Diri v Board of Studies, Teaching and Educational Standards

[2015] NSWCATAD 120

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Diri v Board of Studies, Teaching and Educational Standards [2015] NSWCATAD 120
Hearing dates:	9 April 2015 and 10 April 2015
Decision date:	15 June 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Lucy, Senior Member S Davison, General Member M O’Halloran, General Member
Decision:	The applicant’s complaints are dismissed.
Catchwords:	ANTI-DISCRIMINATION – Complaint of race discrimination in the provision of services and by a qualifying body – Direct discrimination – indirect discrimination
Legislation Cited:	Anti-Discrimination Act 1977 (NSW) Institute of Teachers Act 2004 (NSW) Board of Studies, Teaching and Educational Standards Act 2013 (NSW)
Cases Cited:	Wright v Commissioner of Police [2014] NSWCATAP 67 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Robinson v Department of Family & Community Services (Housing NSW) [2014] NSWCATAD 21 Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165 Waters v Public Transport Corporation (1991) 173 CLR 349 State of New South Wales v Amery (2006) 230 CLR 174 Australian Medical Council v Wilson (1996) 44 ALD 193 Amery v State of New South Wales (Director-General NSW Department of Education and Training) [2004] NSWCA 404
Category:	Principal judgment
Parties:	Tavenisa Diri (Applicant) Board of Studies, Teaching and Educational Standards (Respondent)
Representation:	Counsel: C Ronalds SC (Respondent) K Jones (Respondent)   Solicitors: T Diri (Applicant in person) Board of Studies, Teaching and Educational Standards (Respondent)
File Number(s):	1410094

reasons for decision

1. The applicant is a Fiji national. She has a Bachelor of Arts and a Postgraduate Diploma in Education from the University of South Pacific and a Master of Arts (Linguistics) from Macquarie University in Australia. She has also undertaken study in the United States of America.

2. In 2013, the applicant took steps to attain accreditation to teach in New South Wales. She applied to the NSW Institute of Teachers for a Statement of Eligibility to be Accredited as a Teacher (“Statement of Eligibility”). The Statement of Eligibility issued to her by the NSW Institute of Teachers indicated that she needed to complete an English language test to demonstrate proficiency in English before she would be eligible to be accredited as a teacher.

3. The applicant alleges that the NSW Institute of Teachers discriminated against her on the grounds of her race when determining her eligibility to teach in this State.

Legislative scheme for accreditation of teachers in 2013

4. In 2013, the Institute of Teachers Act 2004 (NSW) provided that a “new scheme teacher” must be accredited in order to be employed to teach in a school (s 29(1)). It was not disputed that the applicant was a “new scheme teacher.”

5. Under the legislative scheme which applied in 2013, a “teacher accreditation authority” was responsible for accrediting new scheme teachers (Institute of Teachers Act, s 30). A “teacher accreditation authority” was defined, in relation to a government school, as the Director-General of the Department of Education and Training or a person approved by the Director-General (Institute of Teachers Act, ss 3, 4(1)(a)). A teacher accreditation authority might, on application by a person who is a new scheme teacher, provisionally accredit the person or refuse to do so (Institute of Teachers Act, s 30).

6. The NSW Institute of Teachers was not a “teacher accreditation authority” in 2013. It had, however, the function of advising and assisting teacher accreditation authorities in accrediting persons under the Institute of Teachers Act (Institute of Teachers Act, s 7(2)(c)).

7. As part of its role of assisting teacher accreditation authorities, the NSW Institute of Teachers carried out an assessment of eligibility for accreditation for new scheme teachers seeking to gain accreditation. It assessed the higher education study completed by a new scheme teacher and, if satisfied that the teacher had completed the required study, it provided that person with a Statement of Eligibility.

Applicable policies and standards

8. The Australian Professional Standards for Teachers were approved by the Minister for Education on 27 October 2011, pursuant to s 19 of the Institute of Teachers Act.

9. The NSW Institute of Teachers’ policy entitled “Subject Content Requirements for Teaching in a NSW Primary or Secondary School (Abridged)” (“Subject Content policy”) provided for a person’s eligibility for accreditation to teach in a primary or secondary school in New South Wales in 2013. Eligibility depended upon completing one of the following qualifications:

1. “an undergraduate degree, and a graduate entry teacher education program (such as a master of teaching, graduate diploma in education); or

2. an undergraduate double degree program (such as a bachelor of commerce / bachelor of teaching); or

3. an integrated undergraduate program (such as a bachelor of education degree) which includes both subject content studies and teacher education.”

