School and requested a copy of the extended essay which was referred to in the email to the Hotline on the previous day, 23 March of year 12. The School did not have a copy of the applicant’s first draft of his extended essay, so it provided a copy of the second draft in its place. The AFP officers indicated that the matter may, or may not, be pursued further.

The events at Sydney Airport on 2 April and 19 April of year 12

On 2 April of year 12 the applicant was taken by his parents to Sydney airport in order commence his travel to the Other Country. The first flight was scheduled to depart at 2:05pm.[59] The applicant’s parents stayed with him as he checked his baggage in at the check-in station and remained with him until he entered the customs area, where only passengers were allowed to enter. The applicant was reassured by his parents who said that they would remain at café in the airport until after his plane departed.
[59] Exhibit A1 Tab 4 Annexure page 17
The applicant went to the E-gate to scan his passport. The machine appeared not to read the passport. He was then approached by members of the Australian Border Force, who the applicant believed, appeared to be waiting for him. They took him to an interview room.
The Australian Border Force personnel seized all his electronic devices (mobile phones, cameras and laptops), which they then searched. The applicant’s checked baggage was retrieved, and all his baggage was searched and inspected.
The applicant was interrogated for approximately two and a half hours. During this time, he was unable to contact his parents who were waiting for him to depart.
The applicant was questioned by four officers. According to the applicant he was told words to the effect “a report has been made to the National Security Hotline about you and your name has been placed on the watch list.”[60] The officers refused to tell the applicant who had made the report or what had been reported.
[60] Exhibit A1 Tab paragraph 44
Australian Border Force asked the applicant about his studies, political opinions, faith and family.
When the applicant asked why he was being questioned one officer gave an answer[61] to the effect “when kids go to troubled areas in the world, we want to make sure that their account matches up with their parents’ accounts and those of everyone else, to ensure there is no radical activity”.
[61] Exhibit A1 Tab 3 paragraph 45
In evidence the applicant was asked whether the Australian Border Force officers mentioned the Hotline. The applicant confirmed they did not, but that his subsequent research had revealed that it could be one way that the Australian Border Force could have become aware of his circumstances. In his evidence to the Tribunal, the applicant said:[62]
So was mention made of the hotline?---To me by the border force?
That’s right?---No. I was told that I was reported and put on a watch list. I was told I was put on a watch list and I was told that I was - I was told that I was put on a watch list because of suspicion of where I’m going. I had suspicion that I was reported by someone. I had suspicion I was reported by someone or something that was - and I went around, I researched as to how that could come about and that brought me to information on reporting procedures and security procedures.
[62] Transcript of proceedings 22 October 2019 page 48-49 line 39
The applicant found the questioning of the Australian Border Force officers intimidating, stressful and traumatic.
The applicant was subsequently allowed to catch the flight, although it had to be delayed by 30 minutes so that he could board it.
On 18 April of year 12, the applicant returned to Sydney Airport. Upon arrival he was again questioned by Australian Border Force officers. They again searched his belongings and questioned him for approximately two and a half hours, during which time he was unable to contact his parents who were at the airport waiting for him.
During the course of this process the applicant was frightened, tired and very wary of the officers.

The involvement of the Australian Federal Police

On 16 October of year 12, the Australia Federal Police (AFP) went to the applicant’s home and spoke to his parents. The police officers told the applicant’s parents that they were investigating the content of his extended essay and the CAS.
Ultimately the AFP agreed to postpone the interview with the applicant until after he completed his final exams.
The applicant was very shocked to find that he was under some form of investigation.
The fact of the investigation weighed heavily upon him between 16 October of year 12 and 31 January of the following year, the date the AFP returned to complete the interview.

Predicted and final grades

A student’s predicted IB grade is important. It enables the student to approach universities at a time when the students’ IB results are not known and to seek a place based upon what he or she is reasonably expected to achieve.
The applicant received a predicted IB grade of 24 points[63] (an ATAR of 69.05). 24 is the lowest passing score attainable under the IB.
[63] Exhibit R1 Tab 11 paragraph 86
This predicted grade was insufficient for the applicant to receive a first-round offer from any university in Canberra. However, in the second and third rounds the applicant received offers to study at two other universities.
The IB Diploma results were published in January.
The applicant did better than predicted by his teachers and received a final grade of 29 points (an ATAR of 82.15).[64]
[64] Exhibit R1 Tab 11 paragraph 88
As mentioned above, the applicant received a D grade for his extended essay. He missed getting the C grade predicted by the Teacher by one mark.
The applicant also received a D grade for his TOK. This grade was higher than the E grade predicted by his TOK teachers.[65]
[65] Exhibit R1 Tab 11 paragraph 87
As a consequence of receiving D grades for the extended essay and TOK the applicant did not gain any of the three bonus points potentially available for the CORE subjects.
Subsequently, the applicant’s TOK and extended essay were re-marked, with no change to the marks the applicant was initially given.[66]
[66] Exhibit R1 Tab 11 Annexure T
The applicant’s father arranged for an international marker to re-mark the applicant’s TOK. The result given by the international marker was 6/10 as opposed to the 4/10 the applicant was awarded. The international marker could not consider the applicant’s oral presentation because it had not been recorded.
The applicant feels aggrieved and notes:
A mark of 6/10 for my TOK rather than 4/10, as per the International marker’s opinion would have had a big impact on my final grade as it meant I would have received a grade of a high C rather than D. Additionally, if my predicted grade had not been used to mark my EE, I would have received a grade of C rather than D for my EE. A grade of C for both my TOK and EE would have given me one bonus point (as per the EE and TOK matrix exhibited at pages 138 – 141 of HB-1) and would have allowed me to receive a first round rather than second or third round offer for university admission.

