Director General, Department of Education and Training v ZG

[2007] NSWADTAP 50

Appeal Panel - Internal

CITATION:	Director General, Department of Education and Training v ZG on behalf of A, B and C; ZG on behalf of A, B and C v Director General, Department of Education and Training (EOD) [2007] NSWADTAP 50
PARTIES:	FIRST APPELLANT Director General, Department of Education and Training FIRST RESPONDENT ZG on behalf of A, B and C SECOND APPELLANT ZG on behalf of A, B and C SECOND RESPONDENT Director General, Department of Education and Training
FILE NUMBER:	069078; 079014
HEARING DATES:	14 May 2007
SUBMISSIONS CLOSED:	17 May 2007
DATE OF DECISION:	13 September 2007
BEFORE:	Hennessy N - Magistrate (Deputy President); Conley J - Judicial Member; Lowe A - Non Judicial Member
CATCHWORDS:	Race Discrimination complaints - Anti-Discrimination Act 1977 - appeal on question of law and on merits - law incorrectly applied - appeal upheld
MATTER FOR DECISION:	Prinicpal matter
FILE NUMBER UNDER APPEAL:	041062
DATE OF DECISION UNDER APPEAL:	12/05/2006
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Director General, Department of Education & Training v FP and FQ on behalf of FR (EOD) [2003] NSWADTAP 51 Italiano v Carbone & Ors [2005] NSWCA 177 Lloyd v Veterinary Surgeons Investigating Committee (2005) 65 NSWLR 245 Lupevo Pty Ltd t/a Ampol Nabiac -v- Bree [2002] NSWADTAP 9 O’Callaghan v Loder [1983] 3 NSWLR 89
REPRESENTATION:	FIRST APPELLANT & SECOND RESPONDENT E Brus, barrister FIRST RESPONDENT & SECOND APPELLANT In person
ORDERS:	1. The Tribunal’s orders are set aside.; 2. In substitution for those orders, the following orders are made:; a) The complaint of race discrimination by ZG on behalf of A is dismissed.; b) The complaint of race discrimination by ZG on behalf of A, B and C is dismissed.

Introduction

1 ZG complained of race discrimination on behalf of his sons, A, B and C. All three boys were attending Excelsior Primary School at the time the complaints were made at the end of 1999 and were then aged about 7, 9 and 10. The Tribunal found some of the complaints to be substantiated and ordered the Director General of the Department of Education to pay ZG $6,000 in damages. The Tribunal also ordered the school to apologise. The Director General has appealed against the Tribunal’s decision on questions of law and has sought leave for the appeal to be extended to the merits of the Tribunal’s decision: Administrative Decisions Tribunal Act1997 (Tribunal Act), s 113(2). ZG also filed an appeal, but it was out of time. The Appeal Panel must give leave before hearing an out of time appeal.

Out of time appeal

2 Legal principles. An appeal must be made within 28 days of the Tribunal furnishing written reasons for its decision or within such further time as the Appeal Panel allows: Tribunal Act, s 113(3). In this case, the parties were furnished with the decision on 5 December 2006 or shortly after that date. The Director General of the Department lodged an appeal within time on 20 December 2006 and an amended Notice of Appeal on 1 March 2007. ZG lodged an appeal on 22 March 2007. Prima facie, proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however, if it is proper to do so. In the case of an appeal such as the one ZG lodged, which is in the nature of a cross-appeal, the Tribunal’s Practice Note No 5 states that:

If the respondent’s appeal is lodged within 21 days of the service of the appellants appeal the Appeal Panel will usually regard this as a reasonable period of time.

3 The factors relevant to a consideration of whether to allow further time to appeal include the reason for the failure to lodge the appeal, the length of the delay in lodging the appeal, the diligence shown by the appellant in lodging the appeal after it came to his notice that there were circumstances justifying an appeal, the consequences of the decision on the appellant's rights and the merits of the appeal: Lupevo Pty Ltd t/a Ampol Nabiac -v- Bree [2002] NSWADTAP 9 at [5] to [9].

