Laalaa v Director General, Department of Education and Training (EOD)

[2009] NSWADTAP 56

Appeal Panel - Internal

CITATION:	Laalaa v Director General, Department of Education and Training (EOD) [2009] NSWADTAP 56
PARTIES:	APPELLANT Ahmad Laalaa RESPONDENT Director General, Department of Education and Training
FILE NUMBER:	089084
HEARING DATES:	6 July 2009
SUBMISSIONS CLOSED:	6 July 2009
DATE OF DECISION:	29 September 2009
BEFORE:	O'Connor K - DCJ (President); Pritchard S - Judicial Member; Antonios Z - Non-Judicial Member
CATCHWORDS:	EQUAL OPPORTUNITY – Racial Discrimination – Victimisation – Complaints Dismissed – Appeal – Procedural Fairness – Non-Admission into Evidence of Covert Recording of Conversations – Fact Finding – Extent of Duty to Give Reasons – Lawfulness of English Language Requirement – Appeal Dismissed – Anti-Discrimination Act 1977, ss 7, 8, 50
DECISION UNDER APPEAL:	Laalaa v Director General, NSW Department of Education and Training (No 2) [2008] NSWADT 327
FILE NUMBER UNDER APPEAL:	071072
DATE OF DECISION UNDER APPEAL:	12/08/2008
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Evidence Act 1995 Listening Devices Act 1984
CASES CITED:	Agbaba v Witter (1977) 51 ALJR 503 Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 Devries v Australian National Railways Commission (1993) 177 CLR 472 Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473 Laalaa v Director General, NSW Department of Education and Training (No 2) [2008] NSWADT 327 Mifsud v Campbell (1991) 21 NSWLR 725 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 State Rail Authority of New South Wales v Earthline Constructions (1999) 160 ALR 588
REPRESENTATION:	APPELLANT In person RESPONDENT P Griffin of counsel / L Watson, legal officer, Department of Education and Training
ORDERS:	Appeal dismissed, subject only to consideration of any costs application

REASONS FOR DECISION

1 On 15 February 2007 the appellant complained to the Anti-Discrimination Board about statements and conduct on the part of officers of the respondent Department and on the part of a fellow student in a study program. The appellant is Lebanese born and a Muslim. He referred in his complaint to several events that he said had occurred during 2006 and early 2007. On 29 June 2007 the Board referred the complaint to the Tribunal, to be dealt with under the Anti-Discrimination Act 1977 (ADA), as it had formed the view that the matter was not able to be resolved by conciliation. The referral report advised that the appellant complained of both ethno-religious discrimination and victimisation.

2 The appellant holds a degree with honours in Engineering Science from the University of Balamand, Lebanon, conferred September 2001. He migrated to Australia around 2001. He proceeded to study at the University of New South Wales in 2002, and obtained the degree of Master of Engineering Science at the University of New South Wales. In 2005 he applied to the Department for a Teacher Education Scholarship. He was successful. He entered into a Deed of Agreement with the Department in February 2006. He elected to train as a teacher of mathematics, engineering and industrial technology.

3 He undertook the Graduate Diploma of Education at the Australian Catholic University (Strathfield Campus), which he completed. As part of the course requirements, he undertook the practical teacher training element, by way of what is called a ‘practicum’, at a State high school for four weeks in the April-May period of 2006.

4 In September 2006 he attended an interview at the Department to assess his suitability for employment as a teacher. He was recommended for employment subject to assessment of his capacity to teach in English. The Department makes this assessment by way of a test known as Professional English Assessment for Teachers (PEAT). He objected to being required to undergo this assessment. The Department decided in November 2006 to exempt him from this requirement.

5 In January 2007 the Department undertook a further review of his suitability for appointment as a teacher. He was advised on 2 February 2007 that he had been assessed as not suitable. The review had been prompted, according to the Department, by the nature and content of the communications he made with the Department over the decision to require him to undergo PEAT, and the nature and content of further communications that had occurred after he was exempted. The decision was taken by the Minister on Departmental recommendation, and was substantially based on an assessment report that included an interview of the appellant done by an independent consultant with relevant experience in such matters.