According to the applicant’s teachers, the applicant’s actual IB grades were in line with, or exceeded, their predictions for what he would achieve[67] in each of their disciplines.

The effect of the School’s actions on the applicant

[67] Exhibit R1 paragraph 89 (a) and Tab 11 Annexure S

The applicant contends the School’s decision to report him to the National Hotline has significantly impacted him in a number of ways.
Physically he has been experiencing symptoms of stress, sleep and hair loss and mentally, his self-confidence has been affected.
Some of his relationships with teachers, friends and members of the his community have suffered after it became known that he was on a watch list.
The applicant feels less confident in expressing his opinions at university where his course requires that he study terrorism, religion and politics. He is loath to express his opinions because he fears what would happen should he do so.
The applicant has difficulties in trusting others.
The applicant is also concerned that his name was placed on a watch list and he does not know how long it will remain there and what impact it may have for his future.

The complaint to the Human Rights Commission and to ACAT

The applicant believes that the detriments he has suffered are the consequence of the School discriminating against him because of his race or religion.
On 22 February 2018, the applicant made a complaint to the ACT Human Rights Commission, relating to his experience at the School. The applicant subsequently asked the ACT Human Rights Commission to refer the matter to ACAT pursuant to section 53A of the Human Rights Commission Act 2005 (HRC Act).
On 5 February 2019, the applicant’s solicitors filed a statement of facts, issues and contentions, in which they alleged the School treated him unfavourably because of his race and religion and, for amongst other reasons, by making the report to the Hotline that included inaccurate, false and misleading statements about the applicant.

Orders sought by the applicant

The applicant seeks orders that the respondent:
(a)require the School to send him a letter of apology;
(b)develop and implement policies and procedures in relation to the reporting of students to the Hotline; and
(c)pay damages to the applicant for distress and humiliation.
It should be noted that since the reporting of the applicant to the Hotline, the respondent now adheres to the guidance material on responding to the concerns of violent extremism developed by the Commonwealth Government and disseminated to schools in the ACT by the Education Directorate.[68]

