Complainant 202005 v Trustees of the Roman Catholic Church of the Archdiocese of Canberra and Goulburn (Discrimination)
[2020] ACAT 70
•11 September 2020
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
COMPLAINANT 202005 v TRUSTEES OF THE ROMAN CATHOLIC CHURCH OF THE ARCHDIOCESE OF CANBERRA AND GOULBURN (Discrimination) [2020] ACAT 70
DT 5/2020
Catchwords: DISCRIMINATION – race – whether there was unfavourable treatment by teachers due to race – no unfavourable treatment – application dismissed
Legislation cited: Disability Discrimination Act 1992 (Cth)
Discrimination Act 1991 ss 7, 8, 18
Human Rights Commission Act 2005 s 53CA
Cases cited:Kidman v Casino Canberra Pty Ltd [2020] ACAT 50
Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132
Cooley v Australian National University [2007] ACTDT 2
Purvis v New South Wales [2003] HCA 62
Complainant 201808 v Transport Canberra and City Services [2018] ACAT 132
Tribunal: Senior Member K Katavic
Date of Orders: 11 September 2020
Date of Reasons for Decision: 11 September 2020
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) DT 5/2020
BETWEEN:
COMPLAINANT 202005
Applicant
AND:
TRUSTEES OF THE ROMAN CATHOLIC CHURCH OF THE ARCHDIOCESE OF CANBERRA AND GOULBURN
Respondent
TRIBUNAL:Senior Member K Katavic
DATE:11 September 2020
ORDER
The Tribunal orders that:
Pursuant to section 39 of the ACT Civil and Administrative Tribunal Act 2008 the publication of the following is prohibited:
(a)the applicant’s name;
(b)the applicant’s wife’s name;
(c)the names of the applicant’s children;
(d)the names of any children and teachers at the School the subject of the complaint; and
(e)any evidence given at the hearing or documents filed with the Tribunal in these proceedings which would identify the persons referred to in (a) to (d) above.
In accordance with Order 1 above, the applicant will be known as “Complainant 202005”.
The application is dismissed.
………………………………..
Senior Member K Katavic
REASONS FOR DECISION
Introduction
The applicant in this matter made a discrimination complaint to the Human Rights Commission (HRC) on behalf of his daughter, “Jane”[1], against the Trustees of Roman Catholic Church the Archdiocese of Canberra and Goulburn. The complaint relates to treatment which was said to have occurred while his daughter was a student at a school in the ACT.
[1] Pseudonyms have been used throughout this decision or names have been de-identified to ensure the identity of the applicant, his wife, his children and any children and teachers at the school the subject of the complaint are protected.
Jane identifies as aboriginal. The allegations relate to unfavourable treatment at the school because of her aboriginality. On 31 May 2019, the applicant made a complaint to the HRC. The HRC decided conciliation was unlikely to be successful in resolving the complaint and referred the matter to this Tribunal.
Background
Jane attended the school from Kindergarten to Year 2. She left the school at the end of Year 2 and commenced a different school from 2018. She identifies as aboriginal and is recognised by the Ngunnawal community.
During her time at the school, when she was in Year 2, Jane claims several things occurred each of which constitutes discrimination by two teachers at the school. She was 7-8 years old at the time of these incidents. The allegations are as follows:
(a)A teacher compared Jane’s skin colour to Jesus’s skin colour by saying “Jesus had olive skin like Jane’s” or words to that effect (Incident 1).
(b)A teacher identified Jane as aboriginal while Jane was standing in front of the class (Incident 2).
(c)A teacher misspelled her name on her artwork by missing the last letter. (Incident 3).
(d)Teachers not permitting Jane to go to the toilet for long periods of time (Incident 4).
(e)A teacher skipping Jane’s turn in class games (Incident 5).
(f)A teacher not selecting Jane to answer questions in class when she had raised her hand and instead calling on her to answer a question when she had not raised her hand (Incident 6).
The claim
The applicant’s claim is one of direct discrimination. The applicant alleges that the respondent contravened section 18(2)(c) of the Discrimination Act 1991 (the Discrimination Act) because the alleged incidents constitute unfavourable treatment of Jane because of her race.