4 Parties’ submissions. ZG says he lodged his appeal within 21 days of the Amended Notice of Appeal and was delayed because the balance of the transcript of the Tribunal hearing was not available until 1 March 2007. ZG also says that the lack of legal representation or the delay in the determination of his application to the Legal Aid Commission prevented him from appealing earlier. Ms Brus, representing the Department, submitted that ZG’s appeal was merely a reaction to the initial appeal and that ZG knew in January 2007 that his application for legal aid had been refused. She said that the lack of a full transcript is not an adequate reason for the delay.

5 Decision on out of time appeal. ZG’s cross-appeal was lodged within 21 days of the Amended Notice of Appeal, but not within 21 days of the date the original Notice of Appeal was filed. Consequently, the presumption in the Practice Note does not apply. Nevertheless, taking into account all the relevant factors, including the desirability of the Appeal Panel considering all the grounds of appeal put forward by both parties, we have decided to give leave for ZG’s appeal to be heard out of time. Both parties still need leave before the appeal can be extended to the merits of the Tribunal’s decision.

Nature and extent of complaints

6 Failure to consider all complaints. ZG submitted that the Tribunal made a legal error by not considering the complaints of aiding and abetting (AD Act, s 52), racial vilification (AD Act, s 20C) and victimisation (AD Act, s 50). He also said that any unlawful race discrimination in breach of s 17(2) was a result of both “direct” and “indirect” discrimination: s 7. He said the Tribunal did not consider his complaint as a complaint of indirect discrimination.

7 First complaint. The President of the Anti-Discrimination Board referred two complaints to the Tribunal. The first was a complaint of race discrimination by ZG on behalf of his son A covering the period from 11 March 1999 to 29 October 1999. That complaint was about an incident on 11 March 1999 where it was alleged that two students, E and F, said when A was sitting next to them, that they did not like Asian and Chinese food and that all Asian and Chinese restaurants should be bombed to make way for more McDonalds and Kentucky Fried Chicken outlets and that they hated Chinese and Asians. E then came towards A saying, “I’m going to kill you” and poked him with a pair of scissors. (Although ZG characterised the complaint as one of “racial vilification” in his complaint to the President of the Anti-Discrimination Board, when referring the complaint, the President said that he treated the complaint as one of race discrimination in the area of education.) The complaint also included allegations about how the school responded to this incident.

8 Second complaint. The second complaint referred by the President was a complaint of race discrimination by ZG on behalf of A, B and C, against the Director General of the Department covering the period from 15 May 1999 to 15 November 1999. That complaint alleged that the school directly discriminated against the three boys or allowed other students to discriminate against them.

9 Tribunal’s jurisdiction. The complaint as referred by the President of the Anti-Discrimination Board is the basis for the Tribunal’s jurisdiction: AD Act 95(3) and Tribunal Act, s 37. Once referred, complaints cannot be added, unless the Tribunal amends the complaint: AD Act, s 103. ZG did not apply to amend the complaint to add complaints of racial vilification or victimisation. Nor could ZG rely on a breach of s 52 (aiding and abetting) without seeking to join the students or staff who had allegedly caused, instructed or induced the Director General to do an act that is unlawful under the AD Act. Although complaints cannot be added without formal amendment, a complainant may rely on indirect discrimination, for example, as long as the respondent has adequate notice of that fact. ZG was legally represented when the original Points of Claim were filed and did not plead indirect discrimination. Nor did he mention indirect discrimination when making oral submissions to the Tribunal at the hearing. On the basis of these legal principles and factual matters, the Tribunal did not make a legal error by confining itself to considering two complaints of direct race discrimination against the Director General of the Department.