6 In his complaint to the ADB and in his case as presented to the Tribunal, the appellant referred to the way he was treated by the teacher supervisor during the practicum, the way he was treated by a fellow Grad Dip Ed student doing his practicum at the same school at the same time, the imposition by the Department of the PEAT requirement and the way in which the Department dealt with him before and after its reversal of its previous decision to employ him.

7 He referred to s 8 of the ADA which is headed ‘Discrimination against applicants and employees’. Section 8 provides:

‘ 8 Discrimination against applicants and employees

(1) It is unlawful for an employer to discriminate against a person on the ground of race:

(a) in the arrangements the employer makes for the purpose of determining who should be offered employment,

(b) in determining who should be offered employment, or

(c) in the terms on which the employer offers employment.

(2) It is unlawful for an employer to discriminate against an employee on the ground of race:

(a) in the terms or conditions of employment which the employer affords the employee,

(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or

(c) by dismissing the employee or subjecting the employee to any other detriment.

(3) Subsections (1) and (2) do not apply to employment for the purposes of a private household.’

8 It will be seen that this section is concerned with discrimination on the ground of ‘race’, and the meaning of ‘race’ under the Act includes ‘ethno-religious’ origin (s 4). There was no dispute in the case that his ethnic origin is ‘Lebanese Muslim’.

9 The appellant contended that his was a relationship that fell within the protection of s 8. The Tribunal held that he was not in an employee/employer relationship or an applicant/employer relationship in the period of the practicum either vis a vis the teaching supervisor or the fellow student, nor was he in a protected relationship in the period after he was informed that he was not to be employed. In case it was wrong in that analysis, it went on to examine those complaints. In relation to the complaints belonging to the period September 2006 to January 2007, it held that he was in a relationship protected by s 8.

10 Whether conduct that occurs within a protected relationship constitutes unlawful discrimination is governed by s 7, which provides:

‘ 7 What constitutes discrimination on the ground of race

(1) A person ( the perpetrator ) discriminates against another person ( the aggrieved person ) on the ground of race if, on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or

(b) segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or

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

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

11 The appellant referred in support of his further complaint of victimisation to various events in the period from 1 to 14 February 2006, most importantly to an email he sent at 8.35 pm on 1 February 2006 to the Manager, Employment Screening at the Department (Ms Willmott). In the email he expressed the view that he had been dealt with in a racially discriminatory way by the Department, and referred to his rights under the ADA. He contended that the decision, of which he was informed on 2 February 2007 with the employment screening officer constituted victimisation within the terms of s 50. Section 50 provides:

‘ 50 Victimisation

(1) It is unlawful for a person ( the discriminator ) to subject another person ( the person victimised ) to any detriment in any circumstances on the ground that the person victimised has:

(a) brought proceedings against the discriminator or any other person under this Act,

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.’

The Tribunal Proceedings

12 The Equal Opportunity Division of the Tribunal heard the appellant’s case on 7 January, 17 and 18 April 2007, submissions closed 30 June 2008, and delivered its decision on 8 December 2008: Laalaa v Director General, NSW Department of Education and Training (No 2) [2008] NSWADT 327. (The decision was initially published to the internet, and then taken down following representations from the appellant. This matter is taken up further at the end of these reasons.)

The Tribunal’s Reasons

13 In its decision the Tribunal refused an application from the Department for summary dismissal of the complaint on the ground that it was frivolous and vexatious (ADA, s 102).

14 It divided the complaints into four groups: allegations against the teaching supervisor at the practicum (Mr Tsiakoulas) alleging that he engaged in slurs against the appellant relating to his background; allegations against a fellow student alleging that he had also engaged in slurs towards him; allegations against the Department about PEAT relating to its insistence that he submit to the tests and its ultimate decision that he should be treated as exempt, as he had asserted; and complaints against the Department over its refusal to employ him.

15 The Tribunal found that the evidence did not prove the allegations against the teaching supervisor. The Tribunal’s reasons make a number of negative assessments of the appellant’s credit and qualities as a witness (exaggeration and embellishment of conversations, reasons [26]; exaggerating and misinterpreting innocuous events, reasons [31]; suspicious tendencies, reasons [31].

