FP and FQ on behalf of Fr v Department of Education and Training; FP v Department of Education and Training

[2003] NSWADT 68

Set aside by Appeal: Set Aside on Appeal 6 November 2003
(Director General, Department of Education & Training v FP and FQ on behalf of FR (EOD) [2003] NSWADTAP 51

CITATION:	FP and FQ on behalf of FR -v- Department of Education and Training; FP -v- Department of Education and Training [2003] NSWADT 68
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT 1: FP and FQ on behalf of FR APPLICANT 2: FP RESPONDENT: Department of Education and Training
FILE NUMBER:	1. 011067; 2. 011022
HEARING DATES:	09/09/2002 - 11/09/2002, 13/11/2002 - 15/11/2002
SUBMISSIONS CLOSED:	11/15/2002
DATE OF DECISION:	04/17/2003
BEFORE:	Rice S - Judicial Member; Lau L - Member; Taksa L - Member
APPLICATION:	Race Discrimination - Education - Victimisation
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Wollongong City Council -v- Bonella & ors and Bonella & ors -v- Wollongong City Council (EOD) [2002] NSWADTAP 26 Peck v Commissioner of Corrective Services [2002] NSWADT 122
REPRESENTATION:	APPLICANT G Meadows, solicitor RESPONDENT T Lynch, barrister
ORDERS:	1. In matter number 011067 the complaint of FP and FQ on behalf of FR having been substantiated, the respondent is to pay the sum of $10,000 by way of compensation for loss and damage; 2. In matter number 011067, pursuant to s114(2) the applicants FP and FQ on behalf of FR shall pay the reasonable costs of the respondent on a party-party basis, relating to ; i. the costs thrown away for the listed hearing date of 11 September 2002 and ; ii. preparation of evidence in response to fresh evidence from the applicant advised to the respondent on and after 10 September 2002, in a sum to be agreed between the parties within 60 days of the making of these orders, failing which the costs to be paid will be assessed in accordance with the provisions of Division 6 of Part 11 of the Legal Profession Act 1987; 3. In matter number 011022 the complaint of FP, not having been substantiated, is dismissed pursuant to s113(1)(a).

1 For the reasons given below Mrs FP’s complaint of victimisation is not substantiated. This means the complaint is unsuccessful and is dismissed.

2 For the reasons given below the complaint on behalf of Ms FR of race discrimination is substantiated. This means the complaint is successful, and an amount of $10,000 is awarded as compensation for loss and damage.

3 The application by the Department of Education of Training for its costs on an adjournment and related preparation time is successful. This means they are entitled to their reasonable costs to that extent, as agreed or assessed.

4 FR is a minor. This decision will, in accordance with the normal practice of the Tribunal, be published on the internet. In the circumstances we have decided, on notice to and without opposition from the parties, to not refer to FR’s name or any other information which would lead to her being identified by anyone who does not already have knowledge of the circumstances. Accordingly she is identified as FR and her parents as FP and FQ.

COMPLAINTS

5 On 31 March 1999 the Anti-Discrimination Board received from Mrs FP and her husband FQ a letter complaining of

unlawful racial discrimination, harassment and unlawful racial vilification which we believe have been experienced by our 11-year-old daughter [FR] whilst she has been a pupil at public schools in NSW . . . we also wish to complain of victimisation.

6 It is apparent from the whole of the letter that it made four complaints against the NSW Department of Education of Training (‘the Department’):

• racial discrimination against FR
• racial harassment of FR
• racial vilification of FR
• victimisation of FP.

7 Ms FR is under the age of 18 years, and the three complaints relating to her were made by her parents, FP and FQ, on her behalf, pursuant to s88(2) of the Anti-Discrimination Act 1977 (‘the Act’). For ease of reference however, the complaint made on behalf of FR is referred to as ‘FR’s complaint’ in this decision.

8 After an investigation, the President of the Anti-Discrimination Board made a referral, pursuant to Section 94(1) of the Act, by letter dated 29 March 2001. The President referred to the Tribunal, for inquiry, a complaint alleging discrimination against FR on the ground of race in the area of education, and a complaint alleging victimisation against Mrs FP. Of the four complaints which had been made, the President referred only the first and fourth, and not the complaints of racial harassment and of racial vilification of Ms FR .

9 Points of Claim filed for FR and FP set out and provided particulars for all four complaints. In preparation for the inquiry the Tribunal raised with the parties the question of which of the four complaints were properly the subject of inquiry. Ms FR, through her legal representative, maintained that the Tribunal had jurisdiction in relation to the two further complaints.

10 The Tribunal sought clarification from the President as to which complaints had been investigated and referred. The President advised in writing that his referral on 29 March 2001 “refers the complaints of racial discrimination relating to [FR] and victimisation of [FP] ”. The President’s letter recounted how it had been only these two complaints which had been investigated.

11 The Tribunal proposed and the parties agreed that the extent of the Tribunal’s jurisdiction was to inquire into only the two complaints referred by the President: one by FR of racial discrimination and one by FP of victimisation.

12 Ms FR’s complaint of racial discrimination is that during term 1 of 1997, when she was enrolled at Kahibah Public School, she was discriminated against in the way in which her teacher managed the class, in the action the school took in relation to harassment to which she was subjected, and in the way in which the school recognised students’ achievements.

13 Further she complains that between April 1997 and December 1998, when she was enrolled at Charlestown South Public School, she was discriminated against by the school in the action it took in relation to bullying to which she was subjected.