Applications for leave to extend the appeal to the merits

10 Both parties applied for leave for the appeal to be extended to the merits of the Tribunal’s decision. There is no need for the Tribunal to find an error of law before granting leave for an appeal to extend to the merits of the Tribunal’s decision: Lloyd v Veterinary Surgeons Investigating Committee (2005) 65 NSWLR 245. These proceedings were heard over five days. The complaint relates to events that occurred eight years ago. A great deal of evidence was given. The Tribunal gave a detailed account of the evidence at [26] to [45]. The Tribunal carefully evaluated that evidence and made primary findings of fact as to what had occurred at [46] to [63]. Those primary findings were supported by the evidence and included reasons as to why certain evidence was rejected and other evidence was accepted. We are not persuaded that there is any justification for re-visiting these primary factual findings.

11 The Tribunal went on to apply its understanding of the law to the primary facts as found. While the Tribunal misunderstood the law, it made all the legal findings that it needed to make in order to resolve the complaint. In those circumstances there is no justification for extending the appeal to the merits of the Tribunal’s factual findings.

Procedural fairness and other questions of law

12 Both parties also appealed on the ground that the Tribunal had acted in a procedurally unfair manner. The Department’s submission was that the Tribunal did not give the Department an opportunity to make any submissions in relation to material that the Tribunal relied on in [76] and [77] of the decision. That material referred to definitions of “racism”. In addition, the Department submitted that the Tribunal considered policies (at [88]-[90] of the decision) that were not part of the evidence and were not current at the time of the complaints. We accept that the Tribunal did not indicate to the parties that it would be relying on its own inquiries as to the definition of ‘racism’ and the policies of the Department. It is a clear breach of procedural fairness for the Tribunal to rely on material that was not brought to the attention of the parties. However, as the Appeal Panel’s ultimate decision is that all the complaints be dismissed, there is no utility in remitting the matter to the Tribunal to decide in accordance with the principles of procedural fairness.

13 Some of ZG’s grounds of appeal relating to procedural fairness were not in fact alleging a breach of procedural fairness. For example, ZG said that the Tribunal breached procedural fairness by failing to consider the “relevant and reliable evidences in full and instead placed more weight on irrelevant and/or incorrect evidence and considerations.” ZG did not allege that the Tribunal made findings of fact based on no evidence. ZG also alleged that the Tribunal denied him procedural fairness by failing to provide him with an opportunity to present evidence in relation to the costs of transferring his children from Excelsior Public School to another school including moving house, travelling costs and medical reports. ZG had every opportunity to present whatever evidence he wished of the damages he or his children suffered. ZG could not point to any part of the transcript where the Tribunal refused to allow him to present his evidence. In fact, he presented evidence about his need to re-locate on 9 May 2006 (see p 151-154 of transcript).

14 In relation to ZG’s objections to the Tribunal’s decisions to set aside four summonses, these were interlocutory decisions and ZG failed to appeal against them at the time. (See transcript of 8 May 2006 at p34, pt 39.) ZG objected to the Tribunal relying on the written evidence of one student when he was not permitted to summons her to give evidence. The Tribunal’s decision to rely on that evidence is not an error of law in circumstances where the Department did not dispute the evidence and that evidence supported ZG’s allegations. Finally, ZG said that the Tribunal did not tell him that he needed to provide evidence of certain things, for example medical evidence of the effect that the school’s conduct had on him and his wife. As ZG had brought the complaints on behalf of his children, rather than in his own right, he was not entitled to any damages for a breach of the AD Act regardless of the evidence he may have presented. None of the remainder of ZG’s grounds of appeal raised a question of law.

Department’s appeal on questions of law

15 Summary of Appeal Panel’s approach and conclusions. On the basis of the Department’s appeal, we have found that the Tribunal did not ask itself the right questions in the process of reaching its decision. Rather than remitting the decision to the Tribunal to re-determine the case based on correct legal principle, we have applied the correct legal principles to the relevant facts as found by the Tribunal. The remainder of this decision:

a) identifies the relevant findings of fact made by the Tribunal;

b) identifies the correct legal principles to be applied in relation to those findings;

c) identifies the errors of law made by the Tribunal; and

d) applies the correct law to the facts as found by the Tribunal.

