FRT v NSW Education Standards Authority - [2023] NSWCATAD 24

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: FRT v NSW Education Standards Authority [2023] NSWCATAD 24
Hearing dates: 30 June 2022 and 1 July 2022
Date of orders: 30 January 2023
Decision date: 30 January 2023
Jurisdiction: Administrative and Equal Opportunity Division
Before: T Simon, Principal Member
M Maher, General Member
Decision:
(1) The Minister for Education and Early Learning is joined as a respondent
(2) The publication of the names of the applicant and her children is prohibited and the names are to be anonymised.
(3) The Applicant’s complaint is dismissed pursuant to s 108(1)(a) of the Anti-Discrimination Act 1977

Catchwords:
HUMAN RIGHTS – Discrimination – grounds of disability – educational authority - direct and indirect discrimination – home schooling – guidelines - denial to 2-year registration - whether differential treatment - comparator – educational authority – administer - services

Legislation Cited:
Anti-Discrimination Act 1977 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Education Act 1990 (NSW)
Education Standards Authority Act 2013 (NSW)

Cases Cited:
IW v City of Perth (1997) 191 CLR 1
Turner v State Transit Authority & anor [2004] NSWADT 89
Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124

Category: Principal judgment
Parties: FRT (Applicant)
NSW Education Standards Authority (First Respondent)
Minister for Education and Early Learning (Second Respondent)
Representation:
Counsel:
D Fuller (First and Second Respondent)
Solicitors:
Applicant (Self-represented)
Lander and Rogers (First and Second Respondent)

File Number(s): 2022/00046801
Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the disclosure, publication or broadcast of the names of the applicant, her children and photographs of her children is prohibited.

REASONS FOR DECISION

The applicant alleges that the respondents’ have unlawfully discriminated against her son by granting registration for home schooling for a period of one year, rather than the maximum period of two years under s 73(3) of the Education Act 1990 (NSW) (Education Act). The application has been made on the grounds of discrimination because of disability in education under s 49L of the Anti-Discrimination Act 1977 (NSW) (AD Act) or the discrimination in the provision of services under s 49M of the AD Act.
We have decided to dismiss the applicant’s complaint.

Non-publication of Names

These proceedings relate to the registration of a child for home schooling. The child is a minor. Both parties agreed that there should be a prohibition on the publication of the child’s name. The respondent did not oppose non-publication of the mother’s name and the siblings’ names, as they may identify the child. On that basis, non-publication orders have been made and the names of the applicant, subject child and his siblings have been anonymised. The evidence before the Tribunal also included photographs of the subject child and his siblings. Those photographs are also subject to a non-publication order.
To protect the anonymity of the minor, we have also referred to the parties, the siblings, and various witnesses by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWCATAD 24
Decision Date: 30 January 2023

CaseChat Overview and Summary

The case of FRT v NSW Education Standards Authority involved the applicant, a mother of a child with disabilities, who lodged a complaint against the NSW Education Standards Authority (NESA) alleging discrimination based on disability. The applicant sought a two-year registration for her child to engage in home schooling, which was denied by NESA. The dispute reached the courts, where the applicant argued that the denial constituted both direct and indirect discrimination under the Anti-Discrimination Act 1977 (NSW). The legal issues centred on whether NESA's refusal to grant the two-year registration amounted to discriminatory treatment, and if so, whether a suitable comparator could be identified for the purpose of establishing such discrimination.

The court examined the nature of the services provided by NESA and whether the denial of a two-year registration constituted differential treatment. It was established that NESA administered services under the Education Act 1990 (NSW), including the registration of home schooling arrangements. The court found that the applicant had not provided a suitable comparator to demonstrate that NESA's decision constituted discrimination. Without a proper comparator, the court concluded that it could not establish that the applicant's situation was treated less favourably than others in a similar position. Therefore, the court dismissed the complaint under section 108(1)(a) of the Anti-Discrimination Act 1977.

The final orders of the court included joining the Minister for Education and Early Learning as a respondent, prohibiting the publication of the names of the applicant and her children, and anonymising their names. The applicant's complaint was dismissed, and no further action was taken against NESA or the Minister for Education and Early Learning regarding the discriminatory practices alleged.

Orders

Orders of the court

(1) The Minister for Education and Early Learning is joined as a respondent

(2) The publication of the names of the applicant and her children is prohibited and the names are to be anonymised.

(3) The Applicant’s complaint is dismissed pursuant to s 108(1)(a) of the Anti-Discrimination Act 1977

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	FRT v NSW Education Standards Authority [2023] NSWCATAD 24
Hearing dates:	30 June 2022 and 1 July 2022
Date of orders:	30 January 2023
Decision date:	30 January 2023
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	T Simon, Principal Member M Maher, General Member
Decision:	(1) The Minister for Education and Early Learning is joined as a respondent (2) The publication of the names of the applicant and her children is prohibited and the names are to be anonymised. (3) The Applicant’s complaint is dismissed pursuant to s 108(1)(a) of the Anti-Discrimination Act 1977
Catchwords:	HUMAN RIGHTS – Discrimination – grounds of disability – educational authority - direct and indirect discrimination – home schooling – guidelines - denial to 2-year registration - whether differential treatment - comparator – educational authority – administer - services
Legislation Cited:	Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Education Act 1990 (NSW) Education Standards Authority Act 2013 (NSW)
Cases Cited:	IW v City of Perth (1997) 191 CLR 1 Turner v State Transit Authority & anor [2004] NSWADT 89 Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124
Category:	Principal judgment
Parties:	FRT (Applicant) NSW Education Standards Authority (First Respondent) Minister for Education and Early Learning (Second Respondent)
Representation:	Counsel: D Fuller (First and Second Respondent) Solicitors: Applicant (Self-represented) Lander and Rogers (First and Second Respondent)
File Number(s):	2022/00046801
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the disclosure, publication or broadcast of the names of the applicant, her children and photographs of her children is prohibited.