14 Mrs FP’s complaint of victimisation is that she was denied teaching opportunities, and was isolated from other teaching staff, following her complaints that her daughter was being subjected to racial discrimination and vilification.

15 The complaints were made against the NSW Department of Education and Training, which is referred to in this decision as ‘the Department’.

MATTERS 011067 & 011022: DISMISSAL APPLICATION

16 On 16 May 2002, prior to the commencement of evidence, the Department applied under s111(1) of the Act for an order that both complaints be dismissed, on the ground that the applicants had consistently delayed in complying, or had failed to comply with, directions of the Tribunal over a period of ten months from 1 June 2001 to 4 April 2002.

17 Under s111(1) the Tribunal has the power to dismiss a complaint that is “frivolous, vexatious, misconceived or lacking in substance, or that for any other reason . . . should not be entertained”. The ground relied on by the Department would be covered by “any other reason [for which the complaint]. . . should not be entertained”.

18 The Tribunal refused the Application and the inquiry proceeded to the taking of evidence, commencing on 9 September 2002. The two complaints were listed for hearing together, and evidence was given in relation to both complaints.

LAW

19 Ms FR’s complaint is of discrimination on the ground of race. Section 7(1) of the Act provides that:

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, or
(b) 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 such 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.

20 Ms FR’s complaint of discrimination on the ground of race arises in the area of education, which is the subject of s17 of the Act:

(1) It is unlawful for an educational authority to discriminate against a person on the ground of race:
(a) by refusing or failing to accept the person's application for admission as a student, or
(b) in the terms on which it is prepared to admit the person as a student.
(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.

21 Section 17 is not concerned directly with the conduct of students, but rather with the conduct of “an education authority”. It was necessary to observe from time to time during the hearing, and it is appropriate to repeat now, that FR’s complaint concerns the conduct of the Department (through its officers: the teachers). In Ms FR’s complaint, conduct of students is relevant only to the extent that the complaint relates to the Department’s response to that conduct.

22 Mrs FP’s complaint is of victimisation, which is the subject of s50(1) of the Act:

It is unlawful for a person ( the discriminator ) to subject another person ( the person victimised ) to any detriment in any circumstances on the ground that the person victimised has:
(a) brought proceedings against the discriminator or any other person under this Act,
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,
(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or
(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

23 Ms FR was born in Korea. Her descent and national origin, within the definition of ‘race’ in s4 of the Act, is Korean. She was adopted as an infant by her parents FP and FQ.

24 Ms FR’s complaint relates to her time as a student at Kahibah Public School (‘Kahibah’), and her time as a student at Charlestown South Public School (‘Charlestown’). She was enrolled at Kahibah in year 4 for the first term of 1997. At the end of first term FR enrolled at Charlestown in year 4 for the remainder of 1997. She remained at Charlestown throughout 1998, in year 5.

25 Reference in the following paragraphs to ‘the applicant’ is a reference to Ms FR.

Kahibah – welcome to class

26 At Kahibah the applicant was taught by Ms Coombs. The applicant’s evidence is that on her first day at Kahibah she:

was seated apart from the other pupils in an isolated position. There were other seats available. No reason was given to me for being seated like this. I was the only pupil sitting isolated like this from the other pupils.

27 In her evidence the applicant describes the layout of the classroom, saying that the girls were seated in rows down one side of the class and the boys in rows down the other side of the class. She was seated at the end of a row of boys, near the teacher’s desk and on the opposite side of the room from the girls. She says that she was in this position for about three weeks and was then moved to sit with a group of girls. The applicant says that Ms Coombs did not appoint a “buddy” for her, or make any arrangements to ensure that she felt welcome or was shown around the school.

28 We heard no evidence from any other students. The only other evidence we heard was from Mrs Coombs.

29 Mrs Coombs has little direct recollection of the applicant’s being in her class in first term 1997. Her evidence is as to her “normal practice” in relation to various processes or situations. For example Ms Coombs describes her normal practice in relation to configuring and allocating the seating, and allocating a buddy to new students. Ms Coombs denies that she would ever configure the classroom in the way described by the applicant.

30 When the evidence of the applicant and Ms Coombs is in conflict in relation to this allegation, we prefer the evidence of the applicant. The applicant gave confident and direct answers from her recollection while Ms Coombs’ answers were of a more generalised nature, making assertions as to what would have been the case based on her experience rather than being able to recall particular incidents. The matters in issue clearly loomed much larger in the applicant’s experience and memory than in Ms Coombs’, and on this point we make no criticism of Ms Coombs’ honesty as a witness. It is simply our view on having heard the evidence from the witnesses that the applicant’s is the more reliable account in relation to the detail of the incidents in question. We are satisfied that Ms Coombs’ management of the seating arrangements and the allocation of a ‘buddy’ occurred as alleged by the applicant.

31 It was submitted for the applicant that “it is reasonable to infer [the seating arrangement] was on the grounds of race”. There is no evidence available to us on which we could infer that the applicant was treated less favourably by Ms Coombs than a person not of her race would have been treated in the same circumstances. The applicant’s race as a reason for the seating arrangement and buddy allocation is only as likely in the circumstances as other explanations, such as those offered by Ms Coombs.