10. The NSW Institute of Teachers’ “Policy on the English Language Proficiency of Teachers for Provisional or Conditional Accreditation” (“Language Policy”) provided in 2013 that “teacher accreditation authorities have the right to be assured that applicants have the required English language proficiency or to seek an assessment of this through one of the accepted English language tests”. It also provided:

“An English language proficiency assessment is not required for applicants who have undertaken the full four years of required higher education study (or qualifications assessed as comparable) in English in either:

Australia, New Zealand, United Kingdom (England, Scotland, Wales and Northern Ireland), the United States of America, Canada or the Republic of Ireland.

(Note: These are the countries accepted under Australian migration policy as not requiring English language proficiency assessment).”

11. Finally, it provided that the tests which are accepted by the NSW Institute of Teachers and the required test results included the Professional English Assessment for Teachers (“PEAT”) with a result of Band A in each of the four skill areas.

The applicant’s application for accreditation

12. On 26 April 2013, the applicant submitted her academic records to the NSW Institute of Teachers as part of her application for a Statement of Eligibility.

13. On 3 May 2013, the NSW Institute of Teachers provided the applicant with a Statement of Eligibility. This confirmed her eligibility for accreditation as a teacher in New South Wales schools. The Statement of Eligibility informed the applicant that the qualifications assessed to determine her eligibility for accreditation as a teacher were the Bachelor of Arts and Postgraduate Diploma in Education attained at the University of the South Pacific. The Statement of Eligibility issued to the applicant also provided as follows:

“As you have gained the majority of your qualifications that are assessed for teaching in a country where English is not the main language, you will be required to demonstrate to your prospective employer your proficiency in English by satisfactorily completing an acceptable English language test. Details on this policy are provided at: [website address]. Your prospective employer is responsible for ensuring you satisfy the requirements of the Institute’s English language policy.

Upon satisfying the Institute’s English language policy and successful completion of an approved English language test as required by your employer, you will be eligible for Provisional Accreditation.” (original emphasis)

14. On the same day, the applicant emailed the NSW Institute of Teachers indicating that she was “deeply shocked” to be told that her English “is not good enough to teach in NSW” after having “graduated with a Masters of Arts degree in the English language” from Macquarie University. She requested a reconsideration of the assessment.

15. The NSW Institute of Teachers advised the applicant by email on the same day that it only assessed her qualifications and that she should contact her prospective employer regarding the PEAT test.

16. Further correspondence between the NSW Institute of Teachers and the applicant ensued and the applicant visited the offices of the NSW Institute of Teachers to discuss her situation. On 22 July 2013, the applicant wrote to the Manager of the NSW Institute of Teachers requesting him to “correct an error” in the Statement of Eligibility issued to her and to remove the requirement that she complete an English language proficiency test to demonstrate her proficiency in English.

17. On 24 July 2013, the applicant emailed the NSW Institute of Teachers requesting an exemption from doing the required English language test to prove her proficiency in the English language. In this email, she stated, among other things, that English was the main language of Fiji and that she had been teaching the English language in Fiji, the Czech Republic, the United States of America and other South Pacific countries for 35 years.

18. It appears from the documents before the Tribunal that the NSW Institute of Teachers did not respond.

19. On or about 30 July 2013, the applicant applied to the Department of Education and Communities for employment as a teacher in NSW public schools.

20. On 13 August 2013, an officer of the Department emailed the applicant, informing her that she was required to demonstrate her proficiency in English by satisfactorily completing the PEAT test.

21. On the same day, the applicant informed the Departmental officer that she had booked to do the PEAT test. Later that day, she received an email informing her that enrolments for the August PEAT test had already closed.

