Kaplan v State of Victoria (No 8)
[2023] FCA 1092
•14 September 2023
FEDERAL COURT OF AUSTRALIA
Kaplan v State of Victoria (No 8) [2023] FCA 1092
File number(s): VID 391 of 2021 Judgment of: MORTIMER CJ Date of judgment: 14 September 2023 Catchwords: HUMAN RIGHTS – racial discrimination – s 9(1) and s 18C of the Racial Discrimination Act 1975 (Cth) – right to security of person and protection – right to education – right to preserve Jewish identity – where applicants are Jewish former students at Victorian public secondary school – alleged failure to protect Jewish students from antisemitic bullying and harassment – swastika graffiti – application allowed in part – speech by principal to full school assembly did not contravene s 18C
NEGLIGENCE – school principal’s duty of care – non-delegable duty – vicarious liability
DAMAGES – orders for compensation under s 46PO(4) of the Australian Human Rights Commission Act 1986 (Cth) – aggravated damages – whether appropriate to order an apology or apologies
Legislation: Australian Human Rights Commission Act 1986 (Cth) ss 49PO(4), 49PO(4)(d)
Disability Discrimination Act 1992 (Cth) ss 22(1)(b), 24(1)(b)
Evidence Act 1995 (Cth) ss 136, 140, 140(2)
Judiciary Act 1903 (Cth) s 79
Racial Discrimination Act 1975 (Cth) ss 3(3), 6, 9, 9(1), 9(1A), 9(2), 18A, 18A(2) 18C, 18C(1)(a), 18(1)(c)(b)
Sex Discrimination Act 1984 (Cth) ss 14(2), 28B, 28B(6)
Anti-Discrimination Act 1991 (Qld)
Anti-Discrimination Act 1977 (NSW) s 8
Crown Proceedings Act 1958 (Vic) s 23(1)(b)
Equal Opportunity Act 1985 (Vic) s 87
Equal Opportunity Act 1995 (Vic) ss 86(1)(b), 87(1)
Equal Opportunity Act 2010 (Vic) ss 92, 93
Racial and Religious Tolerance Act 2001 (Vic) s 7
Summary Offences Amendment (Nazi Symbol Prohibition) Act 2022 (Vic)
Wrongs Act 1958 (Vic) Pts VBA, X, ss 28LB, 28LC(2)(a), 28LE
Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) arts 8, 8(1), 12, 14, 19, 29(1)(c), 30
International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969) arts 5, 5(b), 5(e)(v)
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) arts 9(1), 24(1)
International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) art 13
Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (10 December 1948) art 26
Committee on Economic, Social and Cultural Rights, General Comment 11, UN Doc E/C.12/1999/4 (10 May 1999)
Committee on Economic, Social and Cultural Rights, General Comment 13, UN Doc E/C.12/1999/10 (8 December 1999)
Committee on the Elimination of Racial Discrimination, General Recommendation 20 on Article 5, UN Doc CERD/48/Misc.6/Rev.2 (8 March 1996)
Human Rights Committee, General Comment No 35, UN Doc CCPR/C/GC/35 (16 December 2014)
John Tobin (ed), The UN Convention on the Rights of the Child: A Commentary (Oxford University Press, 2019)
Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (Oxford University Press, 3rd edition, 2013)
Cases cited: Abdulrahman v Toll Pty Ltd t/as Toll Express [2006] NSWADT 221
Allied Pumps Pty Ltd v Hooker [2020] WASCA 72
Australian Competition and Consumer Commission v NQCranes Pty Ltd [2021] FCA 1270
Badenach v Calvert [2016] HCA 18; 257 CLR 440
Baird v Queensland [2006] FCAFC 162; 156 FCR 451
Barnes v Northern Territory Police [2013] FCCA 30
Bharatiya v Antonio [2022] FCA 428
Bird v DP [2023] VSCA 66; 323 IR 174
Bradford-Smart v West Sussex County Council [2002] EWCA Civ 07
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16; 135 FCR 105
Bropho v Western Australia [1990] HCA 24; 171 CLR 1
Cairns Regional Council v Carey [2012] QCATA 150
Campbell v Kirstenfeldt [2008] FMCA 1356
Campbell v Northern Territory of Australia (No 3) [2021] FCA 1089; 295 A Crim R 1
Carter v Brown [2010] NSWADT 109
Clarke v Catholic Education Office [2003] FCA 1085; 202 ALR 340
Clarke v Nationwide News Pty Ltd t/as Sunday Times [2012] FCA 307; 201 FCR 389
Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183
Collins v Smith [2015] VCAT 1992; 256 IR 52
Commonwealth of Australia v Fernando [2012] FCAFC 18; 200 FCR 1
Commonwealth of Australia v Introvigne [1982] HCA 40; 150 CLR 258
Creek v Cairns Post Pty Ltd [2001] FCA 1007; 112 FCR 352
Cross v Hughes [2006] FMCA 976; 233 ALR 108
DP v Bird [2021] VSC 850
Eatock v Bolt (No 2) [2011] FCA 1180; 284 ALR 114
Eatock v Bolt [2011] FCA 1103; 197 FCR 261
Employment Services Australia Pty Ltd v Poniatowska [2010] FCAFC 92
Eskinazi v State of Victoria [2003] VCC 38
Ewin v Vergara (No 4) [2013] FCA 1409
Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803; 209 IR 263
Fisher v Commonwealth of Australia [2023] FCAFC 106
Gama v Qantas Airways Ltd (No 2) [2006] FMCA 1767
Gill v Ethicon Sàrl (No 5) [2019] FCA 1905
GLS v PLP (2013) VCAT 221
Gray v Motor Accident Commission [1998] HCA 70; 196 CLR 1
Green v State of Queensland [2017] QCAT 8
Hagan v Trustee of Toowoomba Sportsground Trust [2000] FCA 1615
Hagan v Trustees of Toowoomba Sports Ground Trust [2001] FCA 123; 105 FCR 56
Haider v Hawaiian Punch Pty Ltd (t/as The Honeypot Club) [2015] FCA 37
Hamzy v Commissioner of Corrective Services NSW [2022] NSWCA 16; 107 NSWLR 544
I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; 210 CLR 109
Iliafi v Church of Jesus Christ of Latter-Day Saints Australia [2014] FCAFC 26; 221 FCR 86
Introvigne v Commonwealth of Australia (1980) 48 FLR 161
John Fairfax & Sons Pty Ltd [1966] HCA 40; 117 CLR 118
Jones v Dunkel [1959] HCA 8; 101 CLR 298
Jones v Toben [2002] FCA 1150; 71 ALD 629
Kanapathy v in de Braekt (No 4) [2013] FCCA 1368
Kaplan v State of Victoria [2022] FCA 590
Kaplan v State of Victoria (No 2) [2022] FCA 679
Kaplan vState of Victoria (No 3) [2022] FCA 728
Kaplan v State of Victoria (No 4) [2022] FCA 897
Kaplan v State of Victoria (No 5) [2022] FCA 909
Kaplan v State of Victoria (No 6) [2022] FCA 1048
Koowarta v Bjelke-Petersen [1982] HCA 27; 153 CLR 168
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361
Lee v Smith (No 2) [2007] FMCA 1092
Lee v Smith [2007] FMCA 59
Leichardt Municipal Council v Montgomery [2007] HCA 6; 230 CLR 22
Lek v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 411; 43 FCR 100
Mabo v State of Queensland [1988] HCA 69; 166 CLR 186
Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission [1998] FCA 1650; (1998) 91 FCR 8
Maloney v The Queen [2013] HCA 28; 252 CLR 168
Masson v Parsons [2019] HCA 21; 266 CLR 554
Meckiff v Simpson [1968] VR 62 at 70
Murugesu v Australia Post (No 2) [2016] FCCA 2355
New South Wales v Ibbett [2006] HCA 57; 229 CLR 638
New South Wales v Lepore [2003] HCA 4; 212 CLR 511
Oyston v St Patrick’s College (No 2) [2013] NSWCA 310
Oyston v St Patrick’s College [2011] NSWSC 269
Oyston v St Patrick’s College [2013] NSWCA 135
Palmer v The Queen [1998] HCA 2; 193 CLR 1
Pateras v State of Victoria [2017] VSCA 31
Payne v Parker [1976] 1 NSWLR 191
Phelps v Hillingdon London Borough Council [2000] 3 WLR 776
Poniatowska v Hickinbotham [2009] FCA 680
Prince Alfred College Inc v ADC [2016] HCA 37; 258 CLR 134
Qantas Airways Ltd v Gama [2008] FCAFC 69; 167 FCR 537
Re Alex [2009] FamCA 1292; 248 FLR 312
Re Tracey [2011] NSWCA 43; 80 NSWLR 261
Richards v State of Victoria [1969] VR 136
Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82; 223 FCR 334
Rizeq v Western Australia [2017] HCA 23; 262 CLR 1
Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555
Ross v New Brunswick School District No 15 [1996] 1 SCR 825
Salt v State of Victoria [2017] VSC 6; 52 VR 130
SB v State of New South Wales [2004] VSC 514; 13 VR 527
Shultz v McCormack [2015] NSWCA 330
Silberbergv The Builders Collective of Australia Inc [2007] FCA 1512; 164 FCR 475
State of New South Wales v Corby [2010] NSWCA 27; 76 NSWLR 439
State of Queensland v Barney [2013] QCATA 104
State of Victoria v McKenna [1999] VSC 310; 140 IR 256
State of Victoria v Subramanian [2008] VSC 9; 19 VR 335
Tan v Xenos(No 3) [2008] VCAT 584
Toben v Jones [2003] FCAFC 137; 129 FCR 515
Trustees of the Roman Catholic Church for the Diocese of Bathurst v Koffman (1996) Aust Torts Reports 81-399
Waller v James [2015] NSWCA 232; 90 NSWLR 634
Wodonga Regional Health Service v Hopgood [2012] VSCA 326; 37 VR 284
Wotton v Queensland (No 5) [2016] FCA 1457
Wren v Emmett Contractors Pty Ltd (1969) 43 ALJR 213
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 1806 Date of last submission: 21 March 2023 Date of hearing: 1-3, 6-10, 14-16, 20-24, 27-29 June 2022, 25-29 July 2022, 14, 17-18, 21-25 November 2022, 27-28 February 2023, 1-2 March 2023 Counsel for the Applicants: Mr A Butt with Mr C Dawlings and Mr A Marcou Solicitor for the Applicants: Cornwalls Counsel for the Respondents: Mr C Young KC with Mr T Jeffrie and Mr B House Solicitor for the Respondents: MinterEllison ORDERS
VID 391 of 2021 BETWEEN: JOEL KAPLAN
First Applicant
MATT KAPLAN
Second Applicant
GUY COHEN (and others named in the Schedule)
Third Applicant
AND: STATE OF VICTORIA
First Respondent
RICHARD MINACK
Second Respondent
PAUL VARNEY
Third Respondent
DEMI FLESSA
Fourth Respondent
ORDER MADE BY:
MORTIMER CJ
DATE OF ORDER:
14 SEPTEMBER 2023
THE COURT DECLARES THAT:
Racial Discrimination Act 1975 (Cth)
A.In relation to the first, second, third and fourth applicants, between July 2015 and May 2020, the second respondent engaged in unlawful discrimination contrary to s 9(1) of the Racial Discrimination Act 1975 (Cth), by his failures and omissions to:
(a)take action at a systemic and coordinated level to address a high level of antisemitic bullying and harassment of Jewish students by other students at Brighton Secondary College and high levels of swastika graffiti at the school; and
(b)enforce the policies of Brighton Secondary College on racial harassment in relation to antisemitic bullying and harassment of Jewish students by other students at Brighton Secondary College and in relation to the display of swastika graffiti at the school.