32 Whatever might be said about the way Ms Coombs went about welcoming a new student into the class and managing the seating and relationships among students under her care, we are unable to say that Ms Coombs’s treatment of the applicant was any different from the way in which she would have treated another girl not of the applicant’s race arriving in the classroom for the first time.

33 We are not satisfied that the arrangements for seating in the classroom and for allocating a buddy at Kahibah were less favourable treatment of the applicant or that, if they were, it was on the ground of her race.

Kahibah – response to harassment

34 The applicant gave evidence that a student called Wendy spat on her during line-up before the morning assembly. She says she went to report this to Ms Coombs but was told to go back and wait in the line. She says she did so and then, after assembly, she reported to her mother who was teaching at the school at the time.

35 Ms Coombs recalls the spitting incident. She denies having sent the applicant back to the line-up, and says that she was not aware of the incident until she noticed that the applicant had not gone to the class after line-up. She recalls that it was her view that it had been Wendy’s intention to spit on the applicant, and that in fact “the worst of” the spit landed on Joshua.

36 Whatever the exact sequence of events, and the extent to which spittle landed on the applicant, the complaint is that Ms Coombs took no action in relation to the incident, and that her failure to respond was on the ground of the applicant’s race. The applicant concedes that the student welfare co-ordinator did take action in relation to the incident, speaking to both her and Wendy and requiring Wendy to apologise.

37 While evidence was led of a student who was said to be a ‘comparator’ for purposes of assessing whether the applicant was subjected to less favourable treatment, it was conceded for the applicant that the circumstances in which the “comparative” student was disciplined were significantly different from those relating to the spitting incident. Nevertheless it was contended that the manner in which the applicant’s complaint of spitting was dealt with by the school was discriminatory on the ground of the applicant’s race. The concession simply moves the Tribunal from the actual into the hypothetical when considering a comparator.

38 The evidence concerning the spitting incident and the manner in which it was responded to was sufficiently uncertain for us to be unable to make a finding on balance as to how Ms Coombs responded to the spitting complaint. If the applicant’s version is to be accepted, there is in any event no evidence available to us on which we can reasonably infer how Ms Coombs would have treated a person not of the applicant’s race in the same circumstances. Again, whatever might be said about the way in which Ms Coombs dealt with the situation, there is no evidence on which we could make a finding that on that occasion she treated the applicant less favourably on the ground of her race on that occasion.

39 A further dimension of the complaint that the Department discriminated in its response to the harassment of the applicant relates to Ms Coombs’ allocation of car seating for an excursion.

40 The applicant complains that Ms Coombs, aware of a request from the applicant’s mother that that her daughter not be seated with Wendy after the spitting incident, nevertheless put them together in a car for an excursion. We heard evidence not only from the applicant and Ms Coombs, but also from the applicant’s father, FQ, who was driving the car on the occasion. We are satisfied that it was the way the circumstances unfolded, rather than any conduct on the part of Ms Coombs, that resulted in the applicant’s father being asked, and his agreeing, to carry Wendy in the car with the applicant. The evidence of the applicant’s father is consistent with that of Ms Coombs in this regard.

41 We are satisfied that there is a complete explanation for the incident which precludes any consideration of less favourable treatment on the ground of the applicant s race.

Kahibah – recognition and awards

42 The applicant alleges that she received no awards during assembly in the term she spent at Kahibah, even though other pupils from her class did. She says that in the last week of term 1 Ms Coombs gave her several awards all of which were undated, saying “here are some awards I never gave you”. The applicant did not elaborate on this allegation in her oral evidence nor was the allegation responded to by Ms Coombs.

43 Assuming that Ms Coombs did do as the applicant alleges, there is no evidence of a pupil not of the applicant’s race being treated differently in the same circumstances, nor any evidence on which we can infer that a pupil not of the applicant’s race would have been treated differently in the same circumstances. There is no evidence of any actual comparator.

44 Dealing with a hypothetical comparator, there is no evidence before us that enables us to infer how Ms Coombs would have dealt with children not of the applicant’s race in the same circumstances. While the delay in and manner of providing the awards to the applicant begs some explanation, there is no evidence on which we can say that her race was a ground for conduct. The applicant does not say, and presumably cannot say, that she was the only student who was treated in this way by Ms Coombs.

45 We are not satisfied that the manner in which awards were given to the applicant at Kahibah was less favourable treatment of her on the ground of her race.

CHARLESTOWN

46 At Charlestown the applicant was in year 4 for the balance of 1997, and in year 5 during 1998. The applicant’s evidence is that on specific occasions she was treated less favourably on the ground of her race: when the inter-school debating team was selected, and when students were selected from the band to play at school assembly. Further, her evidence is that the school responded in a discriminatory way to the bullying to which she was subjected.

Charlestown – debating

47 In final submissions for the applicant the selection of the debating team was not relied on. We agree that this concession is appropriately made. The evidence shows that selection of the debating team was made according to criteria in which the applicant’s race was neither directly nor indirectly a consideration.

Charlestown – school band

48 We heard evidence that the applicant was never selected by the responsible teacher, Mr Frith, to play at assembly as other students were from time to time.

49 The only evidence we heard of the manner in which students were selected to play was from Mr Frith. We are satisfied on the evidence that we heard that the applicant was not subject to less favourable treatment. There is no evidence that the way in which she was treated was on the ground of her race.