16 The Tribunal found, contrary to the appellant’s submissions, that he was not an overseas trained teacher. He was, simply, an overseas University graduate who wished to qualify as a teacher in Australia. Consequently it was open to the Department to treat him as potentially affected by the PEAT requirement. The Tribunal rejected the appellant’s assertions that the policy constituted direct or indirect discrimination on the ground of race (s 7(1)(a) and s 7(1)(c)). As to the allegation of direct discrimination, the Tribunal found that the requirement to undergo PEAT was not based on race but based on where the candidate had obtained his tertiary qualifications. The decision ultimately not to require him to undergo PEAT was based on his complaints, not race. As to the allegations of indirect discrimination, the Tribunal dismissed them on the basis that the comparator test was not infringed, and most importantly on the basis that the requirement was not unreasonable in the circumstances.

17 As to the alleged refusal of employment, the Tribunal referred to its earlier finding, in dealing with the complaint against the teaching supervisor that he was not at the relevant times an employee of the Department. His acceptance of the scholarship, his receipt of payments under the scholarship and entry into the Diploma studies had not made him an employee of the Department.

18 However, it was permissible for an employment-related discrimination complaint to be brought by a person who has been refused employment (ADA, s 8(1)(b)). The Tribunal dealt with the appellant’s complaint so far as it affected the period when he was an applicant and up to the point of withdrawal of its decision to engage him.

19 The Tribunal referred to the report prepared by the independent reviewer for the Department, Mr Warren Fahey. The report dealt with the appellant’s suitability for employment. In that report Mr Fahey referred to many of the communications that the appellant had made during the year with persons in authority at the school or in the Department over his circumstances. They were replete with abusive language and swearing. Mr Fahey concluded that he was not suited to employment as a teacher. In particular, he was concerned that the appellant had ‘a propensity to become involved in heated argument and subsequent irrational behaviour’. He expressed concern about his ability to maintain a calm demeanour in the classroom, and the possibility that he would become involved in disruptive disputes within the school community.

20 The Tribunal was satisfied that Mr Fahey’s report provided the ‘real reasons’ for the decision to refuse the appellant employment. It rejected his complaint of direct discrimination.

21 It also rejected a complaint of indirect discrimination that referred to the fact that the appellant was required to attend a second suitability interview, even though he had been found suitable at an earlier interview conducted in September 2006.

22 Next the Tribunal dealt with the complaint relating to the employment screening officer. The appellant referred, first, to his meeting with her held on 2 February 2007. At that meeting she advised him of the outcome of the review conducted by Mr Fahey and the decision of the Minister. The Tribunal referred adversely to the appellant’s evidence, and essentially preferred the employment screening officer’s account of the meeting, based on her contemporaneous file note and the consistency of her evidence at hearing. The Tribunal was satisfied that there was nothing that might be regarded as a racial or religious slur. The appellant referred, secondly, to a phone call he made to the same officer on 8 February 2007. He asked for a review of the decision. He also asked about whether he could apply for a position in the independent or Catholic school sectors. The officer gave him information in those regards. She acknowledged that in the course of that conversation she said words to the effect that she appreciated that he may have difficulty accepting decisions being conveyed to him by a woman in a position of authority. The Tribunal found ([79], reasons), closer to the version of the conversation given by the appellant, that the officer did make a comment ‘to the effect’ that the appellant ‘may have difficulty accepting a decision made by a woman because in his culture it is not usual for women to be in authority and for their decisions to be accepted.’

23 As noted earlier, the Tribunal held, in any event, that the circumstances did not fall within jurisdiction. The conduct that took place on the second occasion had occurred after his employment application was refused. Accordingly he was not an applicant for employment at that stage, so s 8(1)(b) did not protect him. In the alternative, the Tribunal held, in any event, that the comments did not contravene the legislation, as the officer did not treat the appellant less favourably than a person of non-Lebanese/Muslim background. In its view, the officer ‘was merely attempting to understand and to explain why [the appellant] was having such difficulty accepting the decision not to employ him’ (reasons, [81]).