B.In relation to the third applicant, during 2018 in a year 8 English class at Brighton Secondary College, the third respondent engaged in unlawful discrimination contrary to s 9(1) of the Racial Discrimination Act, by his use of purported greetings in Hebrew to the third applicant in circumstances where that conduct singled the third applicant out to the class as being Jewish and of Israeli national origin, and the third applicant and his mother had made it clear the conduct was unwelcome and unwanted.
C.Pursuant to s 18A of the Racial Discrimination Act, the Racial Discrimination Act applies in relation to the first respondent as if the first respondent had engaged in the conduct of the second respondent referred to in paragraph A above, and the conduct of the third respondent referred to in paragraph B, so that the first respondent is taken to have contravened s 9(1) of the Racial Discrimination Act in the manner there set out.
THE COURT ORDERS THAT:
1.Paragraphs [367], [368], [369(b)] and [369(c)] (to the extent it relates to [369(b)]) of the statement of claim dated 22 July 2021 be struck out.
2.Paragraph [373] of the statement of claim dated 22 July 2021 be struck out.
3.Paragraphs [116]-[122] of the statement of claim dated 22 July 2021 be struck out.
Removal of litigation representatives
4.Subject to any further or other order, Janet Abadee be removed as litigation representative of Matt Kaplan.
5.Subject to any further or other order, Sarit Cohen be removed as litigation representative of Guy Cohen.
6.Subject to any further or other order, Natalie Snelling be removed as litigation representative of Zack Snelling.
Disposition of the originating application
7.The originating application dated 16 July 2021 be allowed in part.
Compensation
8.Pursuant to s 46PO(4)(d) of the Australian Human Rights Commission Act 1986 (Cth) the first respondent pay compensation to Joel Kaplan in the total sum of $63,780.
9.Pursuant to s 46PO(4)(d) of the AHRC Act the first respondent pay compensation to Matt Kaplan in the total sum of $60,000.
10.Pursuant to s 46PO(4)(d) of the AHRC Act the first respondent pay compensation to Guy Cohen in the total sum of $55,000.
11.Pursuant to s 46PO(4)(d) of the AHRC Act the first respondent pay compensation to Zack Snelling in the total sum of $244,968.31.
Damages
12.The first respondent pay to Liam Arnold-Levy:
(a)the sum of $10,000 by way of damages for non-economic loss pursuant to the exception in s 28LC(2)(a) of the Wrongs Act 1958 (Vic); and
(b)the sum of $1,532.43 by way of damages for economic loss.
Apology
13.On or before 4.00 pm on 6 October 2023, the first respondent serve on the applicants a proposed form of apology by the first respondent to each of the applicants, in a form that is compatible with the Court’s reasons for judgment in this proceeding.
14.The applicants and the first respondent are to attempt to negotiate, in good faith, an agreed form of apology or apologies by the first respondent to each of the applicants, in a form that is compatible with the Court’s reasons for judgment in this proceeding, including agreement about when and in what form the apologies will be given.
15.In the absence of the Court being notified on or before 4.00 pm on 13 October 2023 that the parties have agreed on a form of apology to each applicant, the proceeding will be listed for case management, at a date to be fixed in consultation with the parties, for the Court to consider whether it should prescribe a form of apology, or relieve the first respondent of any obligation to deliver an apology to one or more of the applicants.
16.The parties may request the assistance of a Judicial Registrar of the Court in their negotiations pursuant to order 14 of these orders.
Costs
17.The first respondent pay the applicants’ costs, capped in accordance with the Court’s orders dated 27 October 2021 in the sum of $130,000.
Further orders or variations
18.On or before 4.00 pm on 6 October 2023, the parties each file any proposed further orders, or variations to orders already made in the proceeding, including any proposed orders in relation to interest, accompanied, if necessary, by supporting submissions of no more than 5 pages.
19.As far as possible the parties are to agree on the form of any further orders, or variations to orders already made in the proceeding, including any proposed orders in relation to interest.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MORTIMER CJ:
INTRODUCTION AND SUMMARY
[1]
THE EVIDENCE AND SUBMISSIONS
[20]
TERMINOLOGY AND NAMES USED IN THESE REASONS
[30]
Antisemitism
[30]
Names of student perpetrators
[35]
Other terminology used in these reasons
[36]
THE RDA ALLEGATIONS
[45]
RDA s 9
[45]
The human rights relied on by the applicants
[71]
RDA s 18C
[98]
NEGLIGENCE: THE CORRECT APPROACH AND SOME GENERAL FINDINGS
[111]
THE CAUSES OF ACTION AND KEY ALLEGATIONS
[155]
Observations regarding the causes of action and key allegations
[155]
Allegations common to more than one of the applicants
[167]
Individual allegations
[173]
Rolled up or generalised allegations in the pleadings
[176]
Failure of all BSC staff to take action in response to complaints/notification of certain alleged bullying
[181]
Allegations concerning Corey Fooks
[188]
Allegations regarding Ashley Meehan
[192]
Allegations regarding Ms Flessa’s actions with respect to Ariel Katz
[195]
THE RESPONDENTS’ DEFENCE
[201]
RESOLUTION: GENERAL ISSUES TO BE RESOLVED
[209]
The applicants’ final submissions
[210]
Standard of proof
[212]
The use of certain aspects of the evidence
[217]
Professor Rutland’s evidence
[223]
Nature and content of antisemitic conduct in Australian schools
[235]
Gravity of the student perpetrators’ conduct and the size of the problem at BSC
[250]
Phenomenon of Jewish student victims not complaining
[253]
Steps that should have been taken at BSC
[262]
The respondents’ submissions about Professor Rutland’s evidence
[267]
Dr Abramovich’s evidence
[269]
Mr Paul’s evidence
[283]
Restorative justice processes
[287]
Expulsion
[298]
Steps that it is reasonable for principals and schools to take
[310]
Antisemitic behaviour in schools
[315]
Mr Minack’s evidence
[325]
Findings about BSC policies in existence during the period
[343]
The relevance of the Worklogic report
[361]
The Worklogic recommendations
[371]
The comparison with the treatment of LGBTQIA+ identifying students
[375]
The allegations of an antisemitic culture at BSC
[396]
The probative value of BSC records from the period
[405]
Jones v Dunkel inferences
[411]
Dr Riha
[423]
Mr Astorino
[429]
Ms Hart
[430]
Mr Hunt
[433]
Ms Anderson
[435]
Mr Dobric
[438]
Ms Frangoulis
[441]
Ms Panopio
[445]
RESOLUTION: THE COMMON ALLEGATIONS
[447]
Mr Minack’s speech, or speeches – pleadings
[447]
Mr Minack’s speech, or speeches – resolution
[450]
The 2018 / earlier 2019 speech allegations
[452]
The March 2019 speech
[483]
Findings on s 9
[494]
Findings on s 18C
[504]
Findings on the negligence claims about the speech
[549]
Other evidence relied on by the applicants
[550]
Swastika graffiti and other antisemitic graffiti – pleadings
[551]
Specific instances of reporting of swastikas
[558]
Swastika graffiti and other antisemitic graffiti – resolution
[562]
Swastikas: The evidence in summary
[568]
The respondents’ case on swastikas in summary
[571]
Swastikas: factual findings
[574]
The evidence of other BSC students
[575]
Conclusions on other student evidence about swastikas
[623]
Applicants and their families
[627]
Conclusions on the evidence of the applicants and their families
[727]
The evidence of Mr Minack, the BSC staff and the leadership cohort
[731]
Conclusions on the teachers’ evidence about swastikas
[799]
Overall factual conclusions on the presence of swastikas at BSC and the response to them from Mr Minack and teaching staff
[812]
RDA s 9: findings
[827]
Conclusions on s 9
[857]
Liam’s allegations about swastika graffiti
[861]
RDA s 18C: findings
[865]
Negligence: findings
[866]
Allegations regarding the teaching of Maus – pleadings
[887]
Allegations regarding the teaching of Maus – resolution
[894]
The failure to provide adequate disciplinary consequences, adequate behaviour encouragement and adequate education to BSC students
[928]
Matt and Guy’s common allegations
[929]
Matt and Guy’s claims against Ms Flessa – pleadings
[930]
Class assignment
[931]
Comments about Israel and Palestine
[934]
Heil Hitler taunts
[936]
Matt and Guy’s claims against Ms Flessa – resolution
[938]
Claims against Ms Flessa about the class assignment
[938]
Alleged comments about Israel and Palestine
[953]
Heil Hitler taunts by students in Ms Flessa’s class
[975]
Matt and Guy’s claims against Mr Varney – pleadings
[988]
Statements in Hebrew
[989]
Statements about Israel and Palestine
[991]
Matt and Guy’s claims against Mr Varney – resolution
[993]
Statements in Hebrew
[994]
Factual findings on Mr Varney’s conduct
[1016]
RDA and negligence
[1029]
Statements about Israel and Palestine
[1042]
Findings on statements about Israel and Palestine
[1057]
Matt and Guy’s claims about Mr Lyons – pleadings
[1060]
Matt and Guy’s claims about Mr Lyons – resolution
[1069]
Factual findings on Matt and Guy’s allegations about Mr Lyons
[1081]
RESOLUTION: INDIVIDUAL ALLEGATIONS
[1087]
Mr Minack’s responsibilities as principal
[1089]
Liam – pleadings
[1093]
Racist bullying and assaults, and reporting of bullying and assaults to school staff
[1093]
Liam – resolution
[1102]
Factual findings about the bullying and harassment experienced by Liam and whether it had an antisemitic character or aspect
[1137]
Factual findings about whether Liam complained, and if so, when and how
[1161]
Ms Podbury’s evidence
[1210]
The return to BSC with Ms Meltzer
[1223]
Mr Minack’s evidence about Liam
[1242]
Conclusions on Liam’s causes of action
[1248]
RDA s 9
[1252]
Negligence
[1260]
Joel – pleadings
[1277]
Racist bullying in year 7 – 2016
[1278]
Incidents in year 8 – 2017
[1280]
Racist bullying in year 9 – 2018
[1283]
Incident in which Mr Hunt told Joel to remove his yarmulke (year 9 – 2018)
[1285]
Racist taunts and other bullying in year 10 – 2019
[1286]
Racist taunts and other bullying in year 11 – 2020
[1287]
Joel – resolution
[1291]
Factual findings applicable to Joel’s allegations
[1298]
Racist bullying in year 7 – 2016
[1301]
Specific incidents in years 8, 9, 10 and 11 – 2017-2020
[1305]
Factual findings on Joel’s less specific allegations
[1313]
Incident in which Mr Hunt told Joel to remove his yarmulke (year 9 – 2018)
[1341]
Conclusions on Joel’s causes of action
[1346]
RDA s 9
[1348]
RDA s 18C
[1353]
Negligence
[1354]
Matt – pleadings
[1359]
Incident in which Slater called Matt a “fucking Jew” (year 7 – 2017)
[1360]
Incidents with Lucas (year 7 – 2017)
[1361]
Other incidents in 2017 relating to Heil Hitler salutes (year 7 – 2017)
[1362]
Incidents of racial abuse by other students (year 8 – 2018)
[1364]
Incident in which student threw paper with swastikas at Matt (year 9 – 2019)
[1365]
Other reports of antisemitic conduct by Matt (year 9 – 2019)
[1366]
Allegation that a student made Heil Hitler salutes to Matt, and that Mr Nash did not take appropriate action (year 10 – 2020)
[1367]
Response to incident between Matt and Oliver (year 10 – 2020)
[1368]
Matt’s Magen David necklace
[1369]
Matt – resolution
[1374]
Findings on specific incidents alleged by Matt – 2017-2020
[1382]
The incident with Oliver and its aftermath
[1390]
The 2017 incident with Slater and the CCTV footage
[1408]
Factual findings on Matt’s less specific allegations
[1410]
The Magen David incident with Mr Lyons
[1420]
Conclusions on Matt’s causes of action
[1422]
RDA s 9
[1424]
RDA s 18C
[1431]
Negligence
[1432]
Guy – pleadings
[1437]
Failure by Ms Bolton to act with regard to racially-motivated conduct (year 7 – 2017)
[1439]
Failure by Mr Nash to act with regard to racially-motivated conduct (year 8 – 2018)
[1442]
Failure by Ms Trinh to act with regard to racially-motivated conduct, including incident regarding Guy’s bag (year 9 – 2019)
[1445]
Guy – resolution
[1451]
Conclusions on Guy’s individual allegations
[1471]
RDA s 9
[1472]
RDA s 18C
[1476]