Complaint to Anti-Discrimination Board

22. On 14 August 2013, the applicant lodged a complaint of race discrimination at the Anti-Discrimination Board.

23. On the complaint form, the applicant complained that she had been “discriminated against on the grounds of my ethnicity and national origin by being required to demonstrate my proficiency in English by doing a $500 PEAT Test because I have a MASTER OF ARTS IN ENGLISH LANGUAGE from Macquarie University, here is NSW in 1993”. She alleged on the complaint form that the English language is the main language in Fiji and that the English language is her subject of specialization as an internationally-recognised scholar. She said that her indigenous Fijian ethnicity, her nation of origin and the colour of her skin were the only reasons why the NSW Institute of Teachers were refusing to recognise her Macquarie University Master of Arts in the English language.

24. The applicant annexed to her complaint a copy of the following records:

1. her academic record from Macquarie University showing completion of the Master of Arts in Applied Linguistics and a copy of the award of that degree in 1993;

2. a transcript showing that she had undertaken a unit at the University of Houston as part of a “Summer Visiting” plan;

3. her graduate record from the University of St Thomas in Houston showing courses completed in 1999 and 2000;

4. her transcript of academic record from the University of the South Pacific stating that she completed requirements for Bachelor of Arts (Literature & Language/ Education) and that that degree was awarded in 1987, and that she completed requirements for “Postgrad Dip in Education” and that that diploma was awarded in 1990.

25. The applicant also annexed other documents to the complaint, including correspondence with the NSW Institute of Teachers.

26. On 1 January 2014, the NSW Institute of Teachers was dissolved (Board of Studies, Teaching and Educational Standards Act 2013 (NSW), Sch 2, cl 2(1)). On the same day, the assets, rights and liabilities of the NSW Institute of Teachers immediately before its dissolution became the assets, rights and liabilities of the Board of Studies, Teaching and Educational Standards (that is, the respondent) (Board of Studies, Teaching and Educational Standards Act, Sch 2, cl 2(2)).

27. On 17 February 2014, a person, who was apparently a delegate of the President of the Anti-Discrimination Board, referred the applicant’s complaint to this Tribunal under s 93C of the Anti-Discrimination Act 1977 (NSW). The referral was made on the ground that the delegate was of the opinion that the complaint could not be resolved by conciliation.

APPLICANT’S CLAIM

28. In July 2014, the applicant filed points of claim and a summary of complaint. She identified three complaints against the respondent. These were:

1. direct discrimination in the provision of goods and services under ss 7 and 19 of the Anti-Discrimination Act,

2. indirect discrimination in the provision of goods and services under ss 12 and 19 of the Anti-Discrimination Act and

3. economic and non-economic loss as a result of direct and indirect discrimination under ss 7, 12 and 19 of the Anti-Discrimination Act.

29. In her summary of complaint and points of claim, the applicant identified a number of issues for the Tribunal’s determination. These included:

1. the legality or otherwise of the “Policy for English Language Proficiency for teachers for Provisional or Conditional Accreditation” which requires the qualifying body to assess the applicant’s proficiency in English based on her nation of origin, Fiji, instead of assessing it based on her more recent and more relevant records from Macquarie University and from the University of St Thomas and the University of Houston, Texas;

2. the legality or otherwise of the respondent’s discriminatory application of that policy leading it not to exempt her from the requirement to demonstrate her proficiency in English notwithstanding that she is qualified for exemption under the policy due to her Australian and American qualifications;

3. the legality or otherwise of excluding from assessment 67% of the applicant’s English language courses in Australia and the United States of America.

30. The applicant sought compensation of $100,000 for lost income and emotional suffering caused by the respondent’s conduct.

31. The scope of the applicant’s case was clarified to some extent during the course of the hearing. The applicant repeatedly stated that she was not challenging the lawfulness of the respondent’s policies, but rather the application of the respondent’s policies. On the second day of the hearing, in response to a question from the Tribunal, the applicant said that her case was confined to the issue of whether the respondent had applied its policies in a discriminatory fashion, and that her case was not about the lawfulness of the policies.

32. The applicant contended that the NSW Institute of Teachers had made “false and misleading statements” in the Statement of Eligibility it had issued to her, including that her qualifications were attained in a country where English is not the main language. These statements were false and misleading, in the applicant’s submission, because she had in fact obtained 100% of her academic qualifications as a teacher of the English language in the United States of America, and she had obtained 67% of her academic qualifications in the English language in Australia and the United States of America and 33% in Fiji.