The respondent denies the allegations of discrimination. The respondent concedes that Incidents 1, 2 and 3 occurred, albeit with a different version to that described by Jane and with context. The respondent says that even with that context they do not constitute discrimination. The respondent denies the balance of the incidents happened at all or as described by Jane. Again, the respondent relied upon context in response to these incidents.
The applicant claims that Jane has suffered as a consequence of the respondent’s actions and the incidents. She sought treatment from a psychologist and suffered embarrassment and humiliation following the incidents. The applicant seeks an unidentified amount of compensation, recognition by the respondent of its unlawful treatment of Jane and a written apology.
Legal framework
‘Race’ is a protected attribute under section 7 of the Discrimination Act.
Under section 8 of the Discrimination Act a person may be directly or indirectly discriminated against, or both. This occurs when a person treats or proposes to treat another person unfavourably because of a protected attribute. Indirect discrimination occurs when a person imposes or proposes to impose a condition or requirement that has or is likely to have the effect of disadvantage on the other person because of a protected attribute.
Section 18(2)(c) of the Discrimination Act states that it is unlawful for an educational institute to discriminate against a student “by subjecting the student to any other detriment”.
Pursuant to section 53CA(2) of the Human Rights Commission Act 2005 (HRC Act), the applicant must establish that the treatment complained about is unfavourable and the treatment was because of a protected attribute. The applicant must present evidence that would enable this Tribunal to decide in the absence of any other explanation that the treatment was because of the protected attribute. However, this may be rebutted if the respondent establishes the treatment is not because of a protected attribute of the person.
In Kidman v Casino Canberra Pty Ltd,[2] the Tribunal considered the issue of unfavourable treatment and regarded it to be a question of fact for the Tribunal to determine. It is not a comparative test, but it is an objective test. The Tribunal noted that:
The Discrimination Act does not define ‘unfavourable treatment’ or what is meant by ‘treats or proposes to treat another person unfavourably’. The 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. In other words, it does not ask: “were you treated less favourably than others?” It asks, “were you treated unfavourably?” This is an objective test. It calls for an examination of the treatment accorded to the complainant. If the consequence of the treatment is unfavourable to that person there is ‘unfavourable treatment’ and the question then turns to the reason for that unfavourable treatment, and whether it is because of the attributes they possess.[3]
[2] [2020] ACAT 50 at [22]
[3] Kidman v Casino Canberra Pty Ltd [2020] ACAT 50 at [22] citing Complainant 201823 v Insurance Australia Group Ltd Trading As NRMA [2019] ACAT 64 at [6]-[7]. See also Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132 at [22]
‘Unfavourable treatment’ has been said to encompass acts or omissions which result in some detriment, being loss, damage or injury.[4]
[4] Cooley v Australian National University [2007] ACTDT 2 [44]; See also Prezzi v the Discrimination Commissioner [1996] ACTAAT 132 at [22] (affirmed by the Federal Court in Edgelyv Federal Capital Press of Australia Pty Ltd [2001] FCA 379 at [54]-[57])
The question to ask is whether the treatment that was in fact afforded to the person with the particular characteristic (such as race or disability) was different to that which would have been afforded in similar circumstances to a person within a relevant comparator group. In this case that would be a child that did not identify as aboriginal.[5]
[5] Purvis v New South Wales [2003] HCA 62
In order to determine that issue, objectively, the Tribunal must also have regard to the context in which something occurs or is written.
In Purvis v New South Wales, Gleeson CJ held, albeit in respect of the Disability Discrimination Act 1992 (Cth):[6]
The obligations which arise from the Act have to be related to the functions, powers and responsibilities of the first respondent. Furthermore, the conduct of the first respondent can only be evaluated fairly in the light of an understanding of those functions, powers and responsibilities. The Act, in its application to educational authorities, and in its prohibition of discrimination against persons on the ground of a disability, requires a judgment both as to alleged differential treatment and as to the ground upon which action was taken. In both respects, it is impossible to ignore the context in which the first respondent, by its officers, was acting. It was charged with the care and protection of all the pupils in the school in question. The first respondent showed concern and sensitivity in its dealings with the pupil. It also recognised its legal responsibilities to the other pupils and to the school staff. If there is a reasonable construction of the Act which avoids a conflict between those responsibilities and the obligations imposed by the Act, then that construction should be preferred. And in the practical application of the Act in an evaluation of the conduct of the first respondent, those responsibilities should be kept in mind.