16 Categorisation of allegations. The Tribunal divided the allegations in the two complaints referred by the President into separate categories. The first category was largely disciplinary action taken by staff against A, B and C. The second category comprised two remarks made to A by other pupils at the school and the liability of the Director General of the Department for those remarks. In relation to the first category of complaints, the Tribunal made the following findings of fact:

1. Findings in relation to treatment of Child A :

After ZG reported the “scissors incident” to Police and the Ombudsman, Staff members responded by “telling both those agencies that E was 9 years old, instead of 10 years old, saying that the incident with the scissors was an “accidental action”, and saying that the scissors were safety craft scissors when they were not.

Teachers gave him detention

Asked to pick up papers in the playground

Teacher confiscated a packet of chips for 10 days

2. Findings in relation to treatment of child B:

Asked to pick up papers in the playground

Principal made him admit to saying ‘bum’ by interrogating him

1998: Teacher, Mrs Y lightly hit B on the head with a book on four occasions in class (Note: this incident is outside the period covered by the complaint.)

3. Findings in relation to Child C

Given detention for saying “bum”.

17 The Tribunal’s findings in relation to the second category of complaints- the remarks from fellow students - were as follows:

11 March 1999 - two other students, E and F, said when A was sitting next to them, that they did not like Asian and Chinese food and that all Asian and Chinese restaurants should be bombed to make way for more McDonalds and Kentucky Fried Chicken outlets and that they hated Chinese and Asians.” E then came towards A saying, “I’m going to kill you” and poked him with a pair of scissors.

25 October 1999 – Three students, E, L and M made comments that Chinese food tasted like shit and said “ching chong chinaman” while standing next to A outside the school library.

18 Having made findings of fact, the Tribunal was obliged to apply the law to those findings. The question for the Tribunal was whether the respondent, the Director General of the Department of Eduction, was in breach of s 17(2) of the AD Act. That provision states that;

(2) It is unlawful for an educational authority to discriminate against a student on the ground of race:

(a) by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority, or

(b) by expelling the student or subjecting the student to any other detriment.

19 Section 7 defines discrimination on the ground of race for the purposes of s 17(2). As we have said, there was no reliance on ‘indirect’ discrimination. Nor was there any suggestion that the discrimination was on the ground of a characteristic of race: s 7(2). Consequently, we set out below the provisions in s 7 which relate to ‘direct’ discrimination:

(1) A person ( "the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of race if, on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race

20 Section 4A of the AD Act states that:

(a) an act is done for 2 or more reasons, and

(b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act),

then, for the purposes of this Act, the act is taken to be done for that reason.

21 Liability of respondent for actions of employees. In relation to the first category of complaints, the treatment of A, B and C by members of staff, those staff members are not personally liable for any breach of s 17(2). The respondent, as an educational authority, will be vicariously liable for any unlawful conduct of employees by virtue of s 53:

(1) An act done by a person as the agent or employee of the person’s principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.

(2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability.

(3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.

(4) For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services.

22 Relevant questions. There was no issue that A, B and C are of Chinese background and that that is a ‘race’ as defined in s 4. There was also no issue that the respondent was an educational authority. On the basis of the requirements set out in s 17(2) and s 7, the questions the Tribunal should have asked itself in relation to the first category of complaints were:

1. Do the findings amount to denying A, B or C access, or limiting their access, to any benefit provided by the educational authority, or to subjecting A, B or C to a detriment in terms of s 17(2)?

2. If so, was that treatment “less favourable treatment” and was that treatment “on the ground of” the race of the children as required by s 7?