Negligence
[1477]
Zack – pleadings
[1478]
Racist bullying in year 7 – 2018
[1479]
Racist bullying, and reports to BSC staff of that bullying, in year 8 – 2019
[1481]
Racist bullying, including the park incident, in year 9 – 2020
[1485]
Zack – resolution
[1493]
Natalie Snelling’s interactions with Mr Minack and Ms Angelidis
[1514]
The assault in class
[1542]
The Snapchat messages
[1555]
The assault in the park
[1565]
Behaviour management plans, expulsions and restorative justice
[1583]
Safety support plans
[1583]
Expulsions
[1589]
Restorative justice
[1598]
Conclusions on Zack’s causes of action
[1599]
RDA s 9
[1600]
RDA s 18C
[1605]
Negligence
[1606]
THE DAMAGES CLAIMS – PLEADINGS
[1615]
The damages claimed
[1615]
Liam
[1623]
Joel
[1625]
Matt
[1627]
Guy
[1629]
Zack
[1630]
THE DAMAGES CLAIMS – RESOLUTION
[1633]
Liam
[1642]
Non-economic loss in negligence for the bathroom incident
[1651]
Economic loss claims
[1663]
Conclusion
[1667]
Joel
[1670]
Non-economic loss: RDA
[1673]
Economic loss
[1685]
Negligence
[1691]
Matt
[1692]
Economic loss
[1703]
Negligence
[1706]
Guy
[1708]
Zack
[1718]
Non-economic loss: RDA
[1736]
Economic loss: RDA/negligence
[1741]
Negligence
[1746]
AGGRAVATED AND EXEMPLARY DAMAGES: RESOLUTION
[1752]
Aggravated or exemplary damages in negligence
[1752]
Aggravated or exemplary damages under the RDA
[1759]
OTHER RELIEF CLAIMED: RESOLUTION
[1790]
Apology
[1791]
Declaration
[1799]
Training
[1802]
CONCLUSION
[1804]
INTRODUCTION AND SUMMARY
Five applicants, Joel Kaplan, Matt Kaplan, Guy Cohen, Zack Snelling and Liam Arnold-Levy, have brought this proceeding against the State of Victoria, the principal of Brighton Secondary College, Mr Richard Minack, and two BSC teachers, Mr Paul Varney and Ms Demi Flessa. The applicants rely on three causes of action: contraventions of s 9(1) of the Racial Discrimination Act 1975 (Cth), contraventions of s 18C of the RDA, and negligence.
The factual basis for all three causes of action is broadly the same, although there are also a number of specific allegations against Mr Varney, Ms Flessa and a number of other BSC teachers. The applicants’ allegations span the period of 2013 to 2020, depending on when they attended BSC. Each applicant left BSC prematurely, and the Court has accepted that four out of five of them left because of the antisemitism from other students they experienced at BSC and how unsafe and unprotected by Mr Minack and the BSC staff they felt. The fourth-named applicant, Guy, left to move overseas.
In summary terms, the applicants allege that during their respective times at BSC, they were subjected to antisemitic bullying and harassment by groups of BSC students, and some individual BSC students, and that they complained about the bullying and harassment. The applicants allege that other Jewish students at BSC experienced some of the same treatment. The applicants also allege that Mr Minack contravened the racial vilification provisions of the RDA (s 18C) in respect of at least one (and allegedly more than one) speech he gave to a full school assembly at BSC, where the applicants allege he made remarks that offended, insulted, humiliated or intimidated Jewish students at the assembly and were offensive more generally to Jewish people.
The applicants allege that, unlike other vulnerable minority student groups, no or no adequate steps were taken by Mr Minack, and through him the rest of the teaching and other staff at BSC, to address how these other students were treating the applicants, or to protect Jewish students. They also allege that, unlike other vulnerable minority student groups, Jewish students (including the applicants) had to endure unreasonably and extraordinarily high levels of graffiti that was highly offensive and hurtful to them, and which made them fearful for their safety at school. This graffiti consisted largely of swastika graffiti, and they allege it was present in the classrooms and around the grounds of BSC, as well as through students drawing swastikas on school books and on themselves, and making swastika shapes. They allege there were no proactive and systemic measures taken by Mr Minack, and through him the rest of the teaching and other staff at BSC, to discourage this kind of graffiti, to educate students about its particular impacts on Jewish students and to facilitate behaviour change at BSC in the way behaviour change was facilitated for other vulnerable minority groups.
The applicants also made a series of specific factual allegations against Mr Varney and Ms Flessa about remarks they made during various classes concerning Israel and Palestine and concerning Israelis and Palestinians, and about comments in Hebrew Mr Varney is alleged to have said to Guy.
The respondents contested liability on all three causes of action.
The Court has determined that the applicants’ allegations should be upheld in part. The Court has generally accepted the narrative from the applicants, their family members and the 17 former and current BSC student witnesses who gave evidence about the unusually high levels of swastika graffiti, and the frequent complaints they made about swastikas and the antisemitic bullying and harassment. The Court has accepted the applicants’ case that there were failures by Mr Minack to address in any systemic and proactive way the antisemitic bullying and harassment, using recognised and established approaches available in Australian secondary schools and indeed used at BSC for other vulnerable minorities.
The main allegations which the Court has upheld relate to Mr Minack’s contravention of s 9 of the RDA by failing to take appropriate and reasonable steps to discourage and modify the antisemitic student bullying and harassment behaviour, and to discourage swastika graffiti, including by imposing appropriate disciplinary consequences but also by more systemic approaches such as school-wide campaigns. The Court has found that at a leadership and systemic level, Mr Minack took a different, and less favourable, approach to antisemitic bullying and harassment of Jewish students than he took, or would have taken, to the bullying and harassment of other vulnerable minority student groups at BSC. Through his own conduct as principal, this differential approach was also adopted by BSC staff, and there was – for example – an inexplicable and unusual tolerance for antisemitic graffiti and a preparedness to ignore, downplay and take less seriously the complaints made by Jewish students and their families. There was also a disinclination to adopt any systemic, school-wide steps to address antisemitic student behaviour, despite this having been done, appropriately, to protect LGBTQIA+ students and to encourage tolerance and acceptance of students who identified in that way or who were exploring their identity.
This conduct involved a distinction in the way the applicants were treated by Mr Minack and, through his failures in leadership, the teachers and staff at BSC, which in turn impaired the applicants’ human rights to security of person and protection, to education, and to preservation of their Jewish identity.
Insofar as these allegations under the RDA were also made in negligence, the Court has upheld the negligence claims made by Liam, Joel, Matt and Zack. No negligence claim was pressed on behalf of Guy.
The Court has upheld one specific claim under s 9 of the RDA by Guy against Mr Varney, relating to singling Guy out and greeting him in Hebrew when Guy and his mother had made it clear this conduct was unwelcome.
The Court has otherwise rejected the specific claims made against Mr Varney, and has rejected all the specific claims made against Ms Flessa. It has also rejected all of the claims made by the applicants about specific incidents where they allege inadequate or partisan disciplinary consequences were imposed for various interactions between one or more of the applicants and other BSC students that were said to involve antisemitic harassment and bullying. The Court has found the applicants have not proven that these specific disciplinary decisions about those specific interactions were made other than on a case-by-case basis within the scope of existing policies of BSC for dealing with student on student interactions and the applicants have not proven there was any racially discriminatory element to those specific disciplinary decisions.
The applicants claimed a variety of relief. The State generally accepted it would be vicariously liable for the alleged conduct if proven. Therefore, in relation to the allegations the Court has found proven, damages and compensation orders are made against the State. The Court has ordered the State pay, in total:
(a)the sum of $63,780 to Joel;
(b)the sum of $60,000 to Matt;
(c)the sum of $55,000 to Guy;
(d)the sum of $244,968.31 to Zack; and
(e)the sum of $11,532.43 to Liam.
Interest may be payable on some of those amounts. Some of the damages in negligence claimed by the applicants were not available because of the provisions of the Wrongs Act 1958 (Vic), and the limits imposed on recovery of damages for physical and psychiatric injury in negligence. Through the operation of s 79 of the Judiciary Act 1903 (Cth), those limits apply to the applicants’ negligence claims.
Further, Liam’s claims under the RDA, although of the same nature as those made by Joel, Matt, Guy and Zack, related to a time before Mr Minack was principal of BSC. The Court has found the applicants did not allege and prove any claims under the RDA against the then principal of the school, Ms Podbury, in the same way they alleged and proved their claims against Mr Minack. Therefore, Liam’s claims under the RDA cannot succeed in the same way that the claims of the other four applicants have succeeded. The Court recognises the perceived unfairness in this outcome, and has invited the State to consider making an ex gratia payment to Liam, commensurate with what the Court has found was the damage he suffered, and commensurate with the compensation awarded to the other applicants.
The Court has also granted declaratory relief relating to contraventions of the RDA, whereby the Court describes the contraventions of the RDA it has found proven.
The Court has agreed with the applicants that there should be an apology, or apologies, but has agreed with the respondents that the proper respondent to give that apology, or apologies, is the State. In its orders, the Court has prescribed some steps to be taken between the parties to negotiate a form of apology that is compatible with the Court’s reasons. If the parties cannot agree on a form of apology, or apologies, one possible outcome is that the Court will not order any apology to be given.
The Court has not agreed with any of the other relief sought by the applicants.
What follows are the detailed reasons for the conclusions I have expressed above.
THE EVIDENCE AND SUBMISSIONS
The trial was conducted by way of oral evidence, save for expert reports.
In addition to the five applicants themselves, the applicants called 30 lay witnesses. These witnesses were:
(a)family members of the applicants:
(i)Rochelle Arnold-Levy, mother of Liam;
(ii)Janet Abadee, mother of Joel and Matt;
(iii)Zac Kaplan, brother of Joel and Matt;
(iv)Sarit Cohen, mother of Guy;
(v)Natalie Snelling, mother of Zack; and
(vi)Courtney Snelling, sister of Zack;
(b)students currently at BSC at the time of the trial:
(i)Ryan Barrett;
(ii)Dane Foster;
(iii)Max Joho; and
(iv)Jasmine Karro;
(c)students formerly at BSC:
(i)Matthew Austen;
(ii)Lilly Curnow;
(iii)Corey Fooks;
(iv)Alma Goldberg;
(v)Ariel Katz;
(vi)Epaminondas Notis Korkoneas;
(vii)Elliot McMahon;
(viii)Ruby Micheli;
(ix)Jules Paul;
(x)Bella Saffer;
(xi)Nathan Shulman;
(xii)Angus Tranter; and
(xiii)Howard Zezula;
(d)madrichim (see terminology section, below):
(i)Danny Feigen;
(ii)Leah Hain;
(iii)Jemma Katz; and
(iv)Gabriel Lefkovits; and
(e)a number of witnesses from other organisations:
(i)Esther Meltzer, from Liebler Yavneh college;
(ii)Dr Dvir Abramovich, from the Anti-Defamation Commission; and
(iii)Detective Senior Constable William Lordanic.