[6] [2003] HCA 62 at [7], per Gleeson CJ
This provides context for conduct in an educational setting.
The evidence
A number of documents were filed by the applicant. The applicant relied upon two witness statements of Witness 1[7] dated 1 April 2020[8] and 20 June 2020.[9] Witness 1 is Jane’s mother. Witness 1 also gave oral evidence at the hearing. The applicant also relied upon the following:
(a)Report of Dr Kingsley Okolie dated 30 March 2020;[10]
(b)Certificate of Aboriginality of Jane dated 14 October 2009;[11]
(c)Report of Nicola Beath (Jane’s psychologist) dated 1 August 2017 and Calm Down Box notes;[12]
(d)Handwritten notes of Jane;[13]
(e)Bundle of documents provided to the HRC.[14]
[7] A pseudonym has been used to refer to this witness
[8] Exhibit A1
[9] Exhibit A2
[10] Exhibit A3
[11] Exhibit A4
[12] Exhibit A5
[13] Exhibit A6 (Jane said she wrote these in early 2020 for these proceedings)
[14] Exhibit A7
The respondent relied upon the witness statement of Teacher 1 dated 30 July 2020[15] and the witness statement of Teacher 2 dated 30 July 2020. Teacher 1 and Teacher 2 were Jane’s teachers in Year 2. They both gave oral evidence at the hearing.
[15] Exhibit R1
At the hearing, the Tribunal invited Jane to describe her interactions with her teachers and what happened. Counsel for the respondent also asked Jane some questions. Jane did not give sworn evidence.
Jane expressed herself as an intelligent, well-spoken and gregarious young girl. Understandably, Jane had some difficulty remembering things. She described particular circumstances as best she could remember them. There were some inconsistencies and inaccuracies in what she had previously described in documents and to her parents and what she described to the Tribunal at the hearing. For instance, Jane had made a note[16] that Teacher 1 was “100% racist and I hate her”. She told the Tribunal that only one of the incidents involved Teacher 1, Incident 5, which related to a singing game using a ball where she said Teacher 1 did not select Jane to have a turn. This was the only incident involving Teacher 1. I regard those inconsistencies and inaccuracies as unintentional.
[16] Exhibit A6
Jane was also prone to some exaggeration. She wrote a note stating the “teachers wouldn’t allow me to go to the restroom for 1-3 hours.”[17] She also told the Tribunal this. When asked further questions by Counsel for the respondent, Jane acknowledged three hours was an exaggeration.
[17] Exhibit A6
When asked about the incident involving the misspelling of her name, Jane described a situation where Teacher 2 had corrected her name by removing the last letter multiple times throughout a piece of Jane’s writing in a book. She said she did not know anything about misspelling her name on artwork.
Jane told the Tribunal that talking about her teachers and these incidents made her angry. She said she hated her teachers. This is reinforced by a note by Jane which states: “One day they will pay for what they’ve done.”[18]
[18] Exhibit A6
She said she didn’t feel nice in Teacher 2’s class and wanted to be in the other Year 2 class which was taught by a different teacher. She said she liked that teacher better. She was unhappy that Teacher 2 refused her request to change classes, although there was no direct conversation between Jane and Teacher 2 about this. Jane based this on what she had been told by her mother.
Jane also told the Tribunal that she used certain words and phrases because she had heard them from others, particularly her mother. She often referred to herself as being of a “tender age” when recalling events or not being able to recall events. This was a phrase Witness 1 used. She also associated her need to go to the toilet as a “call of nature”. Again, this was a phrase used by Witness 1. Jane also acknowledged that some of what she described to the Tribunal was based on what she had heard her parents discussing and had picked up from them.
Witness 1 gave evidence that she could only rely upon what Jane had reported to her had happened. She said Jane told her Teacher 1 would skip Jane’s turn during most activities. She said Jane reported Teacher 2 would not allow her to go to the toilet and that Jane was in pain as a result. Jane reported to her that Teacher 2 would send her back to her chair to think of a different word to “busting”. She regarded Teacher 1 and Teacher 2 as racist and she was not happy about the way her daughter was treated by them. She considered that the teachers should have behaved better and supported Jane. She told the Tribunal that she had taken Jane to the doctor many times during 2017 because of abdominal pain and suspected urinary tract infections. The medical certificates and pathology results do not support this evidence.