The law

[68] Exhibit R1 Tab 12 paragraph 25and Annexure C

The applicant initially brought these proceedings based on allegations of direct and indirect discrimination. He no longer presses his claim for indirect discrimination[69] and consequently the Tribunal will only address the issue of whether the applicant was directly discriminated against by the School.
[69] Applicant’s closing submissions paragraph 24
The statutory starting point is the Discrimination Act 1991 (the Discrimination Act).
Section 8(2) of the Discrimination Act gives the meaning of ‘direct discrimination’. Sections 8 states, relevantly:
8 Meaning of discrimination
(1) For this Act, discrimination occurs when a person discriminates either directly or indirectly, or both, against someone else.
(2) For this section, a person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes.
Sections 7(r) and (u) of the Discrimination Act set out the protected attributes relevant to this case, being race and religious conviction. The relevant paragraphs provide:
7 Protected attributes
(1) This Act applies to discrimination on the ground of any of the following attributes (a protected attribute):
(r) race
…
(u) religious conviction;
Section 18(2) of the Discrimination Act sets out when it is unlawful for an educational authority to discriminate against a person and provides as follows:
18 Education
(2) It is unlawful for an educational authority to discriminate against a student—
(a)by denying the student access, or limiting the student’s access, to any benefit provided by the authority; or
(c)by subjecting the student to any other detriment.
Section 53A of the Human Rights Commission Act 2005 (the HRCA) gives the Human Rights Commission the power to refer proceedings to ACAT.
Section 53CA of the HRCA provides a person in the position of the applicant with a rebuttable presumption that acts in his favour:
53CA Onus of establishing complaint about discrimination etc
(1)This section applies to a discrimination complaint, referred to the ACAT under this division, about discrimination by a person against another person by—
(a)treating, or proposing to treat, the other person unfavourably because of a protected attribute of the other person (direct discrimination); or
(b)….
(2)It is a rebuttable presumption that discrimination has occurred if the complainant—
(a)establishes that—
(i)for a complaint about direct discrimination—the treatment or proposed treatment is unfavourable; and
(ii)…
(b)presents evidence that would enable the ACAT to decide, in the absence of any other explanation—
(i)for a complaint about direct discrimination—that the treatment or proposed treatment is because of a protected attribute of the other person; or
(ii)…
(3)The presumption under subsection (2) is rebutted if the person complained about establishes that—
(a)for a complaint about direct discrimination—the treatment is not because of a protected attribute of the other person;
Note The onus of establishing an exception or exemption to discrimination is on the person seeking to rely on it (see Discrimination Act 1991, s 70).
For the purposes of this matter, the presumption would work in such a way that:
(a)if the applicant establishes that the acts complained of were unfavourable; and
(b)he presents evidence that would enable ACAT to decide, in the absence of any other explanation, that those acts were because of his race or religion;
then the onus would shift to the respondent to establish that the unfavourable treatment was not because of a protected attribute.
Section 53E of the HRCA sets out that orders that the Tribunal may make if it is satisfied that the respondent engaged in an unlawful act, and the factors to be considered in making any orders. It provides:
Kinds of orders—unlawful acts under the Discrimination Act
(1)     This section applies if—
(a)the commission refers a complaint to the ACAT under this division; and
(b)the ACAT is satisfied that the person complained about engaged in an unlawful act.
(2)     The ACAT must make 1 or more of the following orders:
(a)that the person complained about not repeat or continue the unlawful act;
(b)that the person complained about perform a stated reasonable act to redress any loss or damage suffered by a person because of the unlawful act;
(c)unless the complaint has been dealt with as a representative complaint—that the person complained about pay to a person a stated amount by way of compensation for any loss or damage suffered by the person because of the unlawful act.
(3)     In making an order under subsection (2) (c), the ACAT must consider—
(a)the person’s right to equality before the law and the impact of the discrimination on the enjoyment of that right; and
(b)the inherent dignity of all people and the impact of the discrimination on the person’s dignity; and
(c)the public interest in ensuring an appropriate balance between the right to equal and effective protection against discrimination and equality before the law without distinction or discrimination and other human rights; and
(d)the nature of the discrimination; and
(e)any mitigating factors.
It follows, that in order to succeed in his claim under section 8 of the Discrimination Act, the applicant must:
(a)prove that he has one or more of the protected attributes provided for in section 7 of the Discrimination Act;
(b)prove that he was treated unfavourably by the School;
(c)prove that this unfavourable treatment limited or denied him access to any benefit provided by the School or subjected him to any detriment; and
(d)present some evidence that the unfavourable treatment occurred because of his race and/or religion, after which applicant may also be assisted by the rebuttable presumption contained in section 53CA(2) of the HRCA.

The protected attributes

The applicant contends, and it is not disputed, that he has the protected attributes of race, being that his parents were born in the Other Country, and religious conviction, being that he is an adherent of the Muslim faith.

The applicant’s allegations as to the nature of the three forms of direct discrimination he suffered

The applicant alleges that the following actions taken by the School amount to direct discrimination against him based of his protected attributes[70]:
(a)Reporting the applicant to the Hotline.
(b)Providing erroneous information about the applicant to the Hotline, notwithstanding that the School’s staff knew that such information was not correct.
(c)Singling out and humiliating the applicant in front of his classmates by associating his [Other Country] race and Muslim religion with acts of terrorism and bias against the West.
[70] Applicant’s submissions of 4 October 2019 paragraph 18
We will consider each allegation in turn.

Ground 1: Reporting the applicant to the National Security Hotline

To succeed in his claim, the applicant must show either that the School treated him unfavourably by limiting or denying him access to any benefit provided by the School or subjecting him to a detriment because of his race or religion.
There is no evidence the applicant was denied access to any benefit provided by the School and none is urged by the applicant.
The unfavourable treatment alleged by the applicant under section 8(2) of the Discrimination Act and the detriment alleged under section 18 of the Discrimination Act is the same act; reporting the applicant to the Hotline.
It is not disputed that the School reported the applicant to the Hotline.
The issue for the Tribunal is whether in all the circumstances the act of reporting the applicant to the Hotline amounts to unfavourable treatment that subjected the applicant to a detriment and, if so, whether he was reported because of his race and/or religion.

What is ‘unfavourable treatment’?