3. If so, is the Director General vicariously liable for the acts of his employees?

23 Denial of benefit or subjecting to a detriment. The Tribunal did not identify the benefit to which the children did not have access or the detriment to which they were subjected as a result of the way in which they were disciplined. However, it is implied in the Tribunal’s reasoning that it was a detriment to be disciplined by a teacher. Consequently, the Tribunal implicitly answered ‘yes’ to the first question.

24 Differential treatment and causal connection. In order to determine whether the disciplinary measures and other conduct by staff constitutes discrimination on the ground of race, as required by s 7, the Tribunal must ask itself two questions: whether that conduct amounts to differential treatment and, if so, whether that treatment was on the ground of race: Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5. In order to determine whether there has been differential treatment one must compare the treatment afforded to the children with the treatment afforded to another person of a different race. If there is no comparator then the comparison must be made in relation to a hypothetical person of a different race. If the comparison produces the conclusion that the alleged victim was treated objectively less favourably than a person of another race, it is then necessary to consider the reasons for that different treatment, that is, causation.

25 Tribunal’s findings. The Tribunal said at [68], that in relation to matters of discipline, that the teachers “were more than usually careful in their discipline of A, B and C, not because of the children’s race but rather because they were aware that ZG would complain if he disagreed.” The Tribunal concluded at [71], that even if the evidence about how A, B and C were disciplined was accepted, the teachers “did not act, even in part, because of the race of the ZG children.” Further, the Tribunal was not satisfied that Excelsior staff would have acted differently in the same or similar circumstance in the case of a child who was not of Chinese race. Similarly, in relation to the allegations about how the staff responded when ZG reported the ‘scissors incident’ to the Police and the Ombudsman, the Tribunal was “not satisfied that that response was made because of A’s race or that Mr Ryan (the principal) or other Departmental staff would have said differently in the case of a child who was not of the Chinese (race) in the same or similar circumstances.” The Tribunal concluded by saying at [75], that:

After considering all the evidence, the Tribunal finds that ZG has not established that his claims, other than those considered below, amount to unlawful discrimination by the Respondent on the ground of race within Section 7 and/or 17 of the ADA.

26 Appeal Panel’s conclusions. The Tribunal regarded s 7 and s 17 as alternatives and found that neither provision had been breached. That was an error of law. Nevertheless, the Tribunal made the relevant finding it needed to make in order to resolve the complaint. It implicitly answered ‘yes’ to the first question. It also considered separately the question of whether that detriment was “on the ground of race” as defined in s 7. The Tribunal found that there was no differential treatment and that there was no connection between the way staff disciplined the children or reported matters to outside authorities and their race. That was a finding that was open to it on the evidence. Having come to that view, there was no need for the Tribunal to consider the third question, that is whether the Director General was vicariously liable for any act of discrimination. Although the Tribunal misunderstood the legislative provisions, it made the relevant findings that needed to be made. When those findings are correctly applied, the same conclusion is reached, that is, the allegations do not constitute a breach of s 17(2).

27 The Tribunal made no order in relation to these allegations. It should have ordered that the complaints relating to the conduct of employees of the respondent towards A, B and C be dismissed.

Complaints relating to comments by other students

28 Liability of respondent for comments by other students. The second category of complaints involved comments made by other children at the school to A on two occasions. An educational authority is only liable for its own conduct and, vicariously, for that of its employees or agents: s 53. It is not liable for the conduct of its students. Nor are the students personally liable for discriminating against another student on the ground of race. If the Director-General is to be held legally responsible for the environment to which A was subjected at the school, it is necessary to establish that members of staff discriminated against A on the ground of race in their response to what was found by the Tribunal to be an environment in which A was subjected to two racial remarks by other students. The school’s response to those remarks must be analysed to determine whether the staff members (not the students) discriminated against A on the ground of race. (See Director General, Department of Education & Training v FP and FQ on behalf of FR (EOD) [2003] NSWADTAP 51 at [51] (6 November 2003).)