Charlestown – response to bullying

50 At Charlestown in 1997 and 1998 the applicant was the subject of bullying by girls in her class. So too were other girls in the same class – bullying was a notable phenomenon that year, more than was usually the case among girls of that age, in the experience of Mr Frith, the school principal.

51 We accept that the applicant was as well the “beneficiary” of bullying in the way that term is used by Mr Frith: while she did not bully other students, the applicant was at times allowed in as a member of a group of girls other members of which subjected students to bullying.

52 There is no doubt that both Mr Frith and the applicant’s teacher during 1998, Ms Jones, were aware of the bullying behaviour among the girls, and took steps to address it. Among steps taken by the school, through Mr Frith and Ms Jones, were: Mr Frith’s personal investigation of allegations of bullying and his one-to-one discussion with girls involved in allegations of bullying, Ms Jones’s use of skills-training workshops according to a program selected by the school, the conduct of friendship support programs, lesson programs in the personal development program under the Health PD syllabus, the engagements of an itinerant support teacher, use of video programs, conduct of a bullying seminar for teachers, and use of a literacy-based approach to bullying based on materials from the seminar.

53 This extensive range of measures to address bullying reflects the extent of the phenomenon and the appropriate seriousness with which the Department responded.

54 In submissions for the applicant, a ‘benefit’ which was said to have been denied her was that of having her bullying complaints investigated. This Tribunal cannot, in the absence of any evidence, impose an obligation on the Department to confer such a benefit and then fault the Department for not having provided it. The Tribunal can however make findings on what the evidence establishes that the Department clearly did do, and that was: provide access to a wide-ranging response to bullying.

55 The evidence satisfies us that a ‘benefit’ within the meaning of s17(2)(a) of the Act that the Department provided to the students at Charlestown in 1998 was access to an effective program of anti-bullying measures.

Access to the benefit

56 In relation to the school’s provision of this benefit, the Department submitted that the school had “attempted to address the situation of all the girls in that group regardless of their roles through classroom lessons, through the itinerant behaviour teacher program” (etc). It is precisely the “sameness” of the way in which the benefit was conferred which gives cause to consider whether FR was discriminated against on the ground of her race: was the anti-bullying program which was available to everyone in any way less available to FR on the ground of her race?

57 The applicant’s complaint is that her access to that benefit was denied or limited. In the Amended Points of Claim it was alleged that at Charlestown the applicant was subjected to bullying but that “no or no effective action [was] taken”, that is, that the she was denied or had limited access to the Department’s “[attempt] to address the situation of all the girls”. The applicant alleges that the denial or limitation of access to the benefit was on the ground of her race.

58 It is apparent from the list of topics discussed during the Itinerant Teacher Intervention that race was not an issue covered when discussing bullying. In a memo dated 23 October 1998 the itinerant support teacher, Ms Lindsay, provided a list of “all the topics discussed during the recent intervention for a year 5 class as Charlestown South Public School”. She lists 13 topics, saying that “all of these areas have been previously addressed by Mrs Jones, the class teacher. This intervention was mostly a revision of friendship skills and bullying behaviour to reinforce Mrs Jones’ work”. None of the topics refers to race, racism, or race-based behaviour.

59 Mr Frith and Miss Jones concede that race was not addressed as a possible ground for bullying in any of the bullying programs that were undertaken. This is consistent with their view, which is discussed in more detail below, that race was not in fact a concern that needed to be addressed when addressing bullying among year 5 girls at Charlestown in 1998. The only exception to this, and it is a very limited one, is Mr Frith’s recollection, in answer to a question for the Tribunal, that “I think I may have continued in my discussions with them [the girls] on the line of racism as an example of something that people might use to put somebody down”.

60 The evidence satisfies us that the school’s anti-bullying measures did not address the issue of race. To the extent that there was the prospect of race-based bullying, the measures would be of limited or no effect – a person who faced the possibility of race-based bullying would have limited or no access to the benefit of an effective anti-bullying program.

61 Among year 5 girls at Charlestown in 1998, therefore, a condition of a student’s receiving the full benefit of an effective program of anti-bullying measures was that the student not be at risk of race-based bullying. This condition or requirement was not explicit. It is however apparent on the evidence that it was a condition or requirement of a student’s access to the benefit which in fact existed, and it is necessary that the Tribunal identify and articulate it (Wollongong City Council -v- Bonella & ors and Bonella & ors -v- Wollongong City Council (EOD) [2002] NSWADTAP 26 and the authorities cited there at paras 27-30).

62 The requirement was that, to receive the full benefit of an effective anti-bullying program, a student’s race could not be an actual or possible factor in their being subjected to bullying. This was a requirement with which a substantially higher proportion of students in year 5 at Charlestown in 1998 who were not of the applicant’s race was able to comply with. The evidence is clear that the applicant was the only child with an Asian background in the class, which in our view is the appropriate ‘pool’ within which to calculate the proportions. Even if the pool was the entire school, the evidence shows that the applicant was in a very small minority of children with an Asian background in the school.

63 The question of whether the applicant was subject to the requirement arises only if her race was an actual or possible factor in her being subjected to bullying.

64 The fact that the applicant is of a minority race is itself some indication that she faced the possibility of race-based bullying. Further evidence is that she was in fact the subject of race-based taunts in late 1997. Her evidence is that two girls “used to taunt me with words like ‘You have funny Asian eyes and you have a funny nose’. At the same time they would pull the sides of their eyes up and they would follow me around”.