She also told the Tribunal that Jane commenced seeing a psychologist, Nicola Beath, because of the issues at school. Ms Beath’s letter dated 1 August 2017[19] does not identify a relationship between her treatment of Jane’s anxiety and incidents at school. It states:
Witness 1 reported that from the age of about 3 or 4 Jane always had outbursts of tears whereby she would describe feeling ‘sad’ but not know why and this would last for hours. She also described Jane as a worrier who thinks about the future often and all the ‘bad things that could happen’ specifically in relation to death, friends, and performance at school.[20]
[19] Exhibit A5
[20] Exhibit A5
I am unable to give much weight to Witness 1’s evidence, given it relies wholly upon what was reported to her by Jane and is inconsistent with other documentary evidence.
There are obvious difficulties relying wholly on Jane’s account. Having regard to the circumstances set out above, it is difficult to give much weight to what she told the Tribunal. The Tribunal is of the view that while Jane was doing her best to remember things, the accuracy of some of what she described has succumbed to the passage of time and is influenced by her age at the time of the incidents, what she has heard from her parents and her dislike for the teachers involved. There is no dispute that some of the incidents occurred. The difference lies in how Jane remembers them or her interpretation of them and the manner in which Teacher 1 and Teacher 2 were able to describe, explain, and contextualise the things Jane complained about. In the circumstances, the Tribunal cannot wholly rely upon Jane’s account and for this reason, to the extent there are differences between Jane’s account and that of the teachers, I prefer the evidence of Teacher 1 and Teacher 2.
Incident 1
The applicant claims Jane was treated unfavourably because of her race when Teacher 2 held up Jane’s arm in class, rolled up her sleeve and said, “Jesus had olive skin like Jane.”
Jane’s recollection of what happened was vague. She did recall the class was inquiring into where Jesus lived and was using Google Maps. She recalled the class asking some questions, but did not think anyone asked about the colour of Jesus’s skin. She denied one student asking if Jesus had black skin. Jane said the school discouraged students from talking about skin colour.
Jane did not recall Teacher 2 showing the class any photographs she took of people when she visited Israel or that she used the words “Jesus had beautiful olive skin like my friends and beautiful olive skin like Jane.” She agreed Teacher 2 did not refer to Jane being aboriginal.
Teacher 2 gave the following account of the incident. She explained the class were exploring the New Testament and what life was like for Jesus growing up as a boy in Nazareth. The School had transitioned to an inquiry-based learning model which moved away from students raising their hands to contribute. On this occasion she invited each student to write down a question or thought on a post-it note regarding Jesus’s life. She collated the post-it notes and grouped them by theme. The two main themes were where did Jesus live and what did he look like.
Teacher 2 explained that the class was sitting on the floor with each student on their dedicated spot facing the whiteboard. She was sitting next to the whiteboard with her computer. The class discussed how they might find out where Jesus lived and agreed to use Google Maps. Teacher 2 said that as part of the class exploration on Google Maps, they visited Nigeria because one of the students had recently visited relatives in Nigeria. She said one particular student who was renowned for making insensitive and inappropriate comments said words to the effect “was Jesus black”. The School had been working with this particular student in respect of this kind of behaviour and Teacher 2 explained that responding to the question and giving an answer required some modelling. This would assist the student in recognising what appropriate language was and how to convey something in a more sensitive way. In order to do this, Teacher 2 said she explained to the class that Jesus did not live in Africa and that Jerusalem was closer to the Mediterranean Sea where people had olive skin. She said she showed the class pictures of some children in Kenya and some pictures of people which she took during her trip to Jerusalem. She said the following:
Jesus and Mary would have had beautiful olive skin. My friends in the pictures have beautiful olive skin. Jane has beautiful olive skin.
Teacher 2 said she pointed towards Jane but did not touch her in any way. Jane remained seated on the floor. She did not refer to Jane being aboriginal. Teacher 2’s evidence was that her response was a way of modelling an appropriate reference to skin colour. Nothing further was said about the topic.
The applicant argued that Teacher 2’s comparison of Jane’s skin colour to Jesus’s skin colour was unfavourable treatment because of her aboriginality. The applicant also argued that it was sufficient for Teacher 2 to have referred to the skin colour of the people in the pictures to make her point and it was not necessary to refer to Jane as well.
