Eagle Arts and Vocational College v State of New South Wales

[2018] NSWCATAD 147

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Eagle Arts and Vocational College v State of New South Wales [2018] NSWCATAD 147
Hearing dates:	10 May 2018
Date of orders:	16 July 2018
Decision date:	16 July 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Hennessy LCM, Deputy President
Decision:	1. That part of the complaint that alleges a breach of s 12 and s 49J of the Anti-Discrimination Act 1977 (NSW) is dismissed. 2. The application to dismiss that part of the complaint that alleges a breach of s 19 and s 49M of the Anti-Discrimination Act 1977 (NSW) is refused.
Catchwords:	PRACTICE AND PROCEDURE - summary dismissal – where NSW Educational Standards Authority cancelled registration of non-government school – where school complained NESA had breached Anti-Discrimination Act 1977 (NSW) – whether complaint lacks substance or should be summarily dismissed on some other ground
Legislation Cited:	Anti-Discrimination Act 1977 (NSW), ss 4, 7, 12, 19, 49J, 49M, 92 and 102 Associations Incorporation Act 2009 (NSW) Civil and Administrative Tribunal Act 2013 (NSW), s 55 Education Act 1990 (NSW), Div 2 Pt 7, ss 47, 59, 56 and 107 Education Standards Authority Act 2013 (NSW), ss 4 and 12(2)(c) Interpretation Act 1987 (NSW) Teacher Accreditation Act 2004
Cases Cited:	Alchin v Rail Corporation NSW [2012] NSWADT 142 Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 Kitoko v Sydney Local Health District [2017] NSWCATAD 209 Koowarta v Bjelke- Petersen (1982) 153 CLR 168 Langley v Niland [1981] 2 NSWLR 104 Murtough v NSW Bar Association [2011] NSWADT 243 Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 State of New South Wales v Whiteoak [2014] NSWCATAP 99
Texts Cited:	Registered and Accredited Individual Non-Government Schools (NSW) Manual (NSW Education Standards Authority, Updated July 2017) Macquarie Dictionary (online)
Category:	Procedural and other rulings
Parties:	Eagle Arts and Vocational College (Applicant) State of NSW - NSW Education Standards Authority (Respondent)
Representation:	Counsel: A McQuillen (Applicant) C Ronalds SC (Respondent) P Madden (Respondent)
File Number(s):	2018/00089888
Publication restriction:	Nil

REASONS FOR DECISION

Summary

1. Eagle Arts and Vocational College has complained that the NSW Educational Standards Authority (NESA) discriminated against it on the grounds of race and disability. NESA has applied to the Tribunal for the complaints to be dismissed without a hearing. The complaints relate in part to decisions by a delegate of NESA to recommend to the Minister for Education that he make certain decisions, the effect of which would be that the College would be closed. Education Act 1990 (NSW), ss 59 and 56. The College has summarised these decisions as being decisions about whether the College was complying with the registration requirements under the Education Act1990.

2. For the reasons which follow, I have decided to dismiss that part of the complaint that alleges a breach of s 12 and s 49J of the Anti-Discrimination Act1977 (NSW) (qualifying bodies). I have decided to refuse the application to dismiss that part of the complaint that alleges a breach of s 19 and s 49M (provisions of services).

Background

3. Non-government schools must be registered before they can operate and provide education to children. NESA is responsible for the implementation of the statutory registration scheme: Education Act: Div 2, Pt 7. The mandatory requirements for registration are set out in s 47 of the Education Act 1990. The Registered and Accredited Individual Non-Government Schools (NSW) Manual (the Manual) provides details about the legislative basis for registration and accreditation, the requirements and associated evidence of compliance and the application and assessment process.

4. On 22 November 2017 a delegate of NESA, the School Registration Committee, considered a report from an Inspector and the College’s response to that report. On the basis of that information, the Committee recommended to the Minister for Education that:

1. … the registration of Eagle Arts and Vocational College, Bligh Park and its campuses at Kincumber and Broken Hill for Years 9 to 11 be cancelled under section 59 of the Education Act 1990;

2. … the application for renewal of registration for Eagle Arts and Vocational College, Bligh Park and its campuses at Kincumber and Broken Hill for Years 8 and 12 be refused under section 56 of the Education Act1990.