The Discrimination Act does not define ‘unfavourably’ or ‘unfavourable treatment’, but a body of case law has developed which holds that the term encompasses acts or omissions which result in some detriment, being loss, damage or injury.[71]
[71] Cooley v Australian National University [2007] ACTDT 2 at [44]
The test is not a high one, and nor does it call for a comparison between persons with or without the protected attribute. In Prezzi v the Discrimination Commissioner (affirmed by the Federal Court in Edgely v Federal Capital Press of Australia Pty Ltd [2001] FCA 379 at [54]- [57]) the then Discrimination Tribunal said that:
The ACT Discrimination Act ... does not invite a comparison between the way in which a person who has a particular attribute is treated compared with a person without that attribute or who has a different attribute. All that is required is an examination of the treatment accorded the aggrieved person or the conditions upon which the aggrieved person is or is proposed to be dealt with. If the consequence for the aggrieved person of the treatment is unfavourable to that person, or if the conditions imposed or proposed would disadvantage that person there is discrimination where the treatment is given, or the condition is imposed because of the relevant attribute possessed by the aggrieved person. [45]
In other words, in considering whether an action is unfavourable, it is necessary to examine the treatment accorded to the accused person and consider whether the consequence is unfavourable to that person, in the sense of causing the person loss, damage or injury. There must also be a causative link between the actions of the accused person, and the loss, damage or injury.

Was the applicant treated unfavourably by the School when it reported him to the Hotline?

It appears to us that the substantial reasons why the applicant was reported to the Hotline was because of his different behaviour prior to the trip to the Other Country and the unusual circumstances surrounding the trip.
We are satisfied that the report to the Hotline simply set-out the Principal’s concerns.
While the report does not directly refer to, or state, the nature of the applicant’s race or religion, it does assert that the essay contained ‘radical Muslim ideology’.
In counsel for the respondent’s submission, which we accept, it is important to consider the area of public life in which the discrimination is alleged, in this case education.
The School had responsibilities to the applicant and to the other children at the School. In the ZG v Director-General, NSW Department of Education and Training [2006] NSWADT 344, it was held at [69]:
The role of a teacher is a challenging one. It is different to that of a careful parent: New South Wales v Lepore; Samin v Queensland; Rich v Queensland [2003] HCA 4. Amongst other things, the Teachers responsibilities are to all the children in the class/school. In exercising these responsibilities, a teacher is called upon to implement a growing number of policies which reflect the concerns of the community, the law, and evolving concepts of best practice in teaching.
Those responsibilities required the Principal to make a judgement call that involved weighing obligations.
Presuming the allegations contained in the Principal’s email of 23 March of year 12 to be substantially correct (a subject we will return to when considering the applicant’s second allegation of direct discrimination), we can understand the Principal’s concerns about the safety of the applicant that led to the report to the Hotline.
The Principal acted on the advice of the Teacher. The Principal’s concerns were based on the information given by the Teacher. The Principal took steps considered appropriate to meet the School’s duties to the applicant having regard to that information.
It was reasonable for the Principal to give due regard to the information provided by the Teacher. The Teacher worked with young people. The Teacher saw the applicant on a regular basis. The Teacher considered the applicant’s behaviour had changed. This changed behaviour, considered together with the applicant’s insistence that he travel to the Other Country, by himself, at short notice, in his final year of schooling, in circumstances where he did not have to leave the Territory for any legitimate educational reason, and where the Other Country was subject of a DFAT travel warning, was a sound basis for concern. In the circumstances we do not think it surprising or inappropriate for the Teacher to advise the Principal of these concerns, or for the Principal to act on them.
That said, the mere fact that the Teacher and Principal were well-intentioned does not absolve them of liability for discriminatory conduct. The unconscious nature of the discrimination was a key part of the applicant’s case was the subject of Dr Jones’ evidence. The question, therefore, is not the motivation of the parties, but whether, considered in context, the complained of actions can properly be called ’unfavourable treatment’ within the meaning of that term in section 8.
We are not satisfied that a School making a legitimate, soundly based report about a student whose behaviour has caused them concern to an authority that is equipped to assess it is unfavourable treatment of that student. We are not satisfied that action, alone, can cause a student loss or damage, or that it did so in this case. Rather, it is an appropriate precautionary action taken by in an institution that has a duty of care to the school community and to the student, designed to ensure that that duty is satisfied by someone better placed to assess any risks.
Accordingly, we do not believe that reporting the applicant to the Hotline based on points (a) – (g) in the Principal’s email amounts to unfavourable treatment.
As a consequence, we dismiss the applicant’s claim for discrimination on this ground on the basis that he has not been subjected to unfavourable treatment by the Teacher or the School as required by section 8(2) or a detriment as required by section 18 of the Discrimination Act.