65 We are satisfied that the applicant was a student whose race was an actual or possible factor in her being subjected to bullying. She was therefore unable to meet the requirement for access to the full benefit of an effective anti-bullying program.

A reasonable requirement?

66 The remaining issue is whether the requirement was a reasonable one in the circumstances. If it was, then its application to the applicant was not unlawfully discriminatory.

67 It was submitted for the Department that the school’s not addressing race as a possible ground for bullying was reasonable. It was submitted that the teachers did consider the possibility but that it did not appear to them to be a ground on which the applicant was bullied. It was submitted that the view formed by the teachers was that the bullying the applicant experienced was not different in kind or degree from that experienced by other students of different racial backgrounds, and that it did not appear to the teachers therefore that race was an issue.

68 In reply for the applicant it was submitted that to disregard race as a possible ground for bullying was unreasonable when the teachers were aware of a history of overt racist behaviour, and aware of concerns persistently expressed by her mother, FP, that racism was a cause for the bullying of the applicant.

69 Mr Frith agrees that the applicant was the only person of Asian-appearance in her class. He recalls that on enrolling the applicant at Charlestown South in 1997 the applicant’s mother told him of her concern that the applicant was Korean. He recalls that her mother told him of a race-based incident having taken place at a previous school. Mr Frith says he told the classroom teacher at the time of the concern that FP had for he daughter.

70 Mr Frith recalls being told by FP, in term 4 of 1997, of the incident in which the applicant “had been mocked and name-called about her Asian appearance”. Mr Frith addressed the applicant’s class “to the effect that racial name calling and other similar behaviour was not acceptable to the school”.

71 Mr Frith agrees that FP sometimes raised, as an issue for him to consider, that the applicant was Korean. He recalls discussing with Mrs Jones the matters raised with him, specifically FP’s concerns about the applicant’s racial background. He recalls FP’s reporting to him a comment made by one of the other parents at a netball game. Mr Frith is unable to recall exactly what it was that FP related, but recalls that the comment reported was one made in relation to the applicant’s race.

72 It is clear from the evidence and correspondence that from time to time during 1998 the applicant’s mother raised bullying as an issue to be addressed by the school, specifically the bullying of her daughter. There was some argument in the proceedings as to whether and to what extent FP raised bullying on the ground of race as an issue to be addressed by the school.

73 Whether and to what extent FP identified race as a possible ground for bullying is in our view only of some relevance to what is in issue in these proceedings. In issue is whether the Department discriminated against the applicant on the ground of her race in the manner in which they responded to the phenomenon of bullying. Even if FP had not identified a racial basis for the bullying, the school was aware from its own experience of a history of race-based conduct directed towards the applicant, was aware of a specific incident of race based conduct on which the principal had acted in late 1997, and was aware that the applicant, alone among the girls who were subject to bullying, was of Asian appearance. Ms Jones does in fact recall FP raising the possibility of race as a ground for bullying on at least one occasion.

74 Against these indications to the school that race should be considered as a possible ground for bullying of the applicant, Mr Frith described to us the grounds which, in his view, showed that the actual basis of the applicant’s being subject to bullying was other than race.

75 In his evidence he said that his “belief was that [FR] was not being bullied because she was Korean. She was being bullied because she didn’t fit the mode”. He described the applicant’s tendency to dominate conversations with fellow students. He described the applicant’s habits and mannerisms, the way she conducted conversations with her friends, the things she said. He says that he saw the applicant’s situation as a problem that “related to the relationship between [FR] and the other girls”. He says that he recalls hearing no reference being made to race in the discussion between the children during 1998.

76 Mr Frith describes in generic terms the kind of conversation he had with FR and the other girls regarding name-calling. He says that “the first and standard answer that goes out to kids when people report name-calling is, “well just ignore it and hopefully they’ll cease the behaviour”. He says that the “gist” of his conversations with all of the girls was about being more inclusive.

77 Mr Frith agrees that he did not regard the applicant’s race as a significant consideration in his assessment of the reasons for her being bullied. He agrees that his assessment was that race was not a significant ground for the bullying.

78 Mr Frith’s own judgement went so far as to doubt the race-based nature of the ‘name-calling’ incident in late 1997. Although the incident prompted him to speak to the class about racial vilification, Mr Frith says in his evidence that he had formed the view that the name calling was not in fact race-based. He says that it seemed to him “that if they were going to do something like that they would have talked about the skin colour or something else that was more obvious”.

79 Mr Frith says that Mrs Jones believed that the applicant was becoming alienated from the girls “because of the external things that were going on beyond the school between the parents”.

80 In 1998 Mrs Jones taught the applicant in year 5. She says that she was unaware of the applicant’s having been subject to a race-based comment in 1997, and that until these proceedings she had been unaware that in 1997 Mr Frith had addressed the year 4 class in relation to race-based behaviour.

81 Mrs Jones does not recall having been alerted by Mr Frith to racial abuse or race-based comments being an issue in the school during 1998, but she does recall the applicant’s mother raising the possibility that some of the behaviour that was affecting the applicant in 1998 may have been based on the applicant’s race. Mrs Jones in her evidence agrees with the proposition that the applicant’s race could have been a reason for which she was subject to bullying, but says simply, “I was never ever aware of it”. She agrees that the applicant’s race did not occur to her as a reason for the bullying. She did not take FP’s raising of the possibility of race as a complaint in her capacity as the designated Anti-Racist Contact Officer (ARCO) in the school.