5. The College complained to the President of the Anti-Discrimination Board on 5 February 2018 that NESA had discriminated against it on the ground of race and/or disability. On 3 April 2018 NESA affirmed its recommendations to the Minister.

6. Since these decisions were made, I understand that the College has applied to the Tribunal in its administrative review jurisdiction, for an administrative review of the recommendations: Education Act, s 107(1)(b) and (c). The effect of that application is that the Minister may not cancel the College’s registration or refuse to renew the registration until the Tribunal has determined those applications and has considered any contrary recommendation of the Tribunal: Education Act, s 56 and s 59.

Power to summarily dismiss

7. Section 102 of the Anti-Discrimination Act gives the Tribunal power to summarily dismiss a complaint. It provides that:

102 Tribunal may dismiss complaint

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

8. Section 92(1)(a)(i), (ii) and (b) provide that:

92 President may decline complaint during investigation

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

(a) the President is satisfied that:

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

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

…

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

9. The effect of these provisions is that the Tribunal has power to dismiss a complaint before a final hearing "if the complaint is frivolous, vexatious, misconceived or lacking in substance" or “if the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of the Anti-Discrimination Act” or "if the Tribunal is satisfied that for any other reason no further action should be taken". Section 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) also gives the Tribunal power to dismiss any proceedings at any stage if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance. As the powers in the NCAT Act are a sub-set of the powers in the Anti-Discrimination Act, there is no need to consider the provisions separately.

10. The College submitted that s 102 of the Anti-Discrimination Act was not available because the President of the Anti-Discrimination Board has accepted the complaints and completed her investigation of the complaints. Section 102 of the Anti-Discrimination Act and s 55 of the NCAT Act give the Tribunal powers to summarily dismiss a complaint in certain circumstances. The Tribunal’s powers are in addition to the powers of the President of the Anti-Discrimination Board. The Tribunal is not bound by the President’s decision not to dismiss a complaint. It follows that the fact that the President has accepted a complaint and finalised her investigation does not mean that the Tribunal must or should refuse an application for summary dismissal. Nor does it mean that the Tribunal has no jurisdiction to do so.

Test for summary dismissal

11. As a general proposition, a complaint should not be summarily dismissed except in the clearest of cases: Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91; Kitoko v Sydney Local Health District [2017] NSWCATAD 209 at [10]. The words "frivolous, vexatious, misconceived or lacking in substance" have been held to refer to the "insufficiency or to the absence of merit or factual basis for the allegations made in the complaint rather than to whether the complaint is one within the provisions of the Act at all": Langley v Niland [1981] 2 NSWLR 104 at 107.

12. In State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at [14] Ormiston JA stated that the term "misconceived" is commonly used by lawyers to mean "a misunderstanding of legal principle" and the term "lacking in substance" to mean "an untenable proposition of law or fact". That characterisation has been accepted by this Tribunal and its predecessor, the Administrative Decisions Tribunal in many cases: see Alchin v Rail Corporation NSW [2012] NSWADT 142 at [25] and [26].

13. Any facts which the College asserts, must be accepted for the purpose of the summary dismissal application: Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]; Kitoko v Sydney Local Health District [2017] NSWCATAD 209 at [9].

14. NESA has the onus of establishing that the proceeding should be dismissed without a hearing: Murtough v NSW Bar Association [2011] NSWADT 243 at [24].

Allegations of breaches of the Anti-Discrimination Act

15. The Anti-Discrimination Act makes discrimination on certain grounds unlawful. Those grounds include race and disability. But discrimination is only unlawful when the conduct relates to the particular aspects of public life covered by the legislation. The College alleges that NESA is a qualifying body and has breached s 12 (race) and s 49J (disability) of the Anti-Discrimination Act. Alternatively, the College alleges that NESA provides it with ‘services’ and has breached s 19 (race) or s 49M (disability) by either refusing to provide those services or by providing those services on certain terms.

Qualifying body?

16. Section 12 of the Anti-Discrimination Act makes it unlawful for a body which is empowered to confer, renew or extend an authorisation or qualification that is needed for or facilitates the practice of an occupation or profession to discriminate on the ground race:

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

(c) by withdrawing the authorisation or qualification or varying the terms or conditions upon which it is held.