29 Relevant questions. The questions the Tribunal should have asked itself in relation to its primary findings of fact were:

1. Do these findings amount to denying A access, or limiting his access, to any benefit provided by the educational authority, or to subjecting A to a detriment in terms of s 17(2)?

2. If so, was that treatment differential treatment and was there the necessary causal connection between the treatment and the race of the children as defined by s 7?

3. If so, is the Director General vicariously liable for the acts of his employees?

30 Tribunal’s findings. Instead of asking itself the three questions set out above, the Tribunal again assumed that s 17(2) and s 7 were stand-alone provisions, both of which made certain conduct unlawful. In fact, s 7 is merely a definition of what constitutes discrimination on the ground of race for the purposes of s 17(2). The Tribunal’s error is apparent from the following passage at [99]:

After careful consideration of all the evidence, the Tribunal is not satisfied that these failures amount to unlawful discrimination by the Respondent against the ZG children within Section 7 of the ADA. However, the Tribunal is satisfied that by these failures, the Respondent unlawfully discriminated against ZG ’s sons on the ground of race by failing to provide ZG ’s sons with the benefit of a safe learning environment and/or by subjecting them to the detriment of a learning environment where racism was tolerated. After considering all the evidence, the Tribunal finds that the Respondent unlawfully discriminated against the ZG children on the ground of race within Section 17 of the ADA.

31 Despite this error, the Tribunal did ask itself the first two questions it needed to ask. When the Tribunal’s answers to those questions are applied to the relevant legislative provisions, the outcome is that the complaint must be dismissed. We explain below why that is the case.

32 Identification of benefit or detriment. The Tribunal defined the benefit as a “safe learning environment” and the detriment as “a learning environment where racism was tolerated”. In Director General, Department of Education & Training v FP and FQ on behalf of FR (EOD) [2003] NSWADTAP 51 (6 November 2003) the Appeal Panel decided, at [37] that a “benefit” should be defined in terms of its content. The respondent submitted that a “safe learning environment” was not a “benefit” within s 17(2), nor is a “learning environment in which racism is tolerated” a detriment.

33 In O’Callaghan v Loder [1983] 3 NSWLR 89, Mathews DCJ found that sexual harassment in the workplace, which the employer knew or ought to have known about, could be regarded as a "detriment". After discussing cases of sexual harassment including O’Callaghan v Loder, the Appeal Panel concluded in FP and FQ at [50] that:

Similarly, racial harassment of a student by fellow students at a school, which the teachers knew about or ought to have known about and took inadequate steps to eradicate, may constitute unlawful discrimination on the ground of race. Being in a school environment poisoned by racial harassment may constitute a "detriment" for the purposes of s 17(2)(b) of the AD Act. It may also constitute denial or limitation of a "benefit" associated with education if the benefit is cast as being the opportunity to enjoy the educational and social functions of a school free from harassment, whether racially based or otherwise.

34 The Tribunal did not err in defining the “detriment” as being in a learning environment where racism is tolerated. Another way of characterising the detriment would have been “being in a school environment poisoned by racial harassment.” The respondent challenged the Tribunal’s finding at [99] on the basis that two incidents at the school, which occurred seven months apart, could not amount to an environment where racism is tolerated. Although there is some force to this submission, this was a finding of fact which it was open on the evidence for the Tribunal to make. The Tribunal went on to find, at [98], that staff at the school had failed to respond adequately to the two incidents:

The Tribunal finds that despite the policies, ARCOs, (Anti-Racism Policy Officers) investigations and recommendations, the teachers at Excelsior, including the ARCO-trained Mr Ryan and Mrs Ives, failed to recognise as racist, and/or to discourage as racist, the remarks made by the children at school on 11 March 1999 and in the library incident, and made by a child or children saying ‘ching chong chinaman’. Further, the Tribunal is satisfied that Excelsior did not comply with its anti-racism policy in respect of the said remarks and subsequently, did not implement the Department’s recommendations. Further, the Department failed to ensure that the ARCOs Mr Ryan and Mrs Ives were fulfilling their role and to monitor that its recommendations were acted upon.