24 Finally the Tribunal dealt with the complaint of victimisation founded in two different sets of circumstances.

25 The first referred to the events surrounding the decision not to employ him. The appellant referred to an email he had sent to various persons, including relevant officers of the Department, on 1 February 2007 at 8.35 pm, protesting about his treatment. In that email he asserted that he had been the subject of discrimination. He also referred to an email to him from a Mr Murn of the Department dated 17 January 2007 and a conversation he said he had earlier in the day of 1 February 2007 with Mr Fahey, and a letter of 14 February 2007 to one of the senior officers, Mr Johnson.

26 The Tribunal noted that under s 50 of the ADA (making victimisation unlawful) it is necessary to establish that an operative reason for the decision not to offer him employment was the making of an allegation of unlawful discrimination. A key aspect of the appellant’s case was that a positive recommendation to employ him was proceeding until he sent the email at 8.35 pm on 1 February, and that the Department then changed its mind. The Tribunal was satisfied after reviewing the Departmental history and hearing from various Departmental witnesses, Mr Fahey and the appellant, that there was no positive recommendation moving forward at that time, and that by that time the Minister had already decided to accept the recommendation that he not be employed. The complaint of victimisation was found not substantiated.

27 The second referred to an email to the Department and the Minister dated 11 December 2006 in which he complained that he had been discriminated against by Mr T. He said that he then suffered a ‘detriment’ within the meaning of s 50, ADA, in that the reviewer, Mr Fahey, contacted the teaching supervisor for comments on the appellant. The Tribunal was not satisfied that Mr Fahey made contact with the teaching supervisor because of any complaint of discrimination. The Tribunal was satisfied that the contact was merely for the purpose of assessing the appellant’s suitability for employment. The Tribunal was also satisfied that the detriment of being refused employment was not connected with the complaint of discrimination contained in that email. Mr Fahey had referred to it in his report recommending against his employment, but only because it provided evidence of the appellant.

The Appeal

28 The appellant has exercised his right to appeal to the Appeal Panel against an order or other decision made by the Tribunal pursuant to the ADA (other than a decision under s 96): ADA, s 115. The appeal is subject to the provisions of Part 1 of Ch 7 of the Administrative Decisions Tribunal Act 1997 (ADT Act), s 112(1)(a) and s 113. An appeal may be made on a question of law, and, with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision: ADT Act, s 113(2). The appeal is made on questions of law, and there is an application for leave to extend to the merits.

29 In his notice of appeal he makes five objections to the decision. The grounds appear in brief in the notice of appeal lodged 24 December 2008. They are the subject of written submissions (dated 23 December 2008) attached to the notice of appeal and a further set of submissions filed as part of the appeal timetable (dated 24 April 2009).

30 Three of the grounds claim that the Tribunal did not afford the appellant procedural fairness in relation to aspects of his case. We will deal with the grounds relating to procedural fairness first (Grounds 2, 4 and 5). Finally we will deal with some other matters raised by the appellant’s submissions.

Ground 2: Procedural Fairness as it relates to Ms W’s Evidence

31 The main limb to the appellant’s submissions in connection with this Ground of Appeal relates to non-admission of a CD-ROM into evidence. The CD-ROM, according to the appellant in his submissions to the Appeal Panel, contained his secret recording of telephone conversations with Departmental officers in the period 8 to 12 February 2006, i.e. with the employment screening officer and a Mr Musgrave.

32 The Tribunal deals with procedural aspects of the hearing at paras [4] to [7] of its reasons. It refers there to attempts by the appellant to have the Tribunal allow into evidence a CD-ROM.

33 The hearing of evidence had concluded on 18 April 2008. Directions were given for the making of closing submissions in writing. Submissions were made by the appellant and then the Department in accordance with the timetable. Then the appellant filed further submissions on or about 30 June 2008 to which he attached a CD-ROM which he said was the CD-ROM containing a record of the conversations.

34 The Tribunal’s reasons at [4] to [7], where it explains why it did not take this alleged evidence into account may be read as suggesting that the CD-ROM only became known to exist after the hearing of evidence had concluded. We have been assisted in clarifying the history of this issue by the submissions of the Department to the Appeal Panel, and scrutiny of the transcripts of the Tribunal’s hearing, especially of the hearing held 17 April 2008.