In the course of the trial the applicants made applications to call two further witnesses. I refused those applications in Kaplan v State of Victoria (No 5) [2022] FCA 909 and Kaplan v State of Victoria (No 6) [2022] FCA 1048.
In addition to the three individual respondents, the respondents called 22 lay witnesses. These witnesses were:
(a)former BSC principal Julie Podbury;
(b)assistant principals:
(i)Kaye Sentry;
(ii)Olympia Angelidis; and
(iii)Pasquale Gargano;
(c)student managers (see terminology section, below):
(i)Anh Thi Trinh;
(ii)Carolyn Dunn;
(iii)Jan Chan;
(iv)Lana Goldstone;
(v)Shae Hower;
(vi)Nathan Hutchins;
(vii)Rebecca McMahon;
(viii)Sokrurm Drechsler;
(ix)Lindsey Nash; and
(x)Mali Lewis;
(d)other teaching staff at BSC:
(i)Elizabeth Bolton;
(ii)Bryan Lynch-Wells;
(iii)Michael Lyons; and
(iv)Despina Sarikizis;
(e)chaplains and wellbeing team staff:
(i)Karen Gibson;
(ii)Peter Mangold; and
(iii)Tania Vairamuttu; and
(f)Karen Kearney, who at the relevant time worked in the front administration office at BSC.
The applicants called six expert witnesses:
(a)Dr Amanda Scott, a general practitioner;
(b)Dr Kristy-Anne Adnams, a clinical psychiatrist;
(c)Dr Maria Andrzejewski, a consultant psychiatrist;
(d)Stephen Paul, an educational consultant;
(e)Dr Matthew Tagkalidis, a consultant psychiatrist; and
(f)Professor Suzanne Rutland, for her specialisation in research into Australian Jewry.
The respondents called one expert witness: Michael Whine, a senior consultant at the World Jewish Congress.
The evidence in the proceeding included a significant number of documents. The consolidated court book tendered and marked as an exhibit at the end of trial contained over 1,100 individual documents, many of which were compilations of multiple individual documents, including emails, student records, teacher and counselling notes, and other school records such as plans, school newsletters and other similar documents.
The parties sought to include a number of affidavits in the court book. These related mostly to discovery, but also to various applications brought by each party throughout the course of the trial. These included applications to suppress the names of certain individuals, to seek leave to amend pleadings, to rely on witness outlines, and to call further witnesses. The parties did not rely on those affidavits for the purposes of their closing submissions, with the exception of two affidavits: one in relation to discovery by Liam, and one in relation to the applicants’ application for costs-capping in the proceeding. With the respect to the latter affidavit, the respondents initially objected to the tender of that affidavit, but later withdrew that objection. Though the affidavits were not formally read for the purposes of the trial itself, no party objected to their inclusion in the court book. They were therefore admitted as part of the exhibit comprising the court book, as agreed between the parties. Absent any substantive reliance on those affidavits by the parties in their submissions, the utility of these affidavits to the Court’s fact-finding is limited.
A number of objections were made throughout the trial as to witness evidence. I gave rulings on those objections, which are recorded in the transcript of the trial, or which were recorded in written reasons provided to the parties directly. I also provided written reasons for ruling, and made orders, directing that certain evidence may only be used for certain purposes, and not for any other purposes, pursuant to s 136 of the Evidence Act 1995 (Cth). In addition, there were objections during the trial as to the content of certain expert reports. I gave rulings on those objections in Kaplan vState of Victoria (No 3) [2022] FCA 728 and Kaplan v State of Victoria (No 4) [2022] FCA 897, and in written reasons provided to the parties directly. The parties’ objections to the tender of documents were dealt with prior to the court book being consolidated and marked as an exhibit.
In addition to their oral openings and closings, the parties each filed opening and closing written submissions, as well as submissions on the application of the principles in Jones v Dunkel [1959] HCA 8; 101 CLR 298. The parties also filed chronologies, and the applicants provided a ‘Chronology of Minister’s wrongs’ and ‘Chronology of swastikas and antisemitic bullying’, which were placed on the Court’s file as submissions, as well as a number of additional aide memoire documents. The respondents provided the Court with a document detailing the number of classes, and size of those classes, at BSC across the relevant period. That document was marked as an exhibit.
TERMINOLOGY AND NAMES USED IN THESE REASONS
Antisemitism
This case is about alleged contraventions of the RDA. The RDA uses race, ethnicity and national origin as the attributes giving rise to differential treatment of the kind it prohibits. It does not use the term ‘antisemitism’. In some ways, ‘antisemitism’ may carry an imputation that is more extreme than “racially motivated conduct”. In s 9, the RDA makes no distinctions about the severity or gravity of conduct; only about its basis. Compare s 18C where, as I explain elsewhere in these reasons, there is an aspect of gravity or severity inherent in the prohibition. In their closing written submissions, the respondents eschewed the term ‘antisemitism’ (or “antisemitic conduct”) in favour of the term “racially motivated conduct”. They submitted the use of the terms “may obscure the kind of analysis required by the RDA”.
I accept that the term needs to be used carefully, conscious that it may encompass much more than the analysis required by the RDA. So much is apparent from my next findings about Professor Rutland’s opinions about a wider meaning of antisemitism. Professor Rutland’s opinion is that the term can also be used to encompass “anti-Zionism that seeks to delegitimise the State of Israel”. It is apparent from the definition used in her own report that this is an opinion she holds that lies outside the accepted definition of antisemitism. Since I have largely rejected the elements of the applicants’ case that turn on alleged statements about the State of Israel, it is not necessary for me to enter into any discussion on this issue. The RDA includes national origin, and to the extent that I have found the national origin of Guy as an Israeli citizen was a reason for Mr Varney’s conduct, those findings are based squarely on the terms of s 9 of the RDA, without any need to examine Professor Rutland’s opinion about an extended definition of antisemitism.
Therefore, when in these reasons I use the term antisemitism, I have done so bearing in mind the definition advanced by Professor Rutland in her evidence, which was not challenged by the respondents:
Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.
The definition above is the working definition adopted by the International Holocaust Remembrance Alliance. Professor Rutland explains in her report that this definition has been adopted by 37 countries, including Australia, and “hundreds” of non-governmental organisations. It was adopted by Australia after Australia became a full member of the IHRA in 2019. Professor Rutland states that at the Malmo Forum on Antisemitism in 2021, the then Prime Minister of Australia, Scott Morrison, made a formal statement adopting the definition as part of Australia’s pledge to fight antisemitism.
This definition sits comfortably with the conduct the RDA seeks to prohibit in s 9, and in s 18C subject to exceptions. It suggests, relevantly, the perception of a person or group as Jewish as being the reason for the conduct directed at them. That perception of being Jewish may plainly encompass the race or ethnicity of that person or group. In the context of the allegations made in this proceeding, I consider it is appropriate to use the term antisemitism as a descriptor for the student conduct in question. I do not use it as a substitute for the terms of the RDA, because I do not use it in relation to those alleged to have contravened the RDA in this proceeding, such as Mr Minack.
Names of student perpetrators
On 20 May 2022, the Court dismissed an interlocutory application made by the respondents: Kaplan v State of Victoria [2022] FCA 590. In that interlocutory application, the respondents had sought the suppression of the identities of 34 individuals whose names appear in the applicants’ pleadings and whose names also feature in the evidence. Many of those names are those of students who were at times referred to during the hearing as “student perpetrators” – students who engaged in, among other things, verbal and physical assaults, taunts, criminal conduct, Nazi salutes, racist assaults, battery and bullying of the applicants. Those students were not called as witnesses in the proceeding. They also were not named as respondents. Although there was insufficient justification for the making of suppression orders of the kind sought by the respondents in that application, neither is there are a need for the names of those students to appear in full in these reasons. Accordingly, in these reasons I will refer to those students only by their first names.
Other terminology used in these reasons
I have used the term leadership cohort in these reasons, usually together with a reference to Mr Minack and to BSC teachers. By this phrase I refer to those BSC teachers in leadership positions, namely Ms Podbury (while she was at BSC), Mr Minack (while he was principal and vice principal), Ms Angelidis, Mr Gargano and Ms Sentry. I do not include the relevant year level student coordinators (also referred to as student managers) in this description, because the evidence suggested they were often quite junior teachers. It was common ground that the year level coordinators were responsible for disciplinary decisions up to a certain level, beyond which the relevant decision (eg suspension) rested with Mr Minack as principal. However, in my opinion the year level coordinators did not, on the evidence, play a leadership role.
I use the terms Chronicle entries, Chronicle records or Compass records to refer to the records of student welfare and behaviour recorded by teachers at BSC, largely but not exclusively of negative student behaviour, within the digital management system Compass.
I use the term BSC records in these reasons to refer to the documentary evidence adduced as business records from the school, which includes emails, Chronicle records, teacher diary notes, counselling notes, forms and notices (relating to suspensions, for example), school reports, student learning plans or other types of plans, school newsletters and other similar school records.
I have used the term relevant period to describe the period covered by the applicants’ allegations; namely 2013 to 2020.
The applicants sought to employ a comparator (as is discussed further below in these reasons) in their arguments. The comparator for Jewish students was said to be students at BSC described interchangeably as “LGBT”, “LGBTQI”, “LGBTQI+” and “LGBTQIA+” in oral and written submissions. In these reasons, I will use the term LGBTQIA+ as a reference to lesbian, gay, bisexual, transgender, queer (or questioning), intersex, asexual, or other sexually or gender diverse people.
UJEB is a reference to the United Jewish Education Board, a not-for-profit organisation, that was described in the following terms by Jemma Katz, who was a UJEB madricha:
UJEB is a non-profit organisation that provides Jewish education for students who don’t go to a private Jewish school and J-Lunch is a program offered to those students at lunchtime where two youth leaders, for example, myself, would go into the school and provide – provide some casual – casual – yes – education, some fun games relating to Jewish festivals or Jewish law, traditions, things like that.
J-Lunch was also described as UJEB lunch in the evidence.
There were various madrichim who gave evidence as witnesses called by the applicants. Madrichim, also referred to individually as madrich or madricha, were described in the evidence as “youth leader[s]”, or “leader[s]” or “facilitators”. One madricha, Leah Hain, described her role as follows:
I would go into the schools and teach kids at public schools all about Judaism, what’s coming up in the Jewish calendar, what was going on with events concerning Australian and Israel, anything that they needed to know that was coming up, educate on traditional values and how Judaism works, as well as making sure that their welfare and health were taken care of in regards to their religion, making sure that the school environment was a safe environment and that they knew that they had a community and people to talk to.
I use the applicants’ first names throughout these reasons, which is broadly consistent with how the applicants were content to be identified during the trial. I have done the same for student witnesses where those witnesses indicated they were content to be identified by their first names.