33. The applicant also said that the NSW Institute of Teachers had discriminated against her by refusing to provide her with an “accurate, evidence-based assessment.” Her position was that the NSW Institute of Teachers was required to examine the subjects taken in the university courses she had completed, and not just look at the name of the relevant degrees or qualifications, in order to determine whether they were the equivalent of New South Wales qualifications. The applicant denied that she got the majority of her qualifications in Fiji (as the NSW Institute of Teachers had found) and said the Fiji qualifications were not equivalent to teaching qualifications from New South Wales. Rather, in the applicant’s submission, her only qualification in teaching is from the United States of America. She stated that she could not succeed in these proceedings if the Tribunal found that she gained her teaching qualifications from Fiji.

RELEVANT LEGISLATION

34. In April and May 2013, s 7(1) of the Anti-Discrimination Act relevantly provided:

“7 What constitutes discrimination on the ground of race

(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 …, 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

…

(c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, … comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person’s race if it is done on the ground of the person’s race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.”

35. Section 12(a) and (b) of the Anti-Discrimination Act provided:

“12 Qualifying bodies

It is unlawful for an authority or a body which is empowered to confer, renew or extend an authorisation or a qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation to discriminate against a person on the ground of race:

(a) by refusing or failing to confer, renew or extend the authorisation or qualification,

(b) in the terms on which it is prepared to confer the authorisation or qualification or to renew or extend the authorisation or qualification, or…”

36. Section 19 of the Anti-Discrimination Act provided:

“19 Provision of goods and services

It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race:

(a) by refusing to provide the person with those goods or services, or

(b) in the terms on which the other person is provided with those goods or services.”

CONSIDERATION

37. The applicant carries the onus of proof in these proceedings (see, for example, Wright v Commissioner of Police [2014] NSWCATAP 67 at [24]).

Race Discrimination in the Provision of Goods and Services

38. In order to establish a breach of s 19 of the Anti-Discrimination Act, the applicant has to establish that:

1. the NSW Institute of Teachers was a person who provided services;

2. the NSW Institute of Teachers refused to provide the applicant with services or provided services to the applicant on unfavourable terms; and

3. in doing so, the NSW Institute of Teachers discriminated against the applicant on the ground of race (either directly or indirectly).

Provision of services

39. The NSW Institute of Teachers was a corporation and thus a person (see Institute of Teachers Act, s 6(1)).

40. The respondent accepts that the NSW Institute of Teachers provided “services” and that it provided services to the applicant. It describes those services as being “the assessment of a candidate’s eligibility to be accredited as a teacher and the issuing of a Statement of Eligibility.” The applicant claimed that the service provided to her was “academic qualifications assessment.”

41. We accept the respondent’s description of the services provided by the NSW Institute of Teachers. In assessing a candidate’s eligibility for accreditation as a teacher, the NSW Institute of Teachers only assessed the candidate’s academic qualifications insofar as it identified whether he or she had the qualifications necessary for eligibility to be accredited. It was not conducting an assessment of the candidate’s qualifications per se.

Refusal to provide a service

42. The applicant submits that the NSW Institute refused to provide her with a service within s 19(a) of the Anti-Discrimination Act by “refusing to assess 100% of her qualifications in teaching and 67% of her qualifications in English in an impartial, transparent manner.” She also alleges that it failed to provide her with a service by refusing to exempt her from having to demonstrate her proficiency in English.

43. The evidence does not support the applicant’s claim that the NSW Institute of Teachers failed to provide a service by refusing or failing to provide a service in a particular way. The NSW Institute of Teachers clearly provided a service to the applicant when it assessed her eligibility to be accredited as a teacher and issued her with a Statement of Eligibility. The circumstance that it did not provide the service in the way in which the applicant would have liked it to have been provided does not mean that it refused to provide her with a service.

44. The evidence establishes that the NSW Institute of Teachers declined or failed to exempt the applicant from the requirement to demonstrate English proficiency. This is not, however, the refusal to provide a service. The services the NSW Institute of Teachers provided were assessing the applicant’s eligibility for accreditation and issuing a Statement of Eligibility. The applicant did not claim that the NSW Institute of Teachers provided a service of providing exemptions.

45. For these reasons, we dismiss the applicant’s claim that the NSW Institute of Teachers discriminated against her within s 19(a) of the Anti-Discrimination Act by refusing to provide her with a service.