The causal connection between the report and the unfavourable treatment

The applicant contends that even if the act of reporting him to the Hotline was not unfavourable treatment, his treatment by the AFP and Australian Border Force (ABF) amounted to unfavourable treatment for which the school should be responsible.
To succeed on this ground, the applicant must establish a causal connection between the report to the Hotline and that treatment.
The Hotline has received more than 300,000 reports.[72]
[72] Exhibit R3
The Hotline no doubt receives a wide variety of reports from the public, institutions and other sources. Some of those reports will be of such a trivial and irrelevant nature that they require no further investigation. Other reports will be of a nature and seriousness that require an immediate and significant response. Many will lie somewhere in between. Where along that continuum a report lies will determine the response, if any, taken by the AFP, ABF personnel, or others.
On receiving the School’s report relating to the applicant, those operating the Hotline had a range of potential responses to the concerns being reported by the Principal. The Principal is unlikely to have known the full extent of those potential responses, and certainly could not have known what steps the authorities would take in response to the report. They may have, for example looked at the report and supporting documents and decided to do nothing, or looked at the material and decided to initiate enquiries.
In this case, after receiving the report, the AFP decided to visit the School, discuss the situation with the Principal and take a copy of the second draft of applicant’s extended essay. We are satisfied that the AFP made their own decision to undertake this course of action.
Having informed themselves of the facts, on 27 March of year 12, the AFP obtained a ‘border alert’[73] for the applicant. Hence, the applicant was detained for some hours at the airport, before being allowed to leave the country. The border alert remained in place and he was also questioned on his return.[74]
[73] Tender Bundle 21 October 2019–AFP case note: 151953722 page 1
[74] Tender Bundle 21 October 2019–AFP case note: 151953722 page 2
No doubt being singled out and having his bags searched and being interviewed on two occasions was an unpleasant experience for the applicant, and one which he would have preferred to avoid. However, this was the action of the ABF. The School’s contact on 23 and 24 March of year 12 was with the Hotline and the AFP. The School had no knowledge that a third organisation, the ABF, would become involved after it made the report.
The School could not have known of the ABF or the AFP’s intention to maintain the alert placed on the applicant for his return on 18 April of year 12, because that decision was not made until after the applicant was interviewed by the authorities on 2 April of year 12.[75]
[75] Tender Bundle 21 October 2019–AFP case note: 151953722 page 2
We think the decision made by the AFP for the authorities to interview the applicant, as he left and returned to Australia, is too remote from the School’s decision to report the applicant to the Hotline, for the School to be liable for those events.

In our view, any unfavourable treatment suffered by the applicant was not caused by the respondent in making the report to the Hotline, but rather by other authorities undertaking enquiries into the applicant’s behaviour and taking steps because of that.
Consequently, we find there was no unfavourable treatment or discrimination by the School under section 8(2) of the Discrimination Act. This ground is not made out.

The grounds of discrimination

We are satisfied that there has been no unfavourable treatment arising from the report to the Hotline. However, for completeness, we say also that even if we were satisfied that the complainant was treated unfavourably, we are not satisfied that this is because of his race or religion.
Were there unfavourable treatment, the applicant may have received the benefit of the presumption under section 53CA(2) of the HRCA. We will assume this presumption applies.
The circumstances that lead to the report being made may be summarised as follows:
(a)The applicant expressed political views about the inevitability of violence in the first draft of his essay.
(b)The applicant’s behaviour changed, and he became more withdrawn.
(c)The applicant unexpectedly withdrew from the School trip with little notice.
(d)The applicant instead planned to travel, alone, to a country the subject of a recent terrorist attack and a DFAT travel warning.
(e)The applicant requested a letter from the school stating that it supported the trip.
We are satisfied that any young person, or any race or religion, who displayed those behaviours, would be a cause of concern for his or her teachers, and that it would be appropriate for those teachers to make enquiries of relevant authorities. One may suggest that a failure to make enquiries would, itself, be problematic, having regard to a teacher’s duty to his or her students, as set out above.

Ground 2: Providing erroneous information about the applicant to the National Security Hotline notwithstanding that the School’s staff knew that such information was not correct