In a primary school setting, particularly with children of a young age, topics such as skin colour will arise. Children will be curious about such physical and racial differences without realising the sensitivity surrounding them. There is no doubt such a topic needs to be addressed as sensitively as possible. I am satisfied Teacher 2 attempted to do that. It was perhaps poor judgment to emphasise the comparison and behavioural modelling using Jane’s skin colour as well, but poor judgement does not constitute unfavourable treatment. It was common ground that Teacher 2 did not refer to Jane’s aboriginality when making the comparison. I am not satisfied that Teacher 2’s statement about Jane’s skin colour constitutes unfavourable treatment because of her aboriginality.
The allegation regarding Incident 1 is not established.
Incident 2
Jane claimed Teacher 2 told the entire class that she was aboriginal while she was made to stand in front of the class. Jane explained that she had been chosen, along with other students, by Teacher 2 for a role at an assembly. One student who had not been selected asked “why does Jane get to do it”, to which Teacher 2 responded “because she’s aboriginal”. Jane said the script she had been given to read was not about being aboriginal and she felt that she had only been asked because she was aboriginal not because she was good at speaking. She said she was embarrassed and had not given Teacher 2 permission to identify her as aboriginal to the class.
Teacher 2 gave evidence that Jane had been chosen to give an Acknowledgement to Country at an assembly together with other students who had been selected for particular roles. She said Jane was happy to do it and took the script without objection. To the best of her recollection, the group of students including Jane was standing at the front most likely for rehearsal when a student called out “why does Jane get to do that”. Teacher 2 says she replied, “because she is aboriginal and it is her cultural right”.
The unfavourable treatment is said to be Teacher 2 identifying Jane as aboriginal to the class without her permission. The context in which Teacher 2 explained this occurred is significant. Jane had been selected to carry out a role significant to indigenous people. Whether she understood what she was being asked to do and its significance is not clear.
The respondent submitted that if anything, Jane’s aboriginality was being celebrated by Teacher 2 and the school and that it was appropriate for her to deliver the Acknowledgement to Country. Further, the respondent submitted that Jane’s aboriginality was not a secret and there was no evidence before the Tribunal that she was not to be identified publicly in class or at the school as being aboriginal.
I am not satisfied that merely identifying Jane as aboriginal constitutes unfavourable treatment of her because she is aboriginal. I am satisfied that Teacher 2 made the statement in order to give an explanation to the class as to why it was significant that Jane was selected to deliver the Acknowledgement to Country. There is no evidence before the Tribunal that Jane’s aboriginality was not to be discussed or kept a secret.
A statement in the terms made would properly have been directed to any student, regardless of the student’s race, ethnicity or national origin. The statement was concerned with an explanation as to why Jane had been assigned a particular role. It was the proper province of a teacher to give that explanation when asked. A teacher doing so could not be regarded as treating a student unfavourably on the grounds of race.
The allegation in respect of Incident 2 is not established.
Incident 3
The applicant alleges Teacher 2 misspelt Jane’s name on a piece of her artwork which was displayed in the classroom. Teacher 2 explained in her evidence that she was writing students’ names on their art and partway through writing Jane’s name she was distracted by a teacher and inadvertently did not complete her name by missing the last letter. She thinks she realised her error when she was taking the artwork down some time later.
Jane told the Tribunal that she did not know anything about Teacher 2 misspelling her name on artwork and recounted that Teacher 2 had corrected her name by missing the last letter several times in a piece of writing Jane had written in a book.
I am not satisfied that incorrectly spelling Jane’s name constitutes unfavourable treatment. Furthermore, there is no evidence before the Tribunal that Teacher 2 misspelt Jane’s name because she is aboriginal.
The allegation in respect of Incident 3 is not established.
Incidents 4, 5 and 6
There is a common theme between Incidents 4, 5 and 6 related to class management and Jane’s participation. I will deal with them together.
The applicant claimed that Jane was not allowed to go to the toilet during class and was made to wait hours to go. There was some common ground between Jane’s account and Teacher 2’s evidence. Jane accepted that ‘hours’ was an exaggeration. Jane told the Tribunal that on many occasions she would ask Teacher 2 to go to the toilet during class. She said Teacher 2 refused.