17. Section 49J, which is in similar terms, relates to discrimination by a qualifying body on the ground of disability.

18. For any alleged treatment by NESA to be unlawful, the College must establish that NESA is:

1. “an authority or a body”;

2. which is empowered to confer, renew or extend an authorisation or a qualification;

3. that is needed for or facilitates:

1. the practice of a profession;

2. the carrying on of a trade;

3. or the engaging in of an occupation; and

4. NESA must have refused, cancelled etc. that authorisation or qualification on the ground of either race or disability.

19. NESA is a body corporate and a NSW government agency: Education Standards Authority Act2013 (NSW), s 4. It meets the description of “an authority or a body”.

20. The “authorisation” or “qualification” was said by the College to be “the determination by NESA, not only as to the requirements for registration but also the determination whether or not a school has complied with such requirements”. In my view this is an impermissibly broad interpretation of the terms “authorisation or qualification”. The authorisation or qualification in the context of these proceedings is registration of a school as a non-government school. Registration is a non-government school’s licence to operate.

21. NESA has functions in relation to the registration of schools, but it is not “empowered” to confer, renew, extend, withdraw or vary the terms of the registration of non-government schools. Only the Minister has that power. The powers NESA exercised under s 56 and 59 of the Education Act in relation to the College were the making of recommendations to the Minister. The exercise of those powers is not treatment conferring, renewing, extending, withdrawing or varying the terms of the registration of the College. For that reason, the complaint lacks substance to the extent that it alleges a contravention by NESA of s 12 or s 49J.

22. If that conclusion is not correct, and NESA is empowered to confer etc. registration of non-government schools, the third element that the College would have to establish is that registration is needed for or facilitates the practice of a profession or occupation. According to the College, it “needed” to be registered for the practice of teaching its students. Teaching is a “profession” and compliance with the requirements for registration facilitates the practice of that profession.

23. Alternatively, the College submitted that registration is “needed” to engage in an occupation. The occupation in this case was said to be “conducting the activity of providing education classes, facilities and other amenities for its students”. Finally, the College submitted that, registration “facilitates” the practice of teaching as a profession and/or engaging in the occupation of conducting the activity of providing education classes, facilities and other amenities”.

24. In my view, even if NESA did have power to confer, renew, extend, withdraw or vary the terms of the College’s registration, registration is not needed for, nor does it facilitate, the practice of a profession or the engaging in of an occupation. It is a licence for the College to operate. It does not confer any other authority or qualification on any person. I accept that a teacher employed by a non-government school will be unable to engage in the occupation of teaching at that particular school if the school’s registration is cancelled. But NESA has a separate power to accredit teachers under the Teacher Accreditation Act 2004: Education Standards Authority Act2013 (NSW), s 12(2)(c). The registration of the College is entirely separate from an individual’s accreditation as a teacher. Registration has no impact on the ability of a teacher or other person to practice their profession or engage in their occupation.

25. As the second and third elements of s 12 and s 49J are not satisfied in this case, the complaint lacks substance to the extent that it alleges a contravention by NESA of those provisions. Having reached that conclusion, it is not necessary to assess the merits of the claim that NESA has discriminated against the College on the ground race or disability in breach of either of those provisions.

Service provider?

26. Alternatively, the College submitted that certain conduct by NESA constitutes a refusal to provide services or the provision of services on certain terms. Section 19, which relates to race discrimination, provides that:

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.

27. Section 49M is in similar terms but relates to disability discrimination.

28. The services NESA were refused or provided on certain terms were said to be:

1. setting the regulatory and accountability requirements of the Education Act 1990 for non-government schools;

2. setting the curriculum and its delivery in schools;

3. registration and accreditation process which involves a dialogue between schools and personnel from NESA including inspectors;

4. appointing inspectors to assess whether a school complies with the requirements for registration and accreditation; and

5. approving a registration system of schools and the registration of non-government schools within approved registration systems.

29. The College appears to accept that there are legislative and other requirements to which it is subject, but submits that the NESA should modify those requirements in some way to conform with its “philosophy, ethos and practice”: See Manual, p 7. Even though NESA is discharging a statutory duty when it makes recommendations about the registration of non-government schools, the College submitted that it may be providing it with services at the same time.