The applicant alleges that the second way he was discriminated against because of race or religion was that the School provided incorrect information to the Hotline.
The incorrect information is set out at paragraph 139 above.
We accept points (a), (b), (c) and (d) of the Principal’s email as being substantially correct.
In relation to point (f), we accept that the Teacher discussed the essay with the applicant and his father in early December of year 11. We do not understand how the School concluded that the applicant’s father had been involved in writing the essay. If anything, the standard of the essay probably suggests he did not have adult assistance in writing it.
In relation to point (e), we would not have characterised the first or second extended essays as containing radical Muslim ideology.
The extract from the applicant’s first draft of the extended essay quoted in paragraph 80 above, suggests the applicant has strong views in relation to the causes of Islamic terrorism in Western countries. However, while he expresses his views firmly, he does not encourage or incite violence or terrorism or express extreme religious views.
The writings in the first draft would nevertheless have been of concern to the School in the broader circumstance of the applicant’s change in behaviour and impending trip to the Other Country, as they may suggest sympathy with the view that terrorism is the inevitable or only response available to the Muslim community in Western countries who are upset about aggression or interference in their home country or region.
It was the Principal, not the Teacher, who formed the view that the respondent may have expressed a form of radical Muslim ideology that carried with it a risk of violence to the community or to the applicant himself,[76] and hence it was the Principal who made the error in the report.
[76] Transcript of proceedings 24 October 2019, page 265, line 34 – page 266, line 10
For the reasons set out above, we do not accept that making a report about the applicant to the Hotline of itself amounts to unfavourable treatment. Nonetheless, we accept, for present purposes, that making a false report about a person to the Hotline may be unfavourable treatment.
There is no suggestion that the Principal knowingly made a false report. Rather, the applicant’s counsel submits that the error itself was a consequence of discrimination:
It follows inevitably that a reason for the action [the Principal] took was the applicant’s Islamic faith, or his … race, or both. The evidence is entirely consistent with this being an unconscious association. It does not matter whether it was conscious, and the Tribunal does not need to reach such a finding. As described above, [the Principal] agreed that [they] was aware of everything [they] had to have been aware of to have taken the applicant’s faith and race into account, and to have formed, at least unconsciously, the prejudicial association between Muslims, or [or people of the applicant’s ethnicity], or both, and terrorist violence.
… the risk of violence [they] perceived in the applicant’s actions [as reported to her] was the reason why [they] thought [their] duty of care was engaged – and that perceived risk of violence was one to which the applicant’s Islamic faith was integral. Thus, whether or not it is found that [the Principal] did consciously advert to [their] duty of care (and the extent to which [they] did so must reflect the steps [they] actually took, i.e. only making the Hotline report – failing to take any other steps which might have been protective of the community or of the applicant himself), it must also be accepted that the applicant’s protected attributes also brought about the action [they] took.
In other words, the applicant suggests that the Principal’s assumptions, as articulated in the notification, amount to a form of “subconscious discrimination”, or unfavourable treatment, that the Discrimination Act is intended to guard against.
We accept that many people can and do make unconscious judgements about persons of certain faiths and racial backgrounds, based on prejudice or stereotypes and without rational basis. We do not accept that is what happened here.
The applicant had written a draft essay that expressed views about the inevitability of violence in some circumstances. We are satisfied that those views were political opinions, not expressions of religious ideology, let alone radical Muslim ideology. On the basis, the Principal’s description was wrong. However, we accept that the Principal was not using that term in any technical sense. To the extent there was a factual error in (e), it was based on a misunderstanding and mischaracterisation of the argument and ideology articulated in the essay as relayed by the Teacher. The underlying concerns were not without basis.
We accept the balance of point (e) as being correct, in that we accept that after receiving the first draft of the extended essay the Teacher counselled the applicant that his work was unacceptable because it did not meet the guidelines for the task.
We accept point (g) as reflecting what the Principal had been told. It provides no indication as to how the applicant’s behaviour had changed in “the past few months”. However, the Teacher had noted that applicant’s appearance had recently changed and that he had become somewhat withdrawn.[77]
[77] Exhibit R1 Tab 12 paragraph 22 E
We note for completeness that there was evidence before the Tribunal that the applicant’s behaviour changed. One the applicant’s friends gave evidence during the course of the proceeding[78] that he had noticed some changes in the applicant’s behaviour and appearance. The Friend said that the applicant was generally a quiet and hard-working student, who was proud of his heritage[79], but went on to say that during year 12,[80] at about the time he and the applicant were learning about the civil rights movement in the USA and apartheid in South Africa, the applicant changed his hairstyle and started to wear a traditional shirt sometimes.” The witness also said that the applicant was “passionate about the crimes … committed in these countries during this period and outspoken in our class discussions in history about this.”[81]
[78] Exhibit A1 Tab 5
[79] Exhibit A1 Tab 5 paragraph 12
[80] Exhibit A1 Tab 5 paragraph 14
[81] Exhibit A1 Tab 5 paragraph 14
It goes without saying that none of this behaviour is unusual for teenager, many if not most of whom many passionately about social justice and explore issues of identity during adolescence. None of it is, of itself a cause for concern. However, viewed in the context of a matrix of other information, the Teacher had some basis for concluding the applicant’s appearance and behaviour had changed.
Consequently, while some of the language in the report could have been more precise, the School was largely accurate in the report made by the Principal to the Hotline.
We do not believe that any errors in the report rise to the level of unfavourable treatment in terms of section 8(2) of the Discrimination Act.