THE RDA ALLEGATIONS
RDA s 9
Section 9 of the RDA provides:
9 Racial discrimination to be unlawful
(1)It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
(1A) Where:
(a)a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and
(b)the other person does not or cannot comply with the term, condition or requirement; and
(c)the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;
the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person’s race, colour, descent or national or ethnic origin.
(2)A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.
(3)This section does not apply in respect of the employment, or an application for the employment, of a person on a ship or aircraft (not being an Australian ship or aircraft) if that person was engaged, or applied, for that employment outside Australia.
(4)The succeeding provisions of this Part do not limit the generality of this section.
In Wotton v Queensland (No 5) [2016] FCA 1457 at [530] and [531] I explained my understanding of s 9, which I apply in these reasons:
It is critical, as Allsop J observed in Baird at [37], that provisions such as s 9(1) not be dissected into small pieces so that their intended holistic operation and meaning are lost. To describe s 9(1) in terms of a series of “elements”, as the respondents’ submissions do, is to take a step along the path to dissection. Nevertheless, s 9(1) can be seen as having a conduct-based limb and an outcome-based limb. First, there must be an act involving a distinction, exclusion, restriction or preference which is based on race, colour, descent or national or ethnic origin. This is the conduct-based limb. Second, the act (in the expanded character given to it by the first limb) must have either the purpose or the effect of nullifying or impairing a human right. This directs attention to the actual outcome of the act, if “effect” is the focus; or on what was intended, in a purposive sense, to be the outcome, if “purpose” is the focus.
The first limb looks to what happened, and its connection with race. The second limb looks to the outcome or consequences (actual or intended) of what happened.
(Original emphasis.)
In Wotton at [545] I also made these observations which are relevant to the current proceeding and which I adopt and apply:
Although Gageler J [in Maloney v The Queen [2013] HCA 28; 252 CLR 168] employs the language of s 10 (“to a more limited extent”) rather than the language of s 9 (“nullifying or impairing the recognition … on an equal footing”), the point is the same. The lack of dignity and respect that inheres in treating people in particular ways based on race lies in the difference between how the human rights and freedoms of those people are recognised and enjoyed and how the human rights and freedoms of people of other races are recognised and enjoyed. To answer the whole of the question posed by s 9(1), one must ask not only whether race is the reference point for the differential treatment, but also what is the nature and extent of the difference.
As I explain below, even if a “comparator” is not an essential element of the statutory prohibition in s 9, that is why comparison of treatment in an evidentiary sense can be an appropriate way to ascertain what was the true basis or reason for certain treatment.
There was no debate between the parties that the applicants’ case under s 9 was largely an ‘omissions’ or ‘failures’ case, relying on the terms of s 3(3) of the RDA, which provides:
For the purposes of this Act, refusing or failing to do an act shall be deemed to be the doing of an act and a reference to an act includes a reference to such a refusal or failure.
As senior counsel for the respondents accepted in closing submissions, the three broad categories of omissions or failures which were repeated in the applicants’ pleadings, concise statement, evidence and submissions were failures to remove antisemitic graffiti (mostly, but not exclusively, swastikas), failures to “discipline” perpetrator students and failures to “educate” students as a cohort, including student perpetrators but not limited to them.
The respondents contended in writing:
The RDA also requires the basis for the conduct to be identified; what is sometimes called the “true basis”. There is no requirement to show a “strict causal nexus”, but the applicants must show a “close relationship between the designated characteristic and the impugned conduct”. This gives rise to particular complexities where the allegation is a person omitted to do something based on race; that would seem to require some evidence the person first turned their mind to the matter.
(Original emphasis, footnotes omitted.)
In oral closings, senior counsel for the respondents developed this at various points. For example, he submitted:
But our short point there will be in an omissions case where it’s based – where you have to have a connection with – based on race, there needs to be at least some element of awareness, knowledge turning the mind. It can’t just be a pure omission case in the absence of any knowledge otherwise you won’t get the necessary based on race connection. And so in order for an omission case – no doubt omission cases can succeed, but frankly there aren’t that many of them. …
… it’s difficult to hold someone like the principal liable for a section 9 omission, absent something that suggests that he turned his mind to the point of decided not to do it or refused to do it or didn’t do it, omitted to do it, but for some reason it was based on race. And so that’s why we do emphasise that the applicant’s case really had not paid any attention to who is the person that did the act, what were the circumstances in which they did that act, what knowledge did they have at the time that they did that act? By simply aggregating it altogether and lumping it altogether under the label of “the school”, it makes it all completely impenetrable and completely impossible to analyse properly for the purposes of section 9.
Senior counsel also accepted, by reference to some of the authorities on negligence and the law in Victoria on Crown immunity, that much of the legal responsibility (and therefore the factual focus) comes back to the conduct of Mr Minack. In my opinion, this reality also arises from the very nature of a principal’s legal duties and functions at a school: in terms of the implementation of policies, the setting of standards of behaviour in students, and the setting of standards, tone and culture in terms of how staff at a school behave, react to various circumstances and deal with student behaviour. The leadership responsibility falls directly on a principal.
Appropriately, in his cross-examination, Mr Minack accepted this was the case, and the respondents’ submissions did not seek to walk away from that reality either.
I accept, as the respondents submitted, that since s 9 is about conduct, when in a given case allegations relate to refusal or failure, there must be some element of consciousness, or choice, in the actor. The justification for that, as senior counsel suggested, is that s 9 is concerned with the reason or basis for conduct – whether that conduct is positive conduct or a refusal or failure to do an act. In other words – the question is either – why did a person act as they did; or why did they refuse to act? The inquiry into that question may encompass some examination of the state of mind of the actor.
To take the simplistic example of the provision of a rideshare service. Suppose a Japanese person calls a rideshare, and either:
(a)the driver then charges the person twice the appropriate fare (the positive conduct being the charging of an inflated fare); or
(b)the driver then refuses to allow the person to get into the car (the conduct being a refusal within the terms of s 9 by reason of s 3(3)).
Putting to one side the effect on human rights for the purposes of this simplistic example, for a contravention of s 9 to be established an applicant will need to prove that the basis for either the positive conduct of charging an inflated fare involving a distinction, exclusion or preference based on race, colour, descent or national or ethnic origin (ie the less favourable treatment), or the omission/refusal of not allowing the person to get into the car, involving a distinction, exclusion or preference based on race, colour, descent or national or ethnic origin, was that the person was Japanese. The evidence may be circumstantial, but as the respondents submitted, in the second set of facts, at some point the Court will need to be persuaded about why the rideshare driver refused to allow the person to get into the car. That is likely to involve, as a forensic reality, some assessment by the Court of the state of mind of the actor – their attitude, their reasoning; their choices.
In the present proceeding, the applicants must prove that the failures they ascribe largely to Mr Minack as the principal of BSC had an element of (assuming failures can be proven) consciousness or choice in them, in order to be able to satisfy the Court that the basis for the distinction, exclusion or preference arising from the failures was race.
It is important to underscore that in the circumstances of the present proceeding, this exercise – asking whether the distinctions involved in the failures were based on race – is not confined to asking whether the failures were because the applicants are Jewish. That would not be accurately to apply s 9. The question is whether the failures involved a distinction based on race. Here, the Jewish race. The failures and distinction might be proven by reference to the applicants’ Jewishness being a factor in the failures to discipline student perpetrators appropriately, or failures to take adequate action to reduce the likelihood of bullying and harassment, in the sense of not as much regard being paid to the protection of Jewish students.
However, some of the allegations – such as the failures to remove graffiti – employ race in a different way, a way I consider permissible under s 9. In those examples, it is not so much the race of the applicants, as the race of the people who are the subject of the graffiti. In other words, the s 9 question is whether the failure to remove graffiti that is offensive to Jewish people (not just the applicants) involved a distinction (tolerance of graffiti) based on the graffiti being about Jewish people or being graffiti particularly offensive and triggering for Jewish people, rather than, for example, graffiti about sexual topics, or homophobic graffiti.
In terms of the approach to the evidence in deciding whether on the balance of probabilities conduct was “based on” race, there are at least two observations by Kiefel J (as her Honour then was) in Toben v Jones [2003] FCAFC 137; 129 FCR 515 which should be noted.
First, at [58], her Honour described the relationship between the s 9 act and race as subject to an inquiry whether “anything suggests race as a factor” in the act, or conduct.
This might also be expressed as the need to identify a sufficient connection between the restriction/distinction/preference produced by the conduct, and race or ethnic origin. In Hamzy v Commissioner of Corrective Services NSW [2022] NSWCA 16; 107 NSWLR 544 at [68], Basten JA said:
The necessary and sufficient connection between the restriction and race (ethnic origin) in the case of a disparate impact is the fact that it adversely affects persons of one ethnic group disproportionately. That is the fundamental criterion of disparate impact discrimination, founded on “effect”, not purpose.
Second, Kiefel J’s observations in Toben v Jones at [63] are helpful, with respect:
The inquiry is as to the true reason or true ground for the action (see Banovic at 186 per Dawson J). A person whose conduct is complained of might not always be a reliable witness as to their own actions. Their insight may be limited. Their true reasons may however be apparent from what they said or did. In some cases there may be other circumstances which throw light upon the reason for their actions.
(Original emphasis.)
As I observed in Wotton, by reference to the reasons of Allsop J (as his Honour then was) in Baird v Queensland [2006] FCAFC 162; 156 FCR 451 at [37], s 9 ultimately must be approached in its whole form. Dividing it into elements can tend to remove the focus from the purpose of the provision as a whole, which is to prohibit less favourable treatment on the basis of (relevantly) race, where that treatment had particular effects on human rights. See also Hamzy at [53], Basten JA.
Provisions such as s 9 are intended to operate in the real and often messy world of human experience and human engagement. They have a critical but not complicated objective – to make unlawful (and thus discourage) the differential and negative treatment of individuals because they happen to belong to one race, or have one kind of ethnic origin, rather than another.
There is a question about which attribute nominated in s 9 and s 18C is the correct attribute for Jewish people. The respondents accepted “national origin” was the applicable attribute to those aspects of the allegations that involved some of the applicants identifying as Israeli citizens, or as Israeli. The respondents also submitted that “ethnic origin” was an appropriate attribute to describe Jewish people. In Toben v Jones, the Full Court accepted both race and ethnic origin could be applicable, the primary judge having used both, and there being no debate on the appeal about that approach: see at [22], [37]-[38] (Carr J), [57] (Kiefel J), [153]-[154] (Allsop J). See also Hamzy at [59] (Basten JA) and the authorities there referred to. I propose to use the formulation of race in these reasons.
In her cross-examination, Professor Rutland said:
And being – the – how to define a Jew is so complex, because not all Jews are religiously observant. The Jewish identity can include national, ethnic, cultural – you know, all the cultural factors. I mean, culture includes religion, ethnicity, food. There’s so many elements to it. And there are so many different ways today that Jews identify as being Jewish. So it can – it is definitely ethnic from a Jewish perspective. You can have someone who’s totally irreligious, rather, and yet identifies strongly as being Jewish.
This holistic sense of Jewish identity came through in the evidence of many of the applicants’ witnesses. Being Jewish was for the applicants, I find, a way of identifying that was not restricted to their religious faith, but encompassed many aspects of their lives – how they dressed, who they associated with, what they were interested in, how they viewed the State of Israel, and how they saw themselves in their families and in the wider Jewish community.