30. The College submitted that the identification of the services which had been refused or the terms on which the services had been provided need to be identified but that those were matters that could be the subject of evidence at the hearing.

31. ‘Services’ are defined in s 4 of the Anti-Discrimination Act to include “services provided by a council or public authority”. NESA is a body corporate and a NSW government agency: Education Standards Authority Act2013 (NSW), s 4. IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 is High Court authority for the proposition that in maintaining a procedure for determining development applications a Council was providing a ‘service’. In State of New South Wales v Whiteoak [2014] NSWCATAP 99 at [246]-[248], Prof Chesterman (in dissent, but not on this point) summarised the conclusions of various Justices on that issue:

[246] In IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 (discussed above at [163]-[176]), three of the five judges constituting the majority in the High Court were of the opinion that in maintaining a procedure for determining development applications the respondent Council was providing a 'service'. At 23, Dawson and Gaudron JJ said: 'The word "services', in its ordinary meaning is apt to include the administration and enforcement by the City of Perth of the Planning Scheme.' Gummow J, having pointed out at 44 that there was 'no dichotomy here between the discharge of statutory functions and the provision of services to those seeking the discharge of these functions' , went on to say (at 44-45) that 'the Council, as executive organ of the City, was providing services whether it granted or refused a particular application for consent'. The opinion of one of the two dissenting judges was similar: see Toohey J at 28.

32. Professor Chesterman then drew the following conclusion at [248] on the significance of those rulings:

[248] The significance, in the present context, of these rulings by Dawson, Gaudron and Gummow JJ is that they demonstrate the following: (a) a formal process under which a governmental authority, exercising powers conferred by statute, makes decisions rendering individuals eligible to obtain specified benefits may constitute a 'service'; and (b) this may be the case even when many of these decisions deny such eligibility to the applicant.

33. While we make no ultimate findings in these proceedings, it is at least arguable that NESA exercises powers conferred by statute which mean that corporations applying for registration as a non-government school and corporations already registered, are eligible to obtain certain benefits. The ‘benefit’ in this case may be characterised as a recommendation for registration or a recommendation for re-registration, even though some of those recommendations may be to refuse or cancel registration. It follows that the complaint to the extent that it alleges that NESA is a service provider and has provided the College with services on certain terms, should not be summarily dismissed. That leaves two further matters that the College would have to establish to substantiate the complaint: whether the College is an “aggrieved person” and whether any treatment by NESA was on the ground of race or disability.

Is the College an “aggrieved person”?

34. NESA submitted that the College cannot be an “aggrieved person” as defined in s 7 of the Anti-Discrimination Act because an incorporated association cannot have a race or a disability. Race discrimination is defined in s 7. “Direct discrimination” is defined in s 7(1)(a) and “indirect discrimination” is defined in s 7(1)(b):

(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of race if the perpetrator:

(a) on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, 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, or

(b) on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate 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, or who have a relative or associate 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 49B, which defines disability discrimination, is in similar terms.

36. Treatment of a “person” is unlawful if it is done on the ground of an aggrieved person’s race or disability. A "person" includes an individual, a corporation and a body corporate or politic: Interpretation Act 1987 (NSW), s 21. The College is an incorporated association pursuant to the Associations Incorporation Act 2009 (NSW). In Koowarta v Bjelke- Petersen (1982) 153 CLR 168 at 236 Mason J suggested that a corporation may be able to make a complaint of race discrimination. However in IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 45, it was Gummow J’s view that a corporation comprising members who were all HIV positive was not capable of having a disability.

37. Even if NESA’s submission is correct, and a corporation cannot itself have a race or disability, the College’s alternative submission was that the discrimination in this case was on the ground of the race or disability of one or more of the College’s “associates”. The definition of race discrimination in s 7 and disability discrimination in s 49B, includes discrimination on the ground of the race or disability of an associate of the aggrieved person. An “associate of a person” is defined in s 4 to mean:

(a) any person with whom the person associates, whether socially or in business or commerce, or otherwise, and

(b) any person who is wholly or mainly dependent on, or a member of the household of, the person.