Provision of service on unfavourable terms

46. The applicant’s alternative claim is that the NSW Institute of Teachers discriminated against her on the grounds of race in the terms on which it provided her with services (Anti-Discrimination Act, s 19(b)).

47. One of these services was the assessment of her eligibility to be accredited as a teacher. The applicant identified the differential treatment of her as being that the NSW Institute of Teachers did not provide an “accurate, evidence-based assessment” of her qualifications. The applicant contended that, if such an assessment had occurred, the NSW Institute of Teachers would have recognised that the Postgraduate Diploma of Education from Fiji, despite its name, was not in fact a teaching degree, because the units studied in the degree were non-teaching subjects. Further, she submitted that the NSW Institute of Teachers would have seen that the studies she undertook in the United States of America were teaching subjects, and that this should have been recognised as her teaching qualification in New South Wales.

48. Whilst the nature of the applicant’s case is not entirely clear, we also understand it to be that the unfavourable “terms” on which she was provided with the service were that the Statement of Eligibility failed to “exempt” her “from the $500 Professional English Assessment Test” even though her “Academic Records … provide evidences to prove that she qualifies for exemption.”

49. The applicant’s complaint was not that the Language Policy was discriminatory in exempting only persons with qualifications from certain countries such as Australia and the United States of America from the requirement to sit an English language test; rather, it was that the NSW Institute of Teachers did not properly assess her qualifications. In her view, if they had been properly assessed, it would have been apparent that she obtained her teaching qualifications from the United States of America and that she was therefore not required to undertake an English language test.

50. Neither party made detailed submissions about whether the alleged failure to provide an “accurate, evidence-based assessment” of the applicant’s qualifications, or the assessment on the Statement of Eligibility that the applicant would be required to demonstrate her proficiency in English, were “terms” on which the NSW Institute of Teachers provided services to the applicant. We accept that the way in which the NSW Institute of Teachers assessed the applicant’s qualifications was part of the terms on which it provided her with services. On one view, the assessment that she needed to undergo an assessment of her English ability was not a “term” of the service provided by the NSW Institute of Teachers; rather, it was potentially a “term” which governed or influenced the service to be provided by a teacher accreditation authority, if the applicant applied to that authority for accreditation. Ultimately, however, it has not been necessary to decide this question, because the applicant has not established all the other necessary elements of her case.

Direct race discrimination in the provision of services

51. In order to establish that the NSW Institute of Teachers directly discriminated against the applicant on the ground of race within s 19(b), the applicant must show that, on the ground of her race, the NSW Institute of Teachers treated her less favourably than in the same circumstances, or in circumstances which are not materially different, it treated or would have treated a person of a different race, in the terms on which it provided her with services (Anti-Discrimination Act, ss 7(1)(a), 19(b)).

52. It is not contested that the applicant is a Fijian national or that she is a member of a race as defined in s 4 of the Anti-Discrimination Act.

53. The applicant identified the comparator as being a teacher who obtained the majority of his or her academic qualifications in teaching in English from Australia and Fiji (“first comparator”), or a hypothetical non-Fijian person with the same qualifications as her in a comparable situation (“second comparator”).

54. Where the comparator is hypothetical, the questions as to “less favourable treatment” and “on the ground of race” may be answered as part of the same reasoning exercise: Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [65]; Robinson v Department of Family & Community Services (Housing NSW) [2014] NSWCATAD 21 at [42].

55. The applicant has not established that the NSW Institute of Teachers has treated her less favourably than it would have treated a comparator in assessing her qualifications, because she has not established that the NSW Institute of Teachers has assessed her qualifications differently from the way it would assess any other person’s qualifications.

56. The applicant’s claim that the NSW Institute of Teachers did not provide an “accurate, evidence-based assessment” of her qualifications was based upon the proposition that it was required to assess the content of each degree she completed or undertook, in order to determine whether the degree was in fact a teaching qualification. The NSW Institute was not required to do this, and the evidence indicated that it did not do this, either with the applicant or with anyone else. It was entitled to assess the applicant’s degrees at face value without assessing individual subjects.