82 Mrs Jones says that she was unaware that the applicant had any special needs, or that any special considerations applied in relation to the applicant and consideration of how she was bullied. She says in relation to the possibility that race was a ground for the bullying “the children were always very good at hiding this from you . . . the possibility was always there that it could have happened, but I didn’t see it”. Mrs Jones says that she didn’t “target anyone specifically - and that would have been really, saying, you know, ‘this child here could be bullied and we can’t let that happen’”.

83 Mrs Jones’ evidence is that she watched for a sign that race was part of the problem for the applicant but did not see it.

84 Clearly there were other factors that could have gone towards explaining the way the applicant was treated, and there was bullying taking place between girls of the same race which was clearly not race-based. But we do not accept that experienced teachers, as both Mr Frith and Mrs Jones were, could, in the face of the recurring indicators of the possibility of race being a case for the applicant’s being bullied, not take account of that possibility in the steps they took to address bullying.

85 It was acknowledged in submissions for the Department “that the raising of race as a possibility certainly required [the Department] to consider it”. It was then submitted that the Department, through its teachers, did so. In our view the evidence of the teachers shows that they were aware that the issue of race had been raised, but that, on the basis of their observations of what occurred, they dismissed it. Mrs Jones said that the experience that the applicant was having “didn’t appear to be different in any way and [was] not accompanied by any other conduct which might signify racist motives for what was occurring”.

86 Dismissing the possibility of race as the ground for behaviour by reference only to the absence of visible signs that might signify racist motives, in the face of the indicators and concerns of which she was aware, does not in our view amount to a reasonable consideration of the possibility of race for bullying.

87 Similarly it was acknowledged by the Department in submissions that “the possibility of race as a motive . . . ought to have caused the Department to reflect on what was happening and why it was happening”. It was submitted that the evidence is the Department did so. As we have said, the evidence does not satisfy us that it did so.

88 In our view it is unreasonable for teachers of their experience to rely solely on the presence or not of explicit race-based terms as an indicator of race-based behaviour when previous incidents, the parents’ concerns, and the obviousness of the applicant’s race, were reasons to consider race as a ground for the conduct even in the absence of explicit racial epithets. It was unreasonable for Mr Frith to dismiss the possibility that the comment directed to the applicant was based on her race because the comment did not accord with his expectation of what would constitute a race-based comment.

89 The evidence satisfies us that the school, principally through Mr Frith and to an extent to Ms Jones, was consistently given reason to consider race as a possible factor in the bullying that was taking place at Charlestown South Public School in March 1998. Although it is submitted for the Department that the teachers did in fact do so and, after deliberation, came to the view that it was not a factor, there is almost nothing in the evidence from either Mr Frith or Mrs Jones that there was such a conscious exercise on their part. Rather, the evidence shows us that they were aware on the one hand of the possibility of race being a factor, and they formed their own view on the other hand based on their own observation that there were other factors which explained the bullying. If, as was submitted, the analysis of the teachers did in fact involve a considered rejection of the possibility of race as a basis for bullying, then we are satisfied that the evidence shows such a conclusion to have been unreasonable.

90 We are satisfied that the possibility of the applicant’s being subjected to race-based bullying was made known to Mr Frith and Mrs Jones. Their discounting of race as a possible ground for bullying was, in the face of what they knew and were told, unreasonable. The absence of any regard to the possibility of race as a ground for bullying in the provision of anti-bullying programs, and the consequent requirement that a student’s access to the full benefit of an anti-bullying programs was dependent on the student not facing the possibility of race-based bullying, was unreasonable.

91 How could experienced teachers unreasonably fail to consider the possibility of race as a basis for bullying? There is no evidence on which we could begin to ascribe racist motives to the teachers themselves. There is no evidence that they were motivated by race in their conduct. It is however clear to us, from our observation of the witnesses in their giving evidence and the manner in which race was dealt with as an issue in the school, that the teachers were uncomfortable with having to deal with race as an issue, and were uncertain as to how to do so.

92 The submissions made for the applicant reflected the Tribunal’s own perception during the course of evidence: we noted the effect that the mention of “race” had on the manner in which both Mr Frith and Ms Jones presented in the witness box. Mr Frith was an impressive, confident and engaging witness whose manner markedly became defensive and apprehensive as soon as questions turned his attention to the issue of race at the school. Similarly Ms Jones responded defensively to questions regarding race.

93 We agree with the submission for the applicant that Mr Frith “was extremely concerned to deny the possibility of racism in relation in the particular incidents. He appeared . . . to be quite defensive and Mrs Jones similarly [appeared] to be defensive, on the point of racism, although they were not being accused directly of being racist in what they had done in the sense that they had done something overtly racist themselves. In other aspects . . . they were apparently frank and open, if nervous”. The witnesses’ response to questions on the relevance of race to matters in the school indicates to us their awareness of race as an issue but, at the same time, their unwillingness to address it, or a fear of doing so.

FINDINGS

94 The Department, through the school, provided a benefit to students: a wide-ranging response to bullying. That response did not address race as a possible basis for bullying. A student’s access to the full benefit of the school’s bullying response was conditional on the student’s not being subject to race-based bullying.

95 That condition was one with which the applicant was unable to comply, and with which a substantially higher proportion of people not of her race, in her class and in her school, were able to comply. Consequently, the applicant’s access to the benefit was limited.