Ground 3: Singling out and humiliating the applicant in front of his classmates by associating race and Muslim religion with acts of terrorism and bias against the West

The applicant alleges that the third way he was discriminated against because of his race or religion is that the Teacher humiliated him in front of his classmates by associating his race and Muslim religion with acts of terrorism and bias against the West.
According to the applicant, the Teacher’s attitude towards him changed at about the time he returned from the Other Country. He says that the Teacher would seek him out in the hallway or library and ask his opinion on terror-related incidents that involved people of his race and religion.
The applicant recalls four incidents which he believes exemplifies the Teacher’s change of attitude towards him and are illustrative of the fact that he was treated in a different way to other students at the School.
He recalls one occasion in or around June of year 12,[82] when the Teacher approached him and asked him about a hostage situation that involved a person of the applicant’s race and religion. The applicant could not understand why the Teacher was asking his opinion about those types of things. He felt it was weird and did not understand why his opinion would matter anymore than anyone else’s.
[82] Exhibit A1 Tab 3 paragraph 53
A second incident occurred later that year. On this occasion the applicant’s father had arranged for a journalist to meet the applicant at the School in order to discuss his CAS project which saw him travel to the Other Country.
They had arranged to meet at the front of the School.
The Teacher and the deputy principal approached the trio and one of them said words to the effect “[p]lease move away from the vicinity of the School. You cannot use the School name or logo in the article.”
After some discussion the interview could proceed in the School foyer.
It should be noted that neither the applicant nor his father had approached the School in advance to gain its permission to hold the interview on its property. We are not satisfied that the school’s actions in this regard relate to the applicant’s protected attribute.
The third incident occurred after the applicant emailed the Teacher the third and final draft of his extended essay, on 14 August of year 12. After receiving the email, the applicant and the Teacher met in order to discuss the extended essay. During that meeting,[83] the applicant says that the Teacher made comments to the effect “you are biased against the West” and “Islam is not a religion of peace.”
[83] Exhibit A1 Tab 3 paragraph 58-59
After referencing the Bali bombings and the attack of 9/11, the applicant says the Teacher asked “why is it only Muslims who commit such horrendous acts, if Islam is a peaceful religion” According to the applicant the Teacher also said words to the effect that the Teacher was “playing the devil’s advocate”, and mentioned pre-reformist Christianity as not being a peaceful religion and being known for some of the greatest horrors, referring to the Spanish Inquisition, the Jewish pogroms and the Spanish Reconquista.
The applicant said that he did not know how to react and was mostly quiet during this meeting. He felt there was a difference between playing the devil’s advocate and making pronounced opinions. He was worried that the School had reported him to the Hotline and was concerned that if he made any comments his mark for the extended essay might be affected.
Still, he said, he gave the Teacher the benefit of the doubt that the Teacher was playing the devil’s advocate and providing him with constructive feedback.
On the applicant’s evidence, none of these three incidents occurred in the presence of the applicant’s classmates and therefore cannot be part of the applicant’s claim that he was “humiliated by the Teacher in front of others”.
The applicant recalls a final incident that occurred sometime in mid-October of year 12, following a major terrorist attack in the Other Country.
The applicant recalls talking to the Teacher in the library with a number of his friends. He recalls having a discussion with the Teacher, in which he was asked a number of questions about the bombing and how he felt about that event.
The applicant felt that by asking him questions about the incident whilst not asking his friends about their views, amounted to him being treated differently by the Teacher because of his race and religion.[84] The applicant also felt that the Teacher was trivialising the incident, which was a national tragedy.
[84] Exhibit A1 Tab 3 paragraph 61
The Teacher’s did not recall the conversations in question, but said that it is:
not at all uncommon for teachers to discuss with the student an event occurring in another location where the student’s family may be located or where the student may have family or friends. It is a normal part of expressing interest and concern for our students.[85]
[85] Exhibit R1 Tab 11 paragraph 92
We accept the incidents broadly occurred in the way the applicant alleges. We also accept the Teacher’s response, including that the Teacher was playing ‘devil’s advocate’. It is understandable that the Teacher, the applicant’s IB supervisor, would test his arguments. It is also understandable that the Teacher, as the person responsible for the pastoral care of all the IB students, would ask the applicant how he felt following such a significant event in his ancestral home, the place he had only recently visited. While perhaps insensitive, we do not think that the Teacher’s conversation with the applicant in the library rises to the level of unfavourable treatment in terms of section 8(2) of the Discrimination Act or a detriment within the meaning in section 18 of the Discrimination Act.

Conclusions

In conclusion we do not find that the applicant was directly discriminated against by the School or the Teacher on any of the above grounds.
Consequently, the application is dismissed.