Jane described saying to Teacher 2, “I’m busting.” Teacher 2 would instruct Jane to return to her desk and think of a better way to ask. Teacher 2 agreed. Teacher 2 did not recall this occurring more than once. She explained that as a teacher she was required to ensure she knew where all students were at all times and had to manage when students left the classroom. She explained that there was a risk students would not return or even play in the toilets. The practice she adopted was to only allow one student to go at a time and the next could leave when that student returned. The school also had rules surrounding appropriate manners. The students were encouraged to use appropriate language when making requests, this included “can I please go to the toilet” instead of “I’m busting” or other such terms. It applied to everyone.
When describing this to the Tribunal, Jane often referred to the collective “we would say”, or “we were told”, but later suggested she did not recall if Teacher 2 used the same approach with other students. Jane’s general narrative of the circumstances causes me to believe that she was not the only one required to consider a better way of asking to go to the toilet.
The applicant claimed Jane needed to use the toilet more often as she was at risk of contracting urinary tract infections and did because Teacher 2 refused to let her go when she asked. The only evidence before the Tribunal that Jane had such an infection were pathology results from 14 November 2016 which was before Jane was in Teacher 2’s class. The remaining pathology results are not consistent with infection.[21]
[21] Exhibit A2
The applicant claimed Teacher 1 skipped Jane’s turn during a singing game using a ball. Jane told the Tribunal this only happened once. She explained the class was learning a song and Teacher 1 would pass the ball to each student to sing a part of the song. Jane said Teacher 1 looked at her and then threw it to the next student. She “did not know if she did it on purpose, but pretty sure and definitely skipped her deliberately and everyone else got a turn”.
Some of Jane’s recollection is the same as Teacher 1 evidence. Teacher 1 told the Tribunal she used a ball game to help the students learn a song. She explained that the exercise was an “opt in” one where students could volunteer to participate. The ball was like a ‘talking stick’ such that the person holding the ball was required to sing. Only a handful of students volunteered. Most students did not have a turn because they had not opted to participate. She said she would hold the ball and sing part of “Road to Gundagai” stopping at a phrase or word and pass the ball to a student for them to sing the next phrase or word. She could not recall whether Jane opted to participate and does not recall whether she had a turn or not and that if Jane did not have a turn it was likely because she had not put her hand up and volunteered.
The applicant claimed Teacher 2 would not choose Jane to answer a question when she had her hand raised but would choose Jane to respond when she did not have her hand raised. Jane told the Tribunal that she felt Teacher 2 would only choose her when she did not have the answer. She complained that Teacher 2 barely chose her.
Teacher 2 told the Tribunal that as part of the transition to inquiry-based learning, she introduced a paddle pop stick method of participation. This involved each student’s name being written on a paddle pop stick which were all placed in a jar. A paddle pop stick was drawn from the jar and the student named on the paddle pop stick would be invited to answer a question or contribute to the discussion. Teacher 2 explained that if the student selected was unsure of an answer or contribution the student would ask another student to consult with them on what the answer was. She explained that hand raising was discouraged in the inquiry-based setting and some students had difficulty adjusting.
Jane recalled the paddle pop stick method being used but said it was only used for activities and she still needed to put her hand up.
Teacher 2 told the Tribunal that Jane found listening to others challenging but described her as a capable reader with developing writing skills. She said the Year 2 class had some challenging students in it with a variety of backgrounds and learning needs and because of this she adopted ways to optimise participation. One such method was to place dedicated spots on the floor for each student to sit on during class discussions. This was the setting in which the paddle pop stick method of participation was used. She denied ignoring Jane if she raised her hand.
I am not satisfied that Incidents 4, 5 and 6 amount to unfavourable treatment or that they occurred because of Jane’s race. Jane was not treated any differently to other children in her class in respect of going to the toilet during class time, participating in activities or contributions in class discussions.
Jane clearly disagreed with decisions made such as the circumstances around when she could go to the toilet during class or when she was selected to answer a question or have a turn at an activity. If the incidents occurred as Teacher 2 and Teacher 1 outlined, and I am satisfied that they did occur in that context, they made Jane unhappy. It caused her to dislike her teachers. As the Tribunal said in Complainant 201808 v Transport Canberra and City Services:[22]
However, not every uncomfortable or unpleasant thing that happens to a person at work is ‘unfavourable treatment’ under the Discrimination Act. Many of the incidents relied upon by the complainant are not sufficiently substantial to be considered a ‘detriment’ in the sense the word is used in the Discrimination Act.”