The respondents correctly submit, and the applicants accept, that s 9 does not contain any requirements for proof of the circumstances of a comparator before a contravention can be found. That does not make comparators irrelevant, as the respondents appeared to suggest. Discrimination is about differential treatment. This raises the question – different from whom? The whole purpose of a comparator in a discrimination context is to assist in focusing on first whether there was differential treatment, and second on the reason for that treatment. Using a comparator who has different attributes, or who does not have a nominated attribute, can assist in a forensic and reasoning sense in identifying why a person was treated differentially (assuming that has been established).
The human rights relied on by the applicants
The applicants relied on a plethora of human rights for the purposes of their s 9 arguments in particular. The human rights relied on were expanded in submissions from what appeared in the statement of claim and the concise statement.
The rights pleaded or referred to in the statement of claim and the concise statement, as far as I can discern, included:
(a)the right to education;
(b)the right to security of person and protection (including from violence);
(c)the right to equality before the law;
(d)the right to access a public service;
(e)the right to equal participation in cultural activities;
(f)the right to freedom of thought, conscience and religion;
(g)the right to freedom of expression; and
(h)the right to preserve Jewish identity.
None of the applicants’ human rights were “nullified” by any of the conduct I have found proven. The term “nullified” in s 9 connotes circumstances where a person’s human rights are abrogated. The applicable effect in the circumstances of these proceedings is impairment, which connotes damaging or adverse effects on a person’s human rights. Further, the circumstances of this proceeding concern the enjoyment or exercise of human rights by the applicants, while they were students at BSC and in the context of their attendance at a state secondary school.
In the present circumstances as I have explained them, it is unnecessary to address all the human rights relied upon, because I am satisfied there were three human rights which were impaired in ways that had differing effects and therefore should properly result in distinct consideration in the Court’s awards of compensation. Even if there were other human rights of the applicants that were impaired, in my opinion they did not result in any different kind of harm that flows through to the awards of compensation. The arguments by the applicants’ counsel about the multitude of human rights contended to be engaged were scattered, undeveloped and little more than assertions. It is neither efficient nor necessary for the Court to trawl through them in an already lengthy judgment such as this.
Some of the human rights relied on, such as the right to freedom of thought, conscience and religion, were not impaired at all by the conduct I have found to have contravened s 9 of the RDA. There was no prohibition imposed on any of the applicants that impaired their rights to freedom of religion. They were free to wear religious clothing, and I have found that the only times in the evidence there were any incidents about their religious clothing (kippah, necklace etc) were either anomalous examples of conduct by an individual teacher, or part of the antisemitic harassment by students, who are not respondents to this proceeding. BSC policies appropriately recognised freedom of religion in students, and the evidence does not suggest any denial of this freedom in practice.
The three human rights I propose to consider in more detail are:
(a)the right to security of person and protection;
(b)the right to education; and
(c)the right of the applicants to preserve their Jewish identity.
The right to security of person and protection is expressed in that form in art 5(b) of the International Convention on the Elimination of All Forms of Racial Discrimination, and so is expressly picked up by s 9(2) of the RDA. In full, art 5(b) provides:
The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution;
The right appears in various forms across international instruments, most prominently in the first sentence of art 9(1) of the International Covenant on Civil and Political Rights:
Everyone has the right to liberty and security of person.
Though the remaining paragraphs of art 9 relate to deprivation of liberty, the right to security of person is considered a distinct right which applies regardless of whether a person is detained or not detained. The right protects individuals against intentional infliction of physical or mental injury, and carries with it an obligation to protect individuals from threats to life or bodily harm, from either government or private actors. See chapter 11 of Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (Oxford University Press, 3rd edition, 2013), and the Human Rights Committee’s General Comment No 35 at [9]. See also Wotton at [1514].
The applicants in their written closing submissions repeatedly refer to the right to “security of person / protection from violence”. For the latter component, the applicants also rely on art 19 of the Convention on the Rights of the Child. For example, the applicants submit at [21]:
Moreover, the Applicants’ right to security of person and protection (Art 5(b)) was violated by the Swastikas. Lerner states that the purpose of Art 5(b) is ‘to avoid any distinction in the protection of individuals against any violence, whoever inflicts it.’ (p59). Relevantly, Art 19 CRC delineates a poignant model for prevention of violence in all its forms, including mental violence (Art 19(1))), and the States’ obligations to respond to harm, for children. Art 19 is the core CRC provision for protection of children. Art 19 CRC binds people who have ‘the care of children’, including ‘education’, ‘school’ and institutional/government personnel. The definition of ‘violence’ extends to intentional and non-intentional acts of commission or omission by caregivers, causing physical, psychological or emotional harm.
(Emphasis in original, footnotes omitted.)
Article 19 of the CRC is expressed as follows:
1.States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
2.Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.
The respondents dispute the characterisation of art 19 as a “right”, in a footnote to paragraph [13] of their written closing submissions:
On the other hand, several of the “rights” the applicant relies upon impose obligations on the State Party to take specific action or to agree aspirational concepts, for example: Article 19 of the CRC places an obligation on a State Party to “take all appropriate legislative, administrative, social and educational measures to protect the child” from certain conduct.
While art 19 of the CRC is more expansive in setting out the measures to be taken, art 24(1) of the ICCPR does express a related concept as a “right”:
Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.
Though their submissions frequently elide art 5(b) of the ICERD and art 19 of the CRC, the applicants have not clearly developed the relationship they appear to submit exists between the right to security of person and the right of the child to protection (or, on the respondents’ contention, the obligation of the state to protect children). I agree that art 19 has some relevance to the right to security of person in the context where the victims of harm are children. However, I find that the right to security of person, as it is expressed in art 5(b) of the ICERD, is sufficient to capture the nature of the impairment alleged by the applicants, being physical and mental harm. To the extent that art 19 of the CRC, and the related rights of the child to protection, such as art 24(1) of the ICCPR, give content to the nature of the protection that should be afforded to children in protecting them from physical and mental harm, I have had regard to those articles to that extent only, and need not decide whether art 19 itself provides an independent right that is capable of being impaired for the purposes of s 9 of the RDA.
The right to education (or the right to education and training as it is expressed in art 5(e)(v) of the ICERD) is enshrined in art 28 of the CRC, art 13 of the International Covenant on Economic, Social and Cultural Rights and art 26 of the Universal Declaration of Human Rights. The right is articulated differently between these conventions, but not in ways materially relevant to the content of the right for present purposes. See the commentary of Christian Courtis and John Tobin in John Tobin (ed), The UN Convention on the Rights of the Child: A Commentary (Oxford University Press, 2019) at p 1059. The most detailed articulation of the right is found in art 13 of the ICESCR and is elaborated upon in commentary produced by the Committee on Economic, Social and Cultural Rights. Article 13(1) provides:
1.The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.
The right to education is recognised as a right enabling the enjoyment of other rights and one that “epitomizes the indivisibility and interdependence of all human rights”: General Comment 11 of the CESCR at [2]. The CESCR further elaborates on the content of the right in General Comment 13, adopting the “four A” framework of availability, accessibility, acceptability and adaptability: see General Comment 13 at [6]. The applicants make submissions in respect of the latter three of these features: see, for example, the applicants’ written closing submissions at [31] and [49]. I agree that “availability” in the sense of the ICESCR is not in issue in this proceeding. Accessibility requires educational institutions to be accessible to everyone without discrimination on any prohibited grounds. Acceptability requires the form and substance of education to be relevant, culturally appropriate and of good quality. Adaptability requires education to be flexible to adapt to the needs of a changing community and respond to the needs of students in diverse social and cultural settings. The right to education, like all rights under the ICESCR, imposes the tripartite obligation on the state to respect, protect and fulfil: see General Comment 13 at [46]-[48]. In the circumstances of this proceeding, the Court’s findings on the impairment of the applicants’ human right to education concern accessibility, insofar as it encompasses a safe educational environment, and acceptability and adaptability insofar as they encompass an educational environment that encourages respect of Jewish traditions as it might any other religious or racial or ethnic traditions, and discourages student behaviour and attitudes that involve insult, offence and humiliation towards students because they are Jewish.
The CRC expands on the right to education in art 29 by setting out the agreed aims of the education of the child, including “the development of respect for … his or her own cultural identity” (art 29(1)(c)). However, I agree with the submissions of the respondents that art 29 reflects an agreement between State Parties, and does not recognise an individual human right. To the extent that the applicants rely upon art 29 as a distinct right that can be impaired for the purposes of s 9, that contention is misconceived.
The right of the child to preservation of identity is unique to the CRC. It is not one of the rights expressly included in the remit of s 9 through s 9(2) because it is not listed in art 5 of the ICERD. However, art 5 of the ICERD is not to be treated as an exhaustive list of rights; rather, as stated in General Recommendation 20 of the Committee on the Elimination of Racial Discrimination, art 5 “does not of itself create civil, political, economic, social or cultural rights, but assumes the existence and recognition of these rights”: at [1]. It is therefore legitimate to look to other international instruments to give content to the phrase “any human right or fundamental freedom” in s 9(1). See Iliafi v Church of Jesus Christ of Latter-Day Saints Australia [2014] FCAFC 26; 221 FCR 86 at [62] (Kenny J, Greenwood and Logan JJ agreeing).
The text of art 8 of the CRC reads:
1.States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.
2.Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.
The article explicitly protects certain elements of a child’s identity, being “nationality, name and family relations as recognized by law”. Here, “nationality” is clearly engaged by the applicants who identify as Israeli. The term “identity” is otherwise undefined, and the Committee on the Rights of the Child has not published any definition of the term. The applicants submit that “identity” includes “matters of ‘cultural’ and ‘religious’ identity”. The applicants rely on the work of John Tobin and Jonathan Todres in their commentary on art 8 in the CRC Commentary in support of this submission.
Tobin and Todres provide useful insight into the drafting history of art 8, which reveals that the word “including” was used “so that other elements of identity will not be excluded”: see CRC Commentary at p 291. Construing the article in the context of surrounding articles would support a broader reading of the term, particularly the right of the child to be heard (art 12), the right to freedom of thought, conscience and religion (art 14) and the rights of indigenous children and those belonging to minority groups to enjoy their own culture, profess and practise their religion and use their own language (art 30). This is the position argued by Tobin and Todres in the CRC Commentary: see at pp 285, 295-6.
There is limited jurisprudence on the content of the right outside of the explicitly protected categories, but what case law there is tends to support a broader interpretation of the term “identity”. From the United Kingdom, in J v B and the Children [2017] EWFC 4 the Court relied on art 8(1) in finding that the preservation of the children’s Jewish identity outweighed the importance of contact with their transgender parent: at [185], [187]. J concerned three young children who were being raised in an ultra-orthodox Jewish community. Their father had transitioned to female and left the community. They and their mother remained in the community. The case concerned access by the father to the children. In a compassionate and insightful judgment, Jackson J found (with some reluctance) that only indirect contact should be permitted, and as part of his reasoning noted (at [185]):
These parents decided to bring up their children according to the narrow ways of the community, and they continue to agree about this. That being the case, the priority must be to sustain the children in the chosen way of life, preserving their existing family and social networks and their education. It is not to be forgotten that children have the right to preserve their identity (UNCRC Art.8), something that is a matter of particular pride to these children.
The New South Wales Court of Appeal found that art 8(1) was relevant to the issue of “cultural identity” in Re Tracey [2011] NSWCA 43; 80 NSWLR 261 at [48] (Spigelman CJ, Beazley JA agreeing), although the Court did not give any detailed reasoning. In Re Alex [2009] FamCA 1292; 248 FLR 312 at [180], Bryant CJ included art 8 as one of the rights being “particularly apposite” to a case regarding a child’s gender dysphoria.