96 The condition was not one which was reasonable having regard to the circumstances.

97 Accordingly, the Department unlawfully discriminated against the applicant by limiting her access to a benefit provided by it.

COMPENSATION

98 In relation to a substantiated complaint of race discrimination, the Tribunal may order the Department to pay the applicant damages not exceeding $40,000 (s113 ADA).

99 The Tribunal is able to make an order for the payment of money only “by way of compensation for any loss or damage suffered”. The Tribunal is not empowered to make an order for payment of money which reflects the seriousness of the unlawful conduct. Consequently the only considerations we have regard to are those relating to the effect on the applicant of the limiting of her access to the benefit.

100 We heard no evidence of the nature or extent of the loss or damage the applicant suffered as a result of not having access to the full benefit of an effective anti-bullying program at the school. We know that the bullying she was subjected to caused her to be “upset” from time to time, and that at times she was relieved at being kept home from school because it reduced her exposure to bullying.

101 We accept that an anti-bullying program is unlikely to eradicate bullying. Further, we accept the evidence that the bullying in year 5 in 1998 was a particularly severe. Nevertheless, a program which addressed race as a possible ground for bullying would have reduced by some degree the extent to which the applicant was subject to bullying and therefore to the upset it caused her.

102 The school was aware from at least the fourth term of 1997 and throughout 1998 of the applicant’s being subject to bullying. It was throughout this period that the applicant had only limited access to the benefit of an effective anti-bullying program within the school. That limited access resulted in her being subject to a degree of race-based bullying to which she would not have been subject otherwise. It resulted in her losing some unspecified amount of time from school. The applicant was aged only 10 and 11 at the time that she was subject the race-based bullying.

103 The effect of the conduct on the applicant warrants some amount of damages by way of compensation for emotional loss and damage. In the absence of any expert evidence as to actual psychological harm this amount will not be substantial.

104 What is ‘substantial’ is a moot point in this jurisdiction, even after 22 years. When the ant-discrimination jurisdiction was established in NSW the limit on damages was the equivalent of the District Court jurisdictional limit. In his second reading speech the then Premier said “the sum of $20,000 is the maximum amount within the jurisdiction of the District Court, and it appeared appropriate that the same sum should be set as the maximum for this tribunal” (Hansard 18 November 1976 page 3345).

105 In 1982 the limit was increased to $40,000, reflecting the same change in the District Court. It has not been changed since. The jurisdictional limit in the District Court for civil claims is now $750,000.

106 The question of what is a ‘substantial’ amount of damages depends on the meaning and effect of the jurisdictional limit. In our view that limit does not reflect the amount which would be awarded for the most serious loss and damage caused to a complainant: that is clearly untenable in light of the fact that an economic loss component alone of ‘loss and damage’ can readily exceed that amount (see for example Peck v Commissioner of Corrective Services [2002] NSWADT 122 at paras 108, 109)

107 A better view is to see the $40,000 limit as a cap on the amount of damages that the Tribunal can award, rather than a cap on the amount that the Tribunal assesses as warranted in the circumstances. An amount which is ‘not substantial’ is not assessed within a range determined by the cap of $40,000, but is assessed according to contemporary indicators of an appropriate award. That may or may not, in the circumstances, exceed $40,000.

108 In the circumstances of this matter we are of the view that an amount of $10,000 is an appropriate amount to award to the applicant by way of compensation for loss and damage caused by the discriminatory conduct.

MATTER 011022: COMPLAINT OF FP

109 Mrs FP complains that she suffered a detriment – she was denied teaching opportunities, and was isolated and excluded from other teaching staff and school functions – on the ground that she had made allegations of conduct which would be unlawful under the Anti-Discrimination Act.

110 The evidence in relation to this claim was limited. It relied almost exclusively on Ms FP’s own account of her teaching history, on her perception that she had suffered a detriment, and on her perception the detriment was on the ground of her having raised the issue of race discrimination.

111 The evidence does not satisfy us that Mrs FP was in fact denied teaching opportunities, nor that she was isolated and excluded from other teaching staff and school functions.

112 To the extent that Mrs FP did suffer some detriment of this sort, there is no evidence that associates either her teaching allocations or her personal relationships with her having complained of conduct which could be unlawful under the Act. Nor is there any evidence on which we can reasonably infer such a connection.

113 There is evidence which indicates that if Mrs FP’s conduct was relevant to teaching allocations, or to her relationships with other teachers, that conduct would be her persistent advocacy for the welfare of her daughter, rather than concerns she expressed about race-based conduct.

MATTER 011067: COSTS

114 The FR’s complaint of race discrimination, and FP’s complaint of victimisation, were heard together. We have found that FR’s complaint is substantiated. We have found that FP’s complaint is not substantiated.

115 The Department has made an application for costs in relation only to a discrete part of the hearing, regardless of the outcome of the inquiry. The application is made for one day’s hearing time which was lost on an adjournment, and for time necessary to prepare for the resumption of the inquiry.

116 We note that FR was legally represented throughout the inquiry, and its preparatory stages from the time the complaint was referred by the President. Reference to FR’s conduct in relation to the adequacy and timeliness of preparation and filing of evidence might more accurately be a reference to her legal representatives.

117 The inquiry extended over three days 9, 10 and 11 September, and a further three days 13, 14 and 15 November 2002. On the morning of the third day, 11 September, the proceedings were adjourned for further hearing in November. The final day, 15 November, was given over entirely to submissions and concluded at 11.35am.