35 The position is that the appellant informed the Department during a case conference prior to the hearing that he had secretly recorded some conversations with officers of the Department without their consent. The Department states that when the appellant first referred to the possible existence of such evidence, it objected on the basis that it was unlawfully obtained in contravention of the Listening Devices Act 1984, then in force. The Department states that he claimed that his conduct was not unlawful, by reference to one of the exceptions other than consent allowed by the Act – the protection of ‘lawful interests’ exception (s 5(3)(b)(i)).

36 Evidence of secret recordings of conversations, if given, may have incriminated the appellant, in the commission of offences under the Listening Devices Act 1984. The Act prohibited the use of a listening device to record a private conversation to which the person making the record is a party. The conversations in issue, on their face, satisfied that Act’s definition of a private conversation. The main exception is consent by the other party. The penalties for the offence are set out in s 11, a maximum of 40 penalty units if tried summarily; up to five years’ imprisonment and 100 penalty units if tried on indictment. The Evidence Act 1995, s 128, provides a facility for the giving of evidence in circumstances where the giving of the evidence may incriminate the witness. The Tribunal may issue a certificate under s 128 confining the use of the evidence to the instant proceedings. The appellant applied for a s 128 certificate.

37 Before the Tribunal, the appellant referred to his possession of evidence of the conversations on the first day of hearing (7 January 2008) and again on the second day of hearing (17 April 2008). While it is the duty of the Tribunal to have regard to any relevant evidence, this is subject to the practicalities of orderly case management and fairness to both parties. In the case of unlawfully obtained evidence, a balancing exercise is required. Such evidence should not lightly be admitted. The Evidence Act rule is that it is not to be admitted ‘unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained’ (s 138).

38 The implications of proceeding to tender the evidence were explained by the presiding member, and the desirability of obtaining independent legal advice also explained. We agree with the Department’s submissions that on 17 April 2008 the appellant effectively abandoned the proposed tender of the CD-ROM (transcript, 17 April 2008 p 22: 27-34).

39 In effect, the appellant revived the application by his submissions of 30 June 2008. At paras [6] and [7] the Tribunal proceeded to give reasons for rejecting the revived application:

‘6. Mr Laalaa applied to the Tribunal for a certificate under s 128 of the Evidence Act 1995. That provision obliges the Tribunal, in certain circumstances, to give a witness a certificate preventing self-incriminating evidence from being used against the person in criminal proceedings. Despite the fact that the Tribunal is not bound by the rules of evidence, s 128 applies to evidence given in proceedings before the Tribunal: ADT Act , s 73A. Mr Laalaa provided the Tribunal with a written legal advice that he had obtained entitled “Overview of the law of recording conversations”. The Tribunal explained to Mr Laalaa that if he wanted to provide that document to the Tribunal he would be deemed to have waived any entitlement he may have had to claim legal professional privilege over the communication. Mr Laalaa elected to provide a copy of the advice to the Tribunal and the Department. When asked to identify the evidence he intended to adduce, Mr Laalaa referred the Tribunal to page 12 of his submission entitled, “My comments on DET statements”. It appears from that page that Mr Laalaa may have recorded a conversation or conversations between himself and DET staff, although he does not say specifically which conversations he recorded or who was a party to those conversations. The passages at page 12 suggest that Mr Laalaa recorded a conversation or conversations with Ms Willmott and submitted that Ms Willmott had consented, by implication, to their conversation being recorded.

7 The Tribunal explained to Mr Laalaa that his application for a certificate under s 128 of the Evidence Act was premature because he had neither attempted to tender any evidence, nor had he objected to giving particular evidence, as envisaged by s 128. We explained that, depending on the circumstances in which any recording of a conversation had been obtained, there may have been a breach of the Listening Devices Act 1984. Without more detailed information, it was not possible for the Tribunal to determine that issue. Mr Laalaa refused to elaborate on the circumstances in which any conversations were recorded and refused to adduce any evidence of a recorded conversation. Furthermore, he did not object to giving any particular evidence on the ground that the evidence may tend to incriminate him. In those circumstances, the Tribunal did not give Mr Laalaa a certificate under s 128 of the Evidence Act 1995, nor did we accept the CDRom into evidence when Mr Laalaa attempted to file it after the hearing.’