In Campbell v Northern Territory of Australia (No 3) [2021] FCA 1089; 295 A Crim R 1, the applicant invoked art 8 as one of the bases for an (unsuccessful) s 9 claim regarding the impact of youth detention on the applicant’s Aboriginal identity, but the Court did not make any findings on this matter.
I am satisfied that “identity” is broad enough to incorporate the applicants’ Jewish identity and therefore that the right is engaged. In art 8, “identity” is about more than being given the capacity to prove a person is who they say they are: it is about more than identity documents and recognition of where a child belongs. It extends in my opinion to cultural and religious identity – to a child being able to develop and express who they are in terms of their race, their culture and their religion. In my discussion of Professor Rutland’s evidence, I have accepted her opinions about how important it can be for Jewish young people to be able to express and be proud of their cultural and racial identity. Doing so is an expression of their CRC art 8 rights.
Clearly, as with many human rights, the manner in which rights can be expressed or manifested may be justifiably limited or restricted in certain circumstances. Some of BSC’s rules and policies about uniforms for students from various racial and religious backgrounds are examples. As I have explained, there is no persuasive evidence that there was anything unlawful about the nature of those rules or polices or their implementation. In the context of the allegations I have found proven, the right to Jewish identity is engaged in terms of Mr Minack, and through him the leadership cohort and teachers at BSC, failing to take adequate steps to protect Jewish students from antisemitism, so that they did not have to hide or conceal their Jewish identity, or feel ashamed or humiliated because they were Jewish.
Therefore, for each of the individual applicants, I have considered any contraventions of s 9 in respect of these three human rights, and have considered the effects of impairing these rights in considering the appropriate compensation that should be given, where I have found a contravention of s 9.
RDA s 18C
Section 18C of the RDA provides:
18C Offensive behaviour because of race, colour or national or ethnic origin
(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a)the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b)the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
Note:Subsection (1) makes certain acts unlawful. Section 46P of the Australian Human Rights Commission Act 1986 allows people to make complaints to the Australian Human Rights Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence.
(2)For the purposes of subsection (1), an act is taken not to be done in private if it:
(a)causes words, sounds, images or writing to be communicated to the public; or
(b) is done in a public place; or
(c) is done in the sight or hearing of people who are in a public place.
(3) In this section:
public place includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.
(Original emphasis.)
That conclusion means none of the applicants can recover aggravated damages in negligence. Since the exception in s 28LC(2)(a) has been found not to apply to Zack in respect of the park incident, that exception does not provide a basis to award aggravated damages to Zack. Aggravated damages would be available to Liam, but I do not consider there are any aggravating factors to justify an increased award for the bathroom incident.
That leaves exemplary damages. The New South Wales Court of Appeal in Corby suggested exemplary damages should be separately treated, because of their essentially punitive nature, and their focus on fault. That feature of exemplary damages is emphasised in the following passages from SB v State of New South Wales [2004] VSC 514; 13 VR 527. In that case, Redlich J explained the threshold for exemplary damages, and the rationale for the level of the threshold, in terms I respectfully agree with and adopt, at [634] and [637]-[638]:
It is simply not enough for a court to disapprove of a defendant’s conduct. Exemplary damages ought only to be awarded for the more flagrant instances of “conscious wrongdoing” where the conduct of a party is sufficiently reprehensible to require the court to signal its disapproval of that conduct by way of an award of exemplary damages. Such conduct by a party bears the traces of criminal conduct which notionally could be described as conscious, voluntary and deliberate.
…
In assessing the conduct of a defendant, the court must be satisfied that the behaviour is so reprehensible as to warrant punishment which does not merely irritate but stings. The conduct must be so wrongful and reprehensible that it calls for manifest disapprobation by the community; the conduct must require punishment to deter the wrongdoer and others of like mind from similar conduct; and similarly the conduct must attract something more than compensation to ameliorate the plaintiff’s sense of grievance.
Though the department’s failure to act warrants disapproval it did not occur in contumelious disregard of the plaintiff’s rights. However one views the department’s intransigence and its consequences for the plaintiff, its conduct was not of a character which attracts an award of exemplary damages.
(Footnotes omitted.)
The applicants’ counsel spent very little time developing in the evidence, or in their submissions, how exemplary damages claims were put. Again, there was a scattergun approach, full of assertions not backed up by detail or evidence references, let alone by any careful adherence to the pleaded case. The latter was a point I made to the applicants’ counsel during final submissions when he started suggesting that exemplary damages could be awarded against departmental officers, who were not respondents, and against whom no pleaded allegations had been made.
Even if exemplary damages were available, they would only be available for Liam being the only applicant for whom damages in negligence are available, under the exception in s 28LC(2)(a) of the Wrongs Act. In terms of the harm caused by the principal’s breaches of duty of care to him, that conduct was not so “wrongful and reprehensible” as to call for punishment by way of an award of exemplary damages.
Aggravated or exemplary damages under the RDA
I explained in Wotton why I do not consider exemplary damages are available under the RDA: see [1784]-[1796]. Neither party sought to contend otherwise, at least before me.
On the other hand, in this proceeding it appeared to be accepted by the respondents that aggravated damages were available, being compensatory in nature. That was the view I took in Wotton: see at [1728]-[1737]. And as to the compensatory purpose of s 46PO, see Gama at [94], French and Jacobson JJ, to which I referred in Wotton.
In Wotton at [1734] I also noted that:
In Hall v Sheiban [(1989) 20 FCR 217] Lockhart J (at FCR 239–40; ALR 523–4) and French J (at FCR 282; ALR 570) were prepared to assume, without deciding, that aggravated damages may be available under s 81(1)(b)(iv) of the Sex Discrimination Act.
In Wotton at [1733] I said:
In some cases, the aggravation comes not from conduct directly associated with or following on from the contravening conduct, but from subsequent conduct that has the same effect. In Elliott v Nanda (2001) 111 FCR 240; [2001] FCA 418 (Elliott) at [179]–[185], Moore J set out the kinds of additional circumstances which might justify such an award. All concerned the manner in which a respondent or defendant conducted proceedings brought against her, him or it. An example is Houda v New South Wales [2005] NSWSC 1053, in which aggravated damages of $20,000 were awarded for the way the defendant conducted its defence of the proceedings against the plaintiff.
I went on to find there were two difficulties for the applicants’ aggravated damages claim in Wotton: see [1737]-[1744]. Those difficulties are not present in the current proceeding in relation to the only conduct I have seriously considered might warrant an award of aggravated damages.
The particular conduct is Mr Minack’s conduct after the park incident on Zack, in not contacting Zack or the Snellings to see how Zack was and to follow up on what should be done by BSC to protect Zack going forward, and what should be done by BSC in relation to the student perpetrators. Mr Minack is the principal respondent against whom I have made findings of contravention under s 9 of the RDA. The failures and omissions I have found to have been based on race, and to have impaired the applicants’ human rights, were, ultimately, his failures and omissions. Thus the first difficulty in Wotton is not present. There was evidence about Mr Minack’s almost total silence after this terrible event, and he was cross-examined about it. A sufficient evidentiary foundation exists, and the second difficulty identified in Wotton is not present.
The key aspects of the evidence were the following.
The assault in the park occurred on 2 April 2020.
Mr Minack accepted he took no steps to try to move any of the student perpetrators out of BSC, although he was willing to help Zack move away.
He prevaricated in cross-examination about why he did not seek to discipline Nova for her role in the matter.
He agreed he had no discussion with Ms Angelidis about how they could keep Zack safe at school. Further:
And you did not contact Natalie to have a meeting about how to make Zack safe, did you?---Not personally. No.
And you didn’t send her any information about how to make him – Zack safe by email?---Not personally. No.
Mr Minack conceded that when in his evidence-in-chief he had asserted he took steps after the assault to make sure “everything that was needed to be done to successfully transition Zack back to school was taken care of, including linking him to the wellbeing team”, what in fact happened was a “safety plan” – for Ramin – and nothing directly for Zack.
Mr Minack in his evidence described Ramin as “a not very well socialised boy at all”, which in light of how he had just been taken through in cross-examination what happened to Zack in the park, was a remarkable downplaying of a vicious attack. It would have been remarkable for any person to downplay the attack by such a description of the perpetrator, but it is especially remarkable to have a principal of the school concerned do so in a trial of the kind in this proceeding. If ever there was an occasion for a wholesale expression of sympathy and outrage at what happened to Zack, this proceeding was the place. Mr Minack gave no such indication.
Mr Minack’s first email to Ms Snelling after the attack (27 April 2020) said:
I hope you and your family are all well, and that Zack has recovered from the assault.
He then went on to say he had spoken to the principal at McKinnon Secondary College to see if they could take Zack. The emails in evidence show that Ms Snelling then had to pester Mr Minack to get responses out of him. Mr Minack’s attempts with McKinnon Secondary College were unsuccessful, although it is unclear how hard he tried.
There is no evidence at all that Mr Minack even telephoned Ms Snelling to see how Zack was after the attack. This is a BSC student who had been viciously assaulted by other BSC students, and the police had become involved. It is astonishing that Mr Minack showed no common human decency towards the Snellings, let alone the care and empathy that a principal ought be expected to show.
This is how Ms Snelling described herself feeling after the assault:
I was frightened, scared, angry that this had even happened. And when I had to sit there listening to Zack give his statement to police and he was able to name most of the offenders, it cemented for me exactly who I thought had done it, and those were the students that had been bullying him at Brighton Secondary for so long.
It was apparent from Ms Snelling’s evidence, and from Senior Detective Constable Lordanic’s evidence, that the latter had spoken to Mr Minack shortly after the assault. Yet still Mr Minack did not contact the Snellings, which is frankly bizarre. This was Ms Snelling’s evidence which I accept entirely:
So what did you do – after you found out that he had been speaking to Mr Minack, what did you do?---I immediately emailed Mr Minack requesting that he contact me and had said, “I believe that you have been speaking with the police in relation to an incident involving my son,” to please contact me.
Could we please get up tab – volume 5, tab 38. Is that the email?---Yes, it is.
And what happened after?---Mr Minack phoned me a short time after to let me know that he was working with the police and was aware of the matter and asked if Zack was okay.
Did Mr Minack ever indicate surprise in relation to this incident?---No. He appeared to know about the incident.
And so to the best of your recollection, what did you say to each other in that conversation?---To the best of my recollection, I asked him have you been contacted by the police in relation to an incident with my son and to do with that set of boys. And he had confirmed that he had spoken with Mister – not Mister – Constable Lordanic and was aware of the incident in the park and that he would be working with the police.
And how concerned did he sound at that time?---Well, he just simply said, “Is Zack okay?” It was just – I don’t know. Didn’t seem to have major concern.
And around this time did Ms Angelidis contact you at all to check up on Zack?---No.
And what was her role again?---The assistant principal of the school and to manage – behaviour management of students at the school.
And what about the Brighton Secondary welfare team. Did you get a call from Peter Mangold?---No.
What about Kylie Mayers?---I don’t even know who she is, no.
Tania Vairamuttu?---No.
What about Karen Gibson?---No.
What about Jess Giffin?---No.
So did anyone else from the school contact you?---No, it was purely Mr Minack and that was only off the back of me emailing him.
This behaviour, while to be deplored, is consistent with what I have found to be Mr Minack’s attitude to the welfare of Jewish students at BSC. It was his responsibility to direct his staff to assist Zack and his family. I do not consider the fact of COVID-19 lockdowns are any kind of sufficient excuse – telephones were still working. Exemptions for travel existed. Zack had been interviewed by police and Mr Minack no doubt could have justified visiting the Snellings. In any event, Mr Minack did not proffer COVID-19 restrictions as a reason for his inaction.