118 It is the wasted day of 11 September, and the preparation necessary for fresh matters that were raised during the adjourned period from September to November for which the Department seeks its costs.

119 Late in the afternoon of 10 September, evidence was given by FP in relation to FR’s complaint which indicated that there might be evidence available of actual comparators for purposes of assessing whether or not there had been less favourable treatment. These would be school students who were not of FR’s race but were in the same or materially similar circumstances. Such evidence would be highly desirable if the Tribunal was to properly assess a claim of direct discrimination. Until FP’s evidence there had been no reference in pleadings, prepared statements or oral evidence of the possible existence of such evidence.

120 The Tribunal advised the legal representative for FR that such evidence, if available, might be of significant relevance, and asked him to consider the position overnight. On the morning of Wednesday 11 September he advised that he had been instructed to pursue that evidence and bring it before the inquiry. He hoped to have statements available by fax during the day on which he could rely without seeking an adjournment.

121 It was submitted for the Department that, in fairness, if leave were to be granted to allow the further evidence to be tendered, the proceedings should be adjourned to enable the Department to gather evidence in reply.

122 The Tribunal formed the view that it was obliged by s73(5)(b) of the Administrative Decisions Tribunal Act 1997 (ADT Act), to allow the further evidence to be tendered, but that it was at the same time obliged by s73(2) and s73(4)(c) to adjourn the proceedings. Relevantly, s73 provides:

(1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure.
(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
. . .
(4) The Tribunal is to take such measures as are reasonably practicable:
. . .
(c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings.
(5) The Tribunal:
. . .
(b) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and

123 At that time the Department foreshadowed an application for the costs thrown away. At the conclusion of the inquiry in November 2002 the Department did make such an application. The Department relied on the tender by the applicant of fresh evidence during the course of the inquiry, in light of the time and opportunity there had been for the evidence to have been identified previously.

124 Timetables for the filing by the applicant of pleadings and evidence had been set in May 2001, August 2001, and May 2002. The applicant filed pleadings – Points of Claim – in June 2001 and amended Points of Claim in April 2002. The amended Points of Claim included no further or different allegations relating to FR ’s complaints of discrimination. Despite the directions in May and August 2001 and May 2002 FR did not file her own statement of evidence until August 2002.

125 In May 2002 it was the persistent failure of FR to comply with directions which founded the Department’s application to have the matter struck out before the inquiry commenced. That application related to the manner in which the whole of the complaint had been prepared for hearing, and was not successful. It is not the persistent failure to comply with directions which founds this costs application. Rather, the basis of the application is the failure FR to prepare an essential element of her case until almost the close of the case, and the consequent delay and additional work required of the Department.

126 The need for evidence of an actual or hypothetical comparator is central to an applicant’s claim of direct discrimination. On the first morning of the inquiry, on 9 September 2002, the Tribunal began with a detailed discussion with the legal representative for FR concerning the extent of the evidence which would be available. Referring to the evidence that had been filed to date, he said “that is the only evidence that I have to file” and “all the evidence I have is filed in other words”.

127 While that discussion related specifically to evidence that would go to the question of treatment being “on the ground of race”, we are confident that that would have been his response had our inquiry been directed towards the sufficiency of evidence going to the question of the existence or not of a comparator, and the question of less favourable treatment.

128 In other words, after 16 months preparation and numerous occasions on which FR had the opportunity to file evidence, on the first day of hearing her legal representative advised that they had filed all the evidence on which they intended to rely. At the end of the second day of the inquiry it became apparent that there was evidence that might be available that went to the central question of less favourable treatment. At that point no evidence had been filed, nor any given orally, that addressed that question. At that point a complaint of direct discrimination could not have been established, for want of evidence relating to a comparator.

129 In our view there was ample opportunity FR, through her legal representative, to prepare the matter for hearing, to identify the claims and to gather the necessary evidence.

130 The Tribunal showed considerable latitude FR in preparation of the case, to the extent that the Department expressed its concern about its position being prejudiced. The adjournment of the inquiry from September to November 2002 was made necessary by FR’s failure to take advantage of time, opportunities, and latitude to adequately prepare and present evidence.

131 These are, in our view, circumstances which justify the making of a costs order. The order will be limited to the day’s hearing that was lost on 11 September 2000 and to the preparation the Department had to undertake to prepare for the fresh material which would be available at the adjourned hearing. The Department’s estimate is that that preparation time was one day, but the costs will be as agreed or, if not agreed, as assessed as being reasonable.

Orders

1. In matter number 011067 the complaint of FP and FQ on behalf of FR having been substantiated, the respondent is to pay the sum of $10,000 by way of compensation for loss and damage.

2. In matter number 011067, pursuant to s114(2) the applicants FP and FQ on behalf of FR shall pay the reasonable costs of the respondent on a party-party basis, relating to

i. the costs thrown away for the listed hearing date of 11 September 2002 and

ii. preparation of evidence in response to fresh evidence from the applicant advised to the respondent on and after 10 September 2002,

in a sum to be agreed between the parties within 60 days of the making of these orders, failing which the costs to be paid will be assessed in accordance with the provisions of Division 6 of Part 11 of the Legal Profession Act 1987 .

3. In matter number 011022 the complaint of FP, not having been substantiated, is dismissed pursuant to s113(1)(a).