Parkes v The University of Newcastle
[2012] NSWADT 155
•06 August 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Parkes v The University of Newcastle [2012] NSWADT 155 Hearing dates: 31 July 2012 Decision date: 06 August 2012 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: Leave for Mr Parkes' complaint of race discrimination to proceed is refused.
Catchwords: LEAVE - Jamaican student complained about against University about a comment and failing exam - race discrimination alleged - complaint declined lacking in substance- leave required for complaints to proceed - leave refused Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143
Dawkins v Department of Environment [1993] ICR 517
Dutt v Central Coast Area Health Service [2002] NSWADT 133Category: Interlocutory applications Parties: Jesos Adrian Parkes (Applicant)
The University of Newcastle (Respondent)Representation: J Parkes (Applicant - in person)
Hicksons Lawyers (Respondent)
File Number(s): 121025
REasons for decision
Introduction
A complaint of discrimination that has been declined by the President of the Anti-Discrimination Board cannot be heard in the Tribunal unless permission is given: Anti-Discrimination Act 1977, s 96. The test is whether it is fair and just for the complaint to go ahead: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143. Mr Parkes, who is a student at the University of Newcastle, complained of race discrimination in relation to two matters: a comment his lecturer made to him and the fact that he failed a subject. I have decided it is not fair or just for the complaint to proceed because there is nothing to connect the alleged conduct with Mr Parkes' race.
Background
Mr Parkes says he is a Rastafarian from Jamaica. He is studying for an Arts degree at the University of Newcastle. He complained that his lecturer said to him in class, "Jesos! Don't' discriminate against me." He says that he did not say anything to prompt that remark.
Mr Parkes also complains that he completed the subject "Closing the Gap" (ABOR 3450) but failed. He provided the last page of two assignments which contained comments from the lecturer that he had made a "good effort". There were also negative comments including that his discussion requires a stronger analysis, closer link to the question and complete references. There was no other evidence of the assessments or examinations he had completed or the marks he had achieved.
The subject was taught by the same teacher who he says made the remark about discrimination. Mr Parkes complained about his mark. Following consideration by the University, the result was changed to "withdrawn". Mr Parkes says that he completed the subject and he had not withdrawn.
Merits of the complaint
For Mr Parkes to prove that the University has discriminated against him 'directly' on the ground of race, he would have to prove that:
(1) he is a member of a particular race: s 4
(2) the University subjected him to a detriment: s 17(2)
(3) the treatment afforded to Mr Parkes was less favourable than the treatment that was or would have been afforded to a person not of his race (differential treatment): s 7(1)(a) and
(4) at least one of the reasons for the treatment was his race (causation) s 7(1)(a).
Race
Courts have held that Rastafarians do not have a sufficient shared history to be regarded as a racial group: Dawkins v Department of Environment [1993] ICR 517. But Mr Parkes also says that he is Jamaican. That is a race.