[22] [2018] ACAT 132 at [96]
The same can be said about attending school. A student will not necessarily agree with every decision a teacher makes or every instruction given. Without more, these incidents cannot be said to constitute ‘detriment’. Even if I were to assume either individually or collectively, that the incidents constitute unfavourable treatment, the evidence does not show that the true basis or real reason for any of the teachers’ conduct was Jane’s race. [23] The causative relationship between the conduct and the protected attribute has not been proven.
[23] See Purvis v New South Wales [2003] HCA 62
For discrimination to arise directly or indirectly those decisions made by the teachers must be shown to be unfavourable treatment of Jane because of her race or have the effect of disadvantaging her because of her race. I am not satisfied they can be characterised as either. The applicant has not shown that in this case. I regard these incidents as ordinary decisions made by a teacher in the course of managing a class. That is consistent with the context described in Purvis. [24]
[24] Purvis v New South Wales [2003] HCA 62 at [7], per Gleeson CJ
The allegations regarding Incidents 4, 5 and 6 have not been established.
Suppression order
At the commencement of the hearing, I raised the issue of whether a non-publication order was necessary in the circumstances to protect Jane’s privacy as well as that of her family. I made orders prohibiting the publication of the name of the applicant, his wife, his children and the name of any other student at the school and any evidence given at the hearing or in any document lodged in the proceedings. The respondent supported this approach. I indicated to the parties that the continuation of such orders could be revisited at the conclusion of the hearing.
I invited the parties to make further submissions about whether such an order should remain in place. The applicant submitted he could see the benefit in such an order given Jane’s age and the medical information disclosed in these proceedings. However, both Witness 1 and Jane were opposed to any restrictions on publication. They preferred a published decision. The applicant felt compelled to respect their views. He ultimately left the question in the Tribunal’s hands. The respondent maintained its position that the orders should remain in place.
In the circumstances, I consider it is appropriate to prohibit the publication of the applicant’s name, his wife’s name, his children’s name, the names of other children and teachers at the school and evidence given at the hearing or documents filed with the Tribunal in these proceedings to ensure those persons cannot be identified. To do otherwise would be contrary to the public interest and contrary to the interests of the private life of the applicant, particularly Jane given she is a child.
Conclusion
Dissatisfaction with a decision or lapse in judgement do not amount to discrimination. It must be shown that the protected attribute is the real reason for the decision or lapse. I am not satisfied that Jane was the subject of discrimination.
I am not satisfied on the evidence before me that the respondent contravened section 18(2)(c) of the Discrimination Act. Simply because decisions are made or directions are given in an educational setting that a student does not like, particularly a 7-8 year old child, does not mean that person has been discriminated against. At best, the incident involving the comparison of Jane’s skin and Jesus’s skin displayed poor judgement.
The conduct must be because of a protected attribute or have the effect of causing disadvantage to a person because of a protected attribute in order to qualify as discrimination. This has not been demonstrated in this case.
The Tribunal orders:
1.Pursuant to section 39 of the ACT Civil and Administrative Tribunal Act 2008 the publication of the following is prohibited:
(a) the applicant’s name;
(b) the applicant’s wife’s name;
(c) the names of the applicant’s children;
(d) the names of any children and teachers at the School the subject of the complaint; and
(e) any evidence given at the hearing or documents filed with the Tribunal in these proceedings which would identify the persons referred to in (a) to (d) above.
2.In accordance with Order 1 above, the applicant will be known as “Complainant 202005”.
3. The application is dismissed.
………………………………..
Senior Member K Katavic
HEARING DETAILS
FILE NUMBER: | DT 5/2020 |
PARTIES, APPLICANT: | In person |
PARTIES, RESPONDENT: | Trustees of the Roman Catholic Church of the Archdiocese of Canberra and Goulburn |
COUNSEL APPEARING, APPLICANT | N/A |
COUNSEL APPEARING, RESPONDENT | Ms J Dempster |
SOLICITORS FOR APPLICANT | N/A |
SOLICITORS FOR RESPONDENT | Catholic Education Archdiocese of Canberra and Goulburn |
TRIBUNAL MEMBERS: | Senior Member K Katavic |
DATES OF HEARING: | 17 & 18 August 2020 |
0
6
3