40 This is not an instance of ‘fresh’ evidence in the usual understanding of the term, i.e. evidence that was not known to exist at the time of the trial, or evidence which was thought to exist but which was unable to be found at that time but has now come to light. We are satisfied that the appellant was furnished with ample opportunity to tender the evidence, but declined to do so. Moreover, we agree with the Tribunal’s reasons for not allowing the revived application. Had the case been reopened at this point, the result would have been a reopening of part of the case against the Department with all the expense and delay that would have produced, as well as stress for the officers affected. This is not a course lightly to be facilitated. Moreover, it is likely that attention would turn to the authenticity of the recording, the circumstances of its making, whether it had been doctored in any way, and other questions of that kind. The High Court has recently underscored the importance of bringing finality to proceedings, and the value of orderly case management, in that instance in the context of attempts to have allowed late amendments to pleadings (and thereby change the scope of the case to be met): Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (5 August 2009).

41 Moreover, the Tribunal had before it oral evidence from the appellant and the employment screening officer as to what passed between them. There is nothing in the material before the Tribunal that any great importance attached to communications with Mr Musgrave.

42 In our view, there was no error of law in the way the Tribunal approached this matter.

43 The appellant also asserts that the Tribunal did not refer to, or deal with, all of the statements that the employment screening officer made that offended him in relation to his culture. In the submissions he refers specifically to two occasions when statements were said to have been made, the meeting on 1 February 2007 and the phone conversation of 8 February 2007. In our view the Tribunal referred adequately to the appellant’s case as to the statements made by the employment screening officer on these occasions. It made a finding in support of the appellant’s case as to the words used on the second occasion. It did not, however, consider that the statements amounted to racial discrimination within the meaning of the ADA. In any event, there was no significant contest on appeal with the finding that by this point the appellant’s circumstances were beyond the reach of s 8 of the ADA as he was not an applicant for employment.

Ground 4: Opportunity to Respond to Relevant Information

44 The appellant objected to the way in its reasons the Tribunal selectively referred to passages from his emails. In his opinion, in fairness the full text should have been set out. It is not a concomitant of the duty to give adequate reasons, that a Tribunal set out in detail the evidence it has before it. A trier of fact is not obliged to address, and reconcile, every contradiction or inconsistency in the evidence. The law does ‘not require lengthy or elaborate reasons’ but it is ‘necessary that the essential ground or grounds upon which the decision rests should be articulated’: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 per McHugh JA at 280. See further, Mifsud v Campbell (1991) 21 NSWLR 725 and Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430; State RailAuthority of New South Wales v Earthline Constructions (1999) 160 ALR 588 (High Court). See also Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 (15 May 2009) per McColl JA at [58] – [66] (Ipp JA, Bryson AJA agreeing).

Ground 5: Procedural Fairness as it Relates to the Complaint of Victimisation

45 The appellant’s submissions under this heading (see Parts II and III of the submissions attached to the notice of appeal) reiterate his view that the reason for his non-employment was the email of 1 February 2007 at 8.35 pm and its reference to his view that he was the subject of discrimination and to the ADA. He also refers to statements said to have been made by the teaching supervisor and the employment screening officer. In our view, the Tribunal understood the appellant’s case in these regards, but was not satisfied that it was made out. It explained its reasons adequately, and afforded him an ample hearing. There is no error of law.

46 The submissions in the notice of appeal, we note, contain again intemperate language of the same kind that the Tribunal noted in the emails and to which Mr Fahey made reference in his reports.

Ground 1: Whether PEAT constitutes a breach of the ADA

47 The appellant reiterates in his notice of appeal submissions that were made to the Tribunal below as to whether the PEAT requirement contravenes the ADA. He contrasts the terms of PEAT with the terms of the document issued by the Commonwealth Government, National Office of Overseas Skills Recognition, Department of Education, Science and Training. That document provides information as to what is required of overseas graduates seeking to teach in Australia. It refers in general terms to the standards that are required to be met. The appellant’s submission is his completion of one year’s pre-service teacher education (i.e. the Graduate Diploma course) was enough, on its own, to meet the English proficiency standard, as indicated in that document. As mentioned in the background recital of the circumstances of this case, the appellant was eventually exempted from the PEAT requirement.