57. The applicant’s transcript of academic record from the University of the South Pacific shows that she completed a Bachelor of Arts and a Postgraduate Diploma in Education at that University. Contrary to the applicant’s submissions, she did study teaching subjects in her Postgraduate Diploma in Education, such as advanced educational research. Consistently with its Subject Content Policy, the NSW Institute of Teachers assessed her teaching qualifications, which were relevant for accreditation, as being comprised of the Bachelor of Arts and Postgraduate Diploma in Education the applicant obtained from the University of the South Pacific.

58. To the extent that the applicant contended that the NSW Institute of Teachers should have considered her Masters of Applied Linguistics to be part of her teaching qualifications, this degree did not meet the requirements for accreditation under the Subject Content Policy and the NSW Institute of Teachers properly determined that this was not a teaching qualification.

59. The applicant did not complete a teaching qualification in the United States of America. She completed one subject at the University of Houston and several subjects towards an English as a Second Language qualification at the University of St Thomas. A letter written from a Certification Officer in the School of Education in the University of St Thomas indicates that, if the applicant had continued her studies, she could have counted all of her courses with a grade of B or better towards a Master of Education in English as a Second Language. However, she did not do so. Even if she had completed the degree, it would not count for accreditation in New South Wales under the Subject Content Policy.

60. The subjects studied by the applicant in the United States of America did not lead to teaching qualifications for the purposes of accreditation as a teacher in New South Wales. The NSW Institute of Teachers was not required to examine the content of these courses to determine whether it should consider the subjects she studied as part of her teaching qualifications.

61. Had the NSW Institute of Teachers decided not to treat the Fiji qualifications as teaching qualifications, as the applicant submitted it should have done, she would not have been eligible for accreditation as a teacher in New South Wales at all. This is because her other qualifications and courses of study were not teaching qualifications within the Subject Content Policy.

62. The other matter to consider is whether the NSW Institute of Teachers treated the applicant less favourably than either of the hypothetical comparators by providing her with a Statement of Eligibility which stated that she was required to undergo English language testing in order to become accredited. This statement was consistent with the NSW Institute of Teachers’ policies, which the applicant said she was not challenging; it is not part of her case that the policies should not have distinguished between persons with degrees from countries such as Fiji and countries such as Australia. This part of her case (that the Statement of Eligibility involved less favourable treatment) would only become relevant if she established that the NSW Institute of Teachers had treated her less favourably than a comparator by failing to conduct an “accurate, evidence-based assessment.”

63. While it is not strictly necessary to consider the application of the policies of the NSW Institute of Teachers to the comparators, we note that those policies would require the first comparator, having partly obtained teaching qualifications from Fiji, to undergo an English language test. The second comparator, being a non-Fijian with teaching qualifications from Fiji, would also have been required to sit such a test. This was confirmed in evidence given by Judith Page, Director, Teacher Accreditation, of the respondent. Accordingly, the applicant was not treated less favourably than either of the hypothetical comparators would have been treated.

64. We therefore dismiss the applicant’s claim of direct discrimination on the grounds of race in the provision of services.

Indirect race discrimination in the provision of services

65. In order to establish her claim of indirect race discrimination in the provision of services, the applicant needs to establish that:

1. the NSW Institute of Teachers imposed a requirement or condition upon the applicant;

2. the applicant did not comply or was unable to comply with the requirement or condition;

3. a substantially higher proportion of persons who are not of Fijian nationality comply or are able to comply with the requirement or condition;

4. the requirement or condition was not reasonable having regard to the circumstances of the case (Anti-Discrimination Act, s 7(c)); and

5. the discrimination occurred in the terms on which the applicant was provided with services by the NSW Institute of Teachers.

66. The applicant said she would not sit the PEAT test “on moral and ethical grounds and on principle.”

67. It also submitted that there was no evidence to suggest that the requirement or condition was imposed upon the applicant because of her race or that the applicant is unable to comply with it.

Imposition of requirement or condition

68. The applicant framed the condition or requirement imposed upon her as being that she demonstrate her proficiency in English by sitting the PEAT test.

69. The respondent denies that the NSW Institute of Teachers imposed the condition or requirement of demonstrating proficiency in English upon the applicant. It also submits that the NSW Institute of Teachers was not able to exempt her from that requirement, there being “no applicable exemption process within the terms of the Policy that can be applied to the applicant.” It said, further, that the applicant could have approached her prospective employer and applied for an exemption.