38. It is the first part of this definition that the College relies on in this case. The alleged treatment is said to discriminate against the College on the ground of the race and/or disability of one or more of its students.

39. The verb “associates” is defined as in the Macquarie Dictionary as:

verb (associated, associating)

–verb (t)

1. to connect by some relation, as in thought.

2. to join as a companion, partner, or ally.

3. to unite; combine: coal associated with shale.

–verb (i)

4. to enter into a league or union; unite.

5. to keep company, as a friend or intimate: to associate only with wealthy people.

40. The second and fifth definitions are relevant here. To substantiate its complaint, the College must be able to establish that one or more students are its “companion, partner or ally” or someone with whom it keeps company whether socially or in business or commerce. NESA submitted that it impermissibly strains the construction of the legislation to interpret an associate of a corporation as being a student of the College. There is some force in that argument. When the aggrieved person is an incorporated association, it may “associate” with individuals or other bodies. But the College’s students are the recipients of the educational services it provides. They are part of the College community.

41. The College’s submissions on this point, as presently framed, are not convincing. But it is not an untenable proposition of law or fact.

On the ground of disability or race

42. At the hearing, the College stated that it was not relying on direct discrimination. Rather, it cast the complaint as one of indirect discrimination as defined in s 7(1)(c) and s 49B(1)(b). To prove that NESA has breached s 19 or s 49M because NESA discriminated against it indirectly on the ground of the race or disability of its students, the College would have to establish that:

1. NESA refused to provide the College with services or provided those services on certain terms (the treatment); and

2. in carrying out that treatment, NESA required the College to comply with a requirement or condition;

3. with which a substantially higher proportion of persons who have an associate not of that race (Aboriginal) or that disability comply or able to comply;

4. being a requirement which is not reasonable having regard to the circumstances of the case.

43. The College did not address these issues in any detail. It did identify one requirement or condition as being required to keep records of attendance for its students. That requirement was said to be unreasonable because of the difficulties Aboriginal students and their parents have in communicating reasons for absenteeism. In addition, the College does not interfere with culturally appropriate absences such as attendances at funerals or accompanying relatives to court.

44. I understand the central point the College is making both in its written submissions and in the statement provided by its principal, Ms McIntosh, is that the requirements for registration are not in the best interests of many of its Aboriginal students and students with disabilities because, for example:

1. many students need basic numeracy and literacy tuition because they have missed out on primary schooling and adjustments have to be made at higher levels;

2. families and kinship groups need to be given the opportunity to participate in significant decisions made under the Education Act1990;

3. many students live in isolated rural communities and the College needs to provide transport for those students; and

4. the need for its students to learn practical skills such as driving a car to increase their chances of obtaining a qualification.

45. The gist of these submissions is that the College should not have to comply with all the registration requirements imposed in the legislation or in the Manual because of the cultural practices or circumstances of many of its students. A complainant “need not allege the relevant facts with the particularity of an indictment or of a pleading”: Langley v Niland [1981] 2 NSWLR 104 at 108. Nor does a complaint need to demonstrate a “prima facie case”: Anti-Discrimination Act, s 89(2). I agree with NESA’s observation that the College has now had many months to identify an arguable case and has failed to do so in a way which would enable NESA to fully understand the factual and legal basis for the complaint. Without a clear identification of the requirements or conditions allegedly imposed on the College by NESA, and each of the other elements listed at [42] above, it is not possible to assess the merits of the College’s complaint.

46. I decline to dismiss the complaint on the basis of the failure of the College to allege the relevant facts with particularity. A complaint should not be summarily dismissed except in the clearest of cases. I have attempted to identify the matters the College would have to prove if the complaint of discrimination in breach of s 19 or s 49M of the Anti-Discrimination Act is to be substantiated. If the College intends to continue with these proceedings, each of those matters will need to be addressed and clarified in accordance with any directions of the Tribunal.

Orders

1. That part of the complaint that alleges a breach of s 12 and s 49J of the Anti-Discrimination Act 1977 (NSW) is dismissed.

2. The application to dismiss that part of the complaint that alleges a breach of s 19 and s 49M of the Anti-Discrimination Act 1977 (NSW) is refused.

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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: 16 July 2018