48 The appellant’s point, as we understand it, is that the Department should not have insisted during 2006 on compliance with the PEAT requirement, when completion of the Graduate Diploma itself would have been sufficient (applying the Commonwealth standard).

49 The Department’s reply on this point is simply that the Commonwealth material purports to be no more than a ‘guide’ to Australian standards (see page 4 of the document), and, in any event, the standards required by the NSW educational authorities are for the NSW authorities to determine.

50 In our view, the Tribunal dealt satisfactorily with this question. PEAT is a requirement applying to prospective teachers with academic qualifications that were obtained substantially or wholly in a non-English speaking environment. We see nothing problematic in an education authority wishing to be satisfied that a prospective teacher is capable of communicating in the language of the educational system at the level of proficiency necessitated by the kind of teaching envisaged. The PEAT standard was directed to that end, in the view of the Tribunal. It is not relevant that it differs in some respects from a Commonwealth statement on the matter.

51 As the Department’s submissions note, the Tribunal considered the appellant’s view that it was unreasonable, and discriminatory, to subject him to the PEAT standard when he was capable of meeting the standards to which the Commonwealth statement referred (including the scoring test, IELTS (International English Language Testing System)). In our view, it was reasonably open to it on the evidence to conclude that the PEAT requirement was not unreasonable.

Ground 3: Evidence for Findings of Fact in relation to Conflicts in Evidence

52 The appellant objects to the Tribunal’s adverse conclusion as to his credit, and the positive conclusions as to Mr T’s evidence. He makes a number of specific objections to the conclusions of the Tribunal.

53 The findings as to the appellant’s credit were not ‘glaringly improbable’ (see Devries v Australian National Railways Commission (1993) 177 CLR 472; see also Agbaba v Witter (1977) 51 ALJR 503 at 508 Jacobs J at 479). No error of law arises.

54 Nor is this a case where the trier of fact, the Tribunal, has ignored evidence which is critical to an issue in the case: see Mifsud v Campbell, cited above; Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473 at 513 (Court of Appeal); or to make an adverse finding without addressing significant uncontroverted evidence to the contrary: State RailAuthority of New South Wales v Earthline Constructions (1999) 73 ALJR 306.

55 As noted in Pollard, cited above, it is essential for the judge to expose the reasoning by which a point critical to the contest between the parties is resolved, although a judge is not obliged to spell out every detail of the process of reasoning. The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. In our view, the Tribunal adequately discharged its obligation.

Other Matters

56 To the extent that his complaint might fall outside the scope of s 8, the appellant submitted that it should be allowed to proceed by reference to other provisions of the ADA; and the complaint amended accordingly (as permitted by ADA, s 103). He referred to s 17(2) and s 19. Section 17(2) provides:

‘(2) It is unlawful for an educational authority to discriminate against a student on the ground of race:

(a) by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority, or

(b) by expelling the student or subjecting the student to any other detriment.’

57 Section 19 provides:

‘ 19 Provision of goods and services

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

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

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

58 In our view, s 17(2) is directed to an educational authority-student relationship. While the Department may be an educational authority, in that it administers schools (see definition of ‘educational authority’, s 4), it was not, in providing the facility for the practicum, dealing with one of its students. The relevant authority, if any, for this purpose during the 2006 school year was the Australian Catholic University where the appellant was enrolled. There is nothing in his complaints implicating ACU in any allegedly problematic conduct. Nor is it apparent how s 19 is engaged by the circumstances. If the Department was engaged in the provision of ‘services’ to the appellant in the pre-July period and the period after the decision to withdraw the offer, it is not apparent what ‘services’ might be said to have been refused, or what terms of the provision of the services are said to have been affected by considerations of race.

59 At [61] of the reasons the Tribunal gave its finding on the conduct of the employment screening officer. The Tribunal concluded:

‘We are satisfied that she did make a comment to the effect that Mr Laalaa’s [sic] may have difficulty accepting a decision made by a woman because in his culture it is not usual for women to be in authority and for their decisions to be accepted.’

60 The appellant submits that this statement is enough to disqualify the presiding member from having sat and determined the matter. The statement raises no tenable objection on the ground of bias, either actual or perceived. It is merely a conclusion as to what the Tribunal has found a witness to have said. It is a central task in the determination of cases. There is nothing to suggest that the presiding member adopted this statement as her own.