70. The words “requirement” and “condition” are to be interpreted broadly, albeit that the actual requirement or condition must be formulated with precision: Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165 at 168 per Dawson J and at 195-196 per McHugh J; Waters v Public Transport Corporation (1991) 173 CLR 349 at 393 per Dawson and Toohey JJ; State of New South Wales v Amery (2006) 230 CLR 174, Gummow, Hayne and Crennan JJ at 195 [63].

71. The NSW Institute of Teachers was not a body having statutory power to impose requirements or conditions upon accreditation. In May 2013, when the applicant applied for a Statement of Eligibility, the accrediting body was not the NSW Institute of Teachers, but rather the “teacher accreditation authority” (Institute of Teachers Act, s 21(1)(a)). That authority was, for persons such as the applicant who wished to teach in a government school, the “Director General” (Institute of Teachers Act, s 4(1)(a)). The teacher accreditation authority was empowered to determine whether or not to accredit a person as a teacher (Institute of Teachers Act, s 21(1)(a)).

72. The NSW Institute of Teachers assumed the role of conducting assessments of a candidate’s eligibility to be accredited as a teacher, without express statutory authority to produce statements of eligibility. It apparently did this consistently with its functions which included “to advise and assist teacher accreditation authorities in accrediting persons” and “to monitor the accreditation process across all schools” (Institute of Teachers Act, s 7(2)(c) and (d)). Once a teacher accreditation authority had decided to accredit a person, it was required to notify the NSW Institute of Teachers of that decision (Institute of Teachers Act, s 22).

73. Notwithstanding that the NSW Institute of Teachers did not have any statutory power to determine whether to accredit a person, we are satisfied that it imposed a requirement or condition upon the applicant, being that, in order to obtain accreditation to teach, she needed to successfully sit the PEAT test. As the applicant effectively submitted, this was a requirement imposed by the NSW Institute of Teachers as a matter of practical reality.

74. The language used in the Statement of Eligibility is language of requirement. It states that the applicant is “required to demonstrate to [her] prospective employer [her] proficiency in English by satisfactorily completing an acceptable English language test.” Evidence given by Judith Page, the Director of Teacher Accreditation for the respondent, indicated that the NSW Institute of Teachers held the view that it could not exempt her from this requirement and that it was bound by its own policy. We do not need to determine whether this view was correct; it is sufficient to note that it was held.

75. The applicant’s evidence was that, when she met with a representative of the Department of Education and Communities, she was told that the Department had no power to exempt her from the requirement to sit a PEAT test, and she would need to take this up with the NSW Institute of Teachers. This is consistent with the email of 13 August 2013 from the Department to the applicant, which adopts the language of the Statement of Eligibility provided to the applicant by the Department and states that she is required to demonstrate her proficiency in English by satisfactorily completing the PEAT test. Regardless of whether the Department’s view as to its powers was correct, the result was that the NSW Institute of Teachers’ assessment that a person was required to sit a PEAT test became, in practice, a requirement.

76. Thus, the evidence establishes that, in order to obtain accreditation as a teacher within a government school, it was necessary to comply with the requirement of successful completion of a PEAT test.

77. As a practical matter, then, the NSW Institute of Teachers imposed a condition or requirement in the Statement of Eligibility issued to the applicant that she had to successfully complete a PEAT test in order to be eligible for accreditation as a teacher.

Failure or inability to comply

78. The evidence established that the applicant communicated with the Department of Education and Communities about sitting the PEAT test in August 2013 and then applied to sit it, but applied too late to sit what was the next test at that time.

79. We accept that the applicant does not wish to sit the test, on principle, and that she has not done so. The evidence does not indicate that she is physically, mentally or intellectually unable to comply, either with the requirement to sit the test or with the requirement that she pass it.

80. We find that the applicant “does not” comply with the requirement that she sit a PEAT test within s 7(1)(c) of the Anti-Discrimination Act for the simple reason that she has not sat the test and refuses to do so. It is not necessary for her to establish that she has some immutable characteristic preventing her from complying with the requirement or condition: Australian Medical Council v Wilson (1996) 44 ALD 193, at 222 per Sackville J and at 207-208 per Black CJ; Amery v State of New South Wales (Director-General NSW Department of Education and Training) [2004] NSWCA 404, Beazley JA at [133].