Ms Snelling had been proactive (rather than Mr Minack being proactive) in trying to find a way for Zack safely to return to school. She wrote this on 12 May 2020 to Mr Minack:
We are concerned that if schools are returning on 9 June that Zack is going to be nervous about returning as there doesn’t seem to be a plan from the school as to how these kids who assaulted him are going to be managed in the school day in order for Zack to be safe at school.
The evidence shows there was no plan. I infer that was because Mr Minack was quite content for it to be Zack who left BSC. That was the path of least resistance. The victim could leave.
Ms Snelling gave the following evidence, which I also accept:
What, if any, assurance did you get from the school about his safety?---I didn’t.
So what had you received in the past from Mr Minack or Ms Angelidis?---Well, in our discussions or emails, I would be asking for their reassurance, and it appears that I really didn’t get it. It was putting a safety plan in place, which meant talking to a student or two, telling them to stay away from my son. The odd – I think it was a one-day suspension where they didn’t have to come to school; have some fun at home; it’s a day off school. But my son went to school scared for his life, wondering whether or not he was going to get through the day. So it was very, very upsetting. I was angry and disappointed that they appeared to not be able to put in place something for Zack to make sure that he was safe.
Where would you have liked Zack to stay, if you could?---We – my husband and I would have liked him to be able to stay at the school if they could actually get rid of these group of kids that were causing the issues throughout this time. Had they been able to be expelled and clean up the school, then I would have felt okay to keep him there. He wanted to stay. He had made friends at the school.
She explained how Mr Minack:
completely ignored my request to want to meet with him and/or Lee Angelidis, the assistant principal, to try and make a plan to ensure his safety, and goes straight into wanting to see and make inquiries at Bentleigh Secondary. And it was extremely dissatisfying that he writes, “Sorry to disappoint you in this.” He didn’t care. I think by this stage, my feeling was he didn’t want us there any more.
Mr Minack’s reply was minimalist when told by Ms Snelling that Zack was leaving BSC. It bears repeating:
Dear Natalie,
Thanks for letting me know.
I will ask the registrar to prepare exit forms for your signature.
I am sorry we could not make things work out for Zack here, and hope it goes well for him at his new school.
Yours sincerely,
Richard
That is in response to an email where Ms Snelling had said:
It does sadden us and is terribly disappointing that Zack was unable to safely stay at BSC to continue his education through to Year 12.
So, even at this point, after Zack being regularly bullied and harassed at school and cyberbullied (contrary to BSC policies which there appears not to have been any attempt to enforce), being physically assaulted in a classroom, having death threats sent to him, and then being beaten and robbed in a park, all Mr Minack could say was that he was sorry things didn’t work out for Zack. That is a reaction that was insensitive and lacking in empathy.
One further piece of evidence from Ms Snelling illustrates the lack of empathy, and how it filtered down to other BSC staff:
Did you receive a phone call from Mr Minack?---No.
So was there any other correspondence in relation to him staying?---No.
Any safety support plan?---None.
Was there any mention of the six people who had been involved in the assault and their likelihood of staying?---Didn’t hear anything.
So did you have any further communication with him?---I don’t believe so.
And what about anyone from the welfare team?---None.
And then, so after that, did you let the teachers know at the school that Zack was leaving?---Yes, I did. I sent an email to his classroom teachers that he specifically had to inform them that, due to the severe bullying that he had endured throughout his time at Brighton Secondary, that it was not safe for him to be at the school, and that he would be continuing to learn at home for those last two weeks of term 2, being supervised either by my husband, my mother-in-law or myself.
So once you had made the decision, so what further contact did Zack have with Brighton, and for how long, roughly?---He didn’t, other than attending online lessons and completing what work he could for those last two weeks. There was no further contact.
I find no other staff from BSC contacted the Snellings either. It is difficult to imagine how isolated they and Zack must have felt. Even allowing for the challenges of communicating through COVID-19 lockdown, there is simply no reasonable excuse for an absence of sympathetic and caring phone calls and emails from Mr Minack and from his staff, especially the wellbeing staff. There was no excuse for at least attempts to secure permission to visit the Snellings and speak to them in person. Zack was still an enrolled student at BSC at this time.
The underlying reasons for Mr Minack’s attitude to Jewish students, and his tolerance of high levels of antisemitism amongst BSC students, were simply not explored by the applicants’ counsel in the evidence. However, that is not a necessary matter for proof in order to be satisfied, as I am, that aggravated damages should be awarded to Zack under the RDA. I find Mr Minack’s conduct after the park incident caused further humiliation and distress to Zack, and to his family. It was the starkest example of Mr Minack’s lack of care for the needs of a Jewish student at BSC.
Tellingly, his behaviour was similar to his behaviour with Liam and Ms Meltzer. The similarity of his reaction, many years apart, confirms to me that Mr Minack was unable to treat Jewish students as a principal in his position should have treated them, and was unwilling to confront or address antisemitism at BSC. The fact that the only action Mr Minack was interested in taking was to try and have Zack removed from the school is a stark and extreme example of the differential treatment he was prepared to give to Jewish students. I find it inconceivable that if Zack had been a non-Jewish female student who had been assaulted in a park by other BSC students, Mr Minack would have behaved in the same way.
I consider Zack should be awarded $30,000 in aggravated damages as part of his compensation for Mr Minack’s contravention of s 9 of the RDA. Mr Minack’s conduct after the park incident, but really as part of a course of conduct of downplaying what had happened to Zack at BSC, increased Zack’s hurt (see Ibbett at [35]) and Zack should be compensated for that.
OTHER RELIEF CLAIMED: RESOLUTION
In addition to damages, the applicants in their originating application also seek:
(a)a public apology from each respondent;
(b)a declaration from the State that the respondents have committed unlawful discrimination and directing them not to repeat or continue such unlawful discrimination;
(c)an order that all staff at BSC and other schools under the control and management of the State undergo mandatory training and professional development in relation to antisemitism (including anti-Israeli conduct) and in relation to racial discrimination more broadly; and
(d)an order that all schools under the control and management of the State run mandatory, age appropriate, specialised training/courses for all students in relation to tolerance, stand-up behaviour, bullying, antisemitism and discrimination, to be provided by appropriately qualified organisations.
Apology
As to the apology, the applicants submit that the Court should order an apology from each respondent, as this may vindicate the applicants in the community’s eyes and inform the public of public wrongdoing. In closing written submissions, the applicants indicated that they seek either an apology or a public statement. The applicants rely particularly on Creek v Cairns at [34], Haider at [21], Eatock at [465]-[466], and Carter.
With respect to the apology given by Mr Minack in the witness box as part of the trial, counsel for the applicants repeated that it was his instructions to seek a further apology, and that this apology had only been made with respect to three of the five applicants.
The respondents submit that they are unable to sensibly engage with the apology sought by the applicants, because the applicants have not provided the wording of any such apology. The respondents also submit that, if the Court is minded to order an apology, then, citing Wotton at [1570]-[1591], the State is the appropriate respondent to be ordered to make the apology as an institutional apology.
In Wotton at [1565], after examining the authorities, I observed that the cases make it clear that whether an apology is an appropriate remedy will be fact and circumstance dependent. I discussed in detail domestic and international authorities on apologies. At [1584] I concluded that the Court needed to be satisfied that a Court-ordered apology is an act which would redress damage suffered by the applicants.
I consider a sincere apology on behalf of the State, since BSC is a State-run school, will go a considerable way to assisting to redress the hurt the applicants all feel. I referred in Wotton at [1591] to the character of an institutional apology. In modern Australian public life, the institutional character of an apology is well understood, and it is often considered highly meaningful to those receiving it. My impression from the applicants and their families is that they would find an apology meaningful.
Part of the redress process should be for the State, in light of the Court’s reasons, to propose itself a form of apology, and for the applicants to consider it. If the parties cannot agree on a form of apology to be given by the State, then the matter will have to return to the Court and the Court will impose a form of apology. That is not my preferred course, but this is a case where I consider this remedy has real work to do, coming from the State. That said, the parties must now behave responsibly and seek to agree the form and content of an apology, pursuant to the Court’s orders. If they cannot reach agreement, the Court will need to consider whether it is appropriate for the Court to impose a specific form of apology on the State, and to prescribe the form the apology should take. Depending on what is proposed, it may nor may not be appropriate for the Court to be engaged in that exercise. That is not a question of power, but a question of discretion. Without mutual agreement on the form and content of an apology (or apologies), the applicants need to understand they risk receiving no Court-ordered apology at all, if the Court considers what they seek is unreasonable or inappropriate.
I do not consider Mr Minack should be ordered to apologise. He was offered a chance to do so in the witness box, and could not bring himself to do more than to say with hindsight he was sorry. But what he was sorry for, as he expressed it, was the way the applicants felt. There was no recognition of any failures on his part. There was certainly no recognition of differential treatment. I do not see any point in ordering Mr Minack to apologise. He does not consider he has done anything unlawful. The Court’s findings say otherwise. He will have to live with them. That is sufficient.
I do not consider Mr Varney should be compelled to apologise to Guy. He did not accept he engaged in much of the behaviour alleged. Any apology from him would not be sincere, and I did not get any sense Guy wanted one.
Declaration
The respondents submit that there is no basis for the declaration sought by the applicants. Either, they submit, the applicants succeed on their negligence claims and the declaration serves no additional purpose or, alternatively, the applicants fail in their negligence claims and the declaration has no basis to be made. The applicants made no discernible substantive submissions on this point that were separate to their submissions regarding the applicants’ claims in negligence.
Without any justification advanced on behalf of the applicants for declaratory relief in relation to their negligence claims, I accept the respondents’ submissions that declaratory relief is unnecessary.
However, as I did in Wotton, I consider it is appropriate to grant declaratory relief under the RDA.
Training
As to orders regarding training, the respondents submit that such orders are unnecessary, as the Court has heard evidence that the school has implemented training in relation to antisemitism at the school, particularly arising out of the implementation of the recommendations of the Worklogic report. The applicants instead submit, without reference to any specific evidence, that the evidence of the respondents’ witnesses suggests that the orders need to be implemented and they remain pressed.
There was no evidentiary foundation laid by the applicants’ counsel to press for this kind of relief. The evidence did demonstrate that the implementation of the Worklogic recommendations had some effect at BSC. No doubt the publication of these reasons for judgment will also have an effect. Orders about training are likely to involve some level of supervision by the Court, and reporting, and to lead to further disputes about adequacy. I do not consider they are likely to enhance the finality that final orders should bring to matters between the parties. None of the applicants remain at BSC. The Court can be confident the State will carefully consider the Court’s findings. What it then does in terms of practices at State secondary schools – whether at BSC or more widely – is a matter for it.
CONCLUSION
There will be orders in accordance with these reasons.
The applicants are entitled to a costs order, capped in accordance with the Court’s orders of 27 October 2021.
If the parties seek any further orders, or variations to the orders made, the Court will consider any proposed additional or varied orders. The parties will be given 15 working days to file any proposals, supported by submissions of no more than five pages.
I certify that the preceding one thousand, eight hundred and six (1806) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Mortimer. Associate:
Dated: 14 September 2023
SCHEDULE OF PARTIES
VID 391 of 2021 Applicants
Fourth Applicant:
ZACK SNELLING
Fifth Applicant:
LIAM ARNOLD-LEVY
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