35 The respondent challenged these findings on the basis that non-compliance with a policy or failure to implement Departmental recommendations, does not amount to a detriment. Again, this is a finding of fact that it was open for the Tribunal to make. The Tribunal’s finding, set out above, is a finding that A was subjected to a detriment by staff at the school by failing to adequately respond to the two incidents. However, it was not a finding that that detriment was “on the ground of race” as defined by s 7.

36 Differential treatment and causation. Having found a detriment, the Tribunal needed to decide whether the detriment occurred because of discrimination by staff at the school on the ground of A’s race. In other words, the fact that A is of Chinese background needed to be a factor which influenced the staff in their failure to respond adequately to the incidents. The Tribunal concluded at [99] that:

After careful consideration of all the evidence, the Tribunal is not satisfied that these failures amount to unlawful discrimination by the Respondent against the ZG children within Section 7 of the ADA. However, the Tribunal is satisfied that by these failures, the Respondent unlawfully discriminated against ZG ’s sons on the ground of race by failing to provide ZG ’s sons with the benefit of a safe learning environment and/or by subjecting them to the detriment of a learning environment where racism was tolerated. After considering all the evidence, the Tribunal finds that the Respondent unlawfully discriminated against the ZG children on the ground of race within Section 17 of the ADA.

37 The fact that the Tribunal was satisfied that the failures amounted to a detriment was insufficient to determine the matter. The Tribunal should have taken the next step and concluded that since the failures were not “on the ground of” A’s race as defined by s 7, there was no breach of s 17(2). It was not sufficient to find that the comments themselves were racist, because the students are not liable for discrimination under the AD Act. A finding of discrimination on the ground of race is one of significantly different magnitude from one of an inadequate response to racial harassment carried out by students. Applying the Tribunal’s findings to the provisions of the AD Act, the Tribunal should also have dismissed this part of the complaint as it found that it did not constitute direct race discrimination as defined by s 7 of the AD Act.

Suggested amendment

38 The way that s 17(2) is presently drafted, there will be no contravention where teachers simply fail to respond adequately to racist behaviour among students. The failure to respond adequately needs to be “on the ground of” the student’s race for it to be unlawful. Taken to its logical extreme, this means that an educational authority will not be in breach of the AD Act if it fails to provide any response to racist behaviour among students. Similarly, if it provides the same response regardless of the race of the students concerned, it will be very difficult to prove that that response was “on the ground of” race. To remedy this situation, the AD Act would need to be amended to make racial harassment unlawful, just as it makes sexual harassment unlawful.

Remedies

39 Given our conclusion that neither complaint has been substantiated, the ZG children are not entitled to a remedy. Nevertheless, we make two observations about the Tribunal’s decision on remedies. Firstly, the Tribunal made an order that the Excelsior Primary School apologise to ZG. As the school was not a party to the proceedings, the Tribunal had no jurisdiction to make an order against it: Italiano v Carbone & Ors [2005] NSWCA 177. Secondly, the Tribunal ordered that the Director General pay ZG the sum of $6,000 in part to compensate him for expenditure incurred in re-locating. As a general rule, when making an order for damages concerning a complaint made on behalf of another person or persons, the Tribunal may make such orders as it thinks fit as to the application of those damages for the benefit of the person or persons: AD Act, s 108(5). Damages cannot be awarded to a person, such as ZG, who merely brought the proceedings on behalf of his sons.

Orders

1. The Tribunal’s orders are set aside.

2. In substitution for those orders, the following orders are made:

a) The complaint of race discrimination by ZG on behalf of A is dismissed.

b) The complaint of race discrimination by ZG on behalf of A, B and C is dismissed.