Substantial proportion of other persons able to comply

81. The applicant has not established that a substantially higher proportion of persons who are not of Fijian nationality comply or are able to comply with the requirement or condition of passing a PEAT test.

82. There was very little evidence from the applicant concerning the ability of persons of different nationalities to comply with the requirement to pass a PEAT test. She did not make submissions as to this element of her case, submitting only that the requirement to demonstrate her proficiency in English was “a requirement with which a substantially higher proportion of persons not of that race – Fijian origin, comply or are able to comply.”

83. The applicant adduced evidence indicating that English was an official language of Fiji. She also claimed, in an email sent to the NSW Institute of Teachers and produced in evidence, that “English is the principal language of instruction at the University of the South Pacific” and “at the primary, secondary and tertiary institutions of learning in Fiji for the last 100 years.” This evidence tends to show that Fijian nationals would be able to comply with the requirement to pass a PEAT test and thus to negate the proposition that a substantially higher proportion of other persons would be able to comply.

84. The respondent produced some evidence concerning the pass rates of different national groups. Craig Stevens, Manager, Continuing Education and Testing at the University of New South Wales Institute of Languages, annexed to his statement a table showing pass rates for the PEAT test of persons from different countries in 2013. The table shows that 36.36% of Fijians passed the test in 2013 (out of 33 candidates), 50% of Australians passed the test (out of 2 candidates), 0% of New Zealanders passed it (out of 1 candidate) and also provides figures for many other countries. Particularly in circumstances where the applicant has not relied on the table to argue that a substantially higher proportion of non-Fijians comply with the requirement of passing a PEAT test, and where the number of candidates from each country is generally low, it is not possible for the Tribunal to infer that a substantially higher proportion of persons who are not of Fijian nationality comply or are able to comply with the requirement or condition of passing a PEAT test.

81. The applicant has therefore failed to discharge the burden of proving that the NSW Institute of Teachers indirectly discriminated against her on the ground of race in the provision of services and we dismiss that claim.

Discrimination as a qualifying body

86. The applicant also claimed that the NSW Institute of Teachers, being an authority or a body which was empowered to confer an authorisation that is needed for or facilitates the practice of a profession or the engaging in of an occupation, discriminated against her on the ground of race by refusing to confer the authorisation or in the terms on which it was prepared to confer the authorisation (Anti-Discrimination Act, s 12(a) and (b)).

87. The respondent accepted that the NSW Institute of Teachers was a “qualifying body” for the purposes of s 12 of the Anti-Discrimination Act. We are satisfied that the Statement of Eligibility was an “authorisation” needed for or facilitating the practice of a profession or the engaging in of an occupation within s 12 of the Anti-Discrimination Act.

88. The NSW Institute of Teachers did not refuse to confer an authorisation, as it provided the applicant with a Statement of Eligibility. The applicant therefore cannot succeed in her claim under s 12(a) of the Anti-Discrimination Act.

89. The terms on which the NSW Institute of Teachers conferred the Statement of Eligibility upon the applicant were that she was required to demonstrate her proficiency in English in order to become accredited as a teacher.

90. The applicant’s claims that the NSW Institute of Teachers’ failure to properly assess her qualifications obtained in Australia and/or the United States of America was discriminatory must fail for the reasons given in relation to her claim of discrimination in the provision of services. The applicant has not established that the NSW Institute of Teachers did not assess her qualifications according to its policies, or that it assessed her qualifications differently from the way in which it would have assessed those qualifications if she were not a Fijian national.

91. Accordingly, the applicant’s claims that the NSW Institute of Teachers contravened s 12 of the Anti-Discrimination Act are dismissed.

Procedural fairness and negligence claims

92. The applicant claimed that the NSW Institute of Teachers failed to provide her with procedural fairness when assessing her eligibility for accreditation as a teacher. She also alleged that it was negligent in its treatment of her. These are not claims the Tribunal has jurisdiction to consider in these proceedings.

Conclusion

93. For the reasons given above, the applicant has not discharged her onus of establishing that the NSW Institute of Teachers discriminated against her on the grounds of race under s 12 or s 19 of the Anti-Discrimination Act. Her complaints of discrimination are dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 15 June 2015