Conclusion

61 There are no errors of law identified.

Application for Leave to Extend to Merits

62 The appellant was an overseas qualified graduate from a non-English speaking country, whose prior undergraduate tertiary qualification was obtained in a non-English speaking environment. Because of his further achievement, in obtaining the Master’s degree at an Australian University and a direct assessment of his proficiency, he was exempted from the PEAT requirement. As to that matter, assuming jurisdiction existed, the Tribunal was satisfied that the State Government was applying a reasonable requirement in a non-racial way.

63 His conduct around this issue led the Department to reconsider its assessment that he was suitable to be employed that had been made in September 2006. On 1 February 2007 the assessment was reversed. The assessment was made on fitness grounds closely related to issues of temperament. The ADA was not infringed, nor was it infringed in the way in which the appellant was treated by particular officers.

64 In our view, the Tribunal’s conclusions were reasonably open on the evidence, and properly applied the law. In these circumstances, it would be undesirable to reopen the case by granting leave to extend to the merits. The application is refused.

Publicity

65 At the close of the appeal hearing, the appellant made an application for suppression of these reasons for decision, at least by having his name anonymised in some way. The Tribunal had previously refused a formal application under s 75 of the ADT Act to suppress his name from publication: see Tribunal reasons, [3]. However, the Tribunal did make an administrative decision in response to representations from the appellant soon after publishing its decision to take the reasons for decision down from the public, internet site.

66 Publication to the Tribunal’s public site on the internet is an administrative decision for the Tribunal. The normal policy is to publish all decisions to the internet, unless a comprehensive suppression order has been made. Names of the applicant party and other persons (for example, children) are anonymised in certain classes of proceedings in the Tribunal, for example, proceedings in the Community Services Division to which suppression provisions apply, and cases relating to personal records and privacy arising under the Privacy and Freedom of Information legislation.

67 The Appeal Panel gave directions to the parties to make submissions in relation to the appellant’s application, and directed the Registrar to fix a date in September for a short hearing. The Appeal Panel vacated the directions and the fixture in light of a letter dated 27 August 2009 from the appellant to the Registrar, which was further to an email dated 6 August 2009. It said materially:

‘I am writing in response to your letter dated 21 August 09 regarding a hearing to be held on 16 October 2009 at 10.00am.

…

2. I have mentioned in my previous email dated 6 August 2009 that I do not have any objection for the decision to be published on the internet and for my name not to be anonymised and that any discussion regarding this matter is a waste of time on purpose or unintentionally by the Tribunal.

The respondent (The NSW Education Department) replied in their submission dated 17 August 09 that they do not object on the publication of the decision on the Internet and they do not want to file any submission regarding this application.

The Appellant and the respondent clearly stated that they do not want to proceed with the matter that the decision not to be published on the Internet and the anonymisation of the appellant. Hence, there is no necessity for a hearing to be conducted on 16 October 2009 at 10.00am as this hearing was assigned by the President just to discuss this issue. …’.

68 Accordingly the directions have been vacated.

69 In accordance with normal practice these reasons will be published to the public, internet site. The decision under appeal will be restored to the public, internet site.

Costs

70 At hearing the Department foreshadowed an application for costs. The award of costs is discretionary, and there is no rule or practice in the Tribunal that costs follow the event. Section 110 of the ADA provides that the Tribunal may award costs under s 88 of the ADT Act. Section 88 provides that each party is to bear the party’s own costs of proceedings, except where the Tribunal is satisfied that it is fair to order one party to pay the other party’s costs. Section 88(1A) sets out circumstances that may be regarded as relevant to what may be fair.

71 The following directions are made in relation to the Department’s application:

(a) Department to file and serve any application for costs within 21 days of the date of publication of these reasons, with submissions in support. Submissions to attach a precise statement as to the amount of costs sought, and the components.

(b) Appellant to file and serve submissions in reply within a further 21 days.

(c) The Tribunal will proceed to determine the application for costs by considering the submissions without holding a further oral hearing, as permitted by section 76 of the Administrative Decisions Tribunal Act 1997, unless a party expresses an objection to this course, in which case a hearing to consider the objection will be held.