Suppression order

On 12 April 2019, Presidential Member Daniel made an interim suppression order in the following terms:
(a)Until further order, there is to be no publication of the names of the Applicant, witnesses named in documents filed in the matter, or the relevant school, or of any information which may allow these identities to be reasonably ascertained.
The respondent and the AFP submit that these orders should be made permanent. The applicant opposes this, other than in relation to the publication of his own name.
The AFP supports the retention of Presidential Member Daniel’s interim order of 12 April 2019, on the basis that it is in the public interest to do so.
The public interest is not a ground for a suppression order under the ACAT Act.
Rather, section 38 of the ACAT Act provides that hearings are to be in public unless a non-publication order is made under section 39. Section 39 then provides that:
39     Hearings in private or partly in private
(1)     This section applies in relation to an application, or part of an application, if the tribunal is satisfied that the right to a public hearing is outweighed by competing interests.
(2)     The tribunal may, by order, do 1 or more of the following:
(a)direct that the hearing of the application, or part of the hearing, take place in private and give directions about the people who may be present;
(b)give directions prohibiting or restricting the publication of evidence given at the hearing, whether in public or private, or of matters contained in documents filed with the tribunal or received in evidence by the tribunal for the hearing;
(c)give directions prohibiting or restricting the disclosure to some or all of the parties to the application of evidence given at the hearing, or of a matter contained in a document lodged with the tribunal or received in evidence by the tribunal for the hearing.
(3)     The tribunal may make an order under subsection (2) on application by a party or on its own initiative.
(4)     A person must not contravene an order under subsection (2) (b) or (c).
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.
(5)   For this section, the right to a public hearing is outweighed by competing interests if the tribunal is satisfied that the application, or part of the application, should be kept private—
(a)to protect morals, public order or national security in a democratic society; or
(b)because the interest of the private lives of the parties require the privacy; or
(c)to the extent privacy is strictly necessary, in special circumstances of the application, because publicity would otherwise prejudice the interests of justice.
The starting point for any suppression order is the principle of open justice. The public have the right to know what is happening in their courts and tribunals. However, the Commonwealth argues that a non-publication order would be appropriate in order to preserve national security, which is a relevant ground under section 39(5)(a) of the ACAT Act.
Departure from the principle of open justice by restricting the availability of information is only justified where there is some material before the court or tribunal upon which it can reasonably reach the conclusion that it is necessary to make an order of the type.[86]
[86] Seven Network (Operations) Ltd & Others v James Warburton (No 1) [2011] NSWSC 385 at [3]
The Hotline is a place where members of the community can make anonymous reports. Such reports may result in terrorist activity being frustrated. On the evidence before the Tribunal, we are satisfied that publishing the name of the persons making reports to the Hotline would discourage people from using the Hotline and may result in people failing to make terrorism-related reports to the Hotline. This may have ramifications for national security.
Publishing the name of the applicant, the Teacher, the Principal and the School would subvert the process of maintaining the Hotline as a place where anonymous reports can be made. For this reason, we are satisfied it is appropriate to make a non-publication order in relation to this file.
We note for completeness that we are also satisfied the applicant’s right to privacy also warrants the non-publication of his details. Even were we minded to lift the suppression order more generally, we would retain it over the applicant’s name and identifying details. These events occurred while the applicant was a minor and a student and it would be unfortunate is the consequences of this matter were to cause him further distress.
However, the applicant’s request that he suppress his name only, is simply not practicable. The release of any of the names of the Teacher, the Principal or the School would make it easier to identify the applicant, and the release of all of them will make identifying him a relatively straightforward matter within the school community, if not the Australian Capital Territory. While the applicant may be prepared to take that risk, the Tribunal is not.

In short, the Tribunal is of the view that a non-publication order that supressed only the names of the applicant would inevitably be ineffective in protecting the applicant’s identity. The Tribunal is not prepared to make a suppression order in terms that ensure it is virtually doomed to fail.
The Tribunal is also concerned that revealing information about the applicant’s family’s country of origin may also reveal his identity.
Consequently, pursuant to section 39(2)(b) of the ACT Civil and Administrative Tribunal Act 2008, we order there is to be no publication of the names of the applicant, witnesses named in documents filed in the matter, or the relevant school, or of any information which may allow these identities to be reasonably ascertained, and that there be no public access to the file without the leave of the Tribunal.
………………………………
Senior Member H Robinson
For and behalf of the Tribunal

HEARING DETAILS

FILE NUMBER:	DT 22/2018
PARTIES, APPLICANT:	Complainant 201822
PARTIES, RESPONDENT:	Australian Capital Territory (represented by the Education Department)
COUNSEL APPEARING, APPLICANT	Mr Flecknoe-Brown
COUNSEL APPEARING, RESPONDENT	Ms P Bindon
SOLICITORS FOR APPLICANT	Mills Oakley Lawyers
SOLICITORS FOR RESPONDENT	ACT Government Solicitor
TRIBUNAL MEMBERS:	Senior Member H Robinson Senior Member D Mulligan
DATES OF HEARING:	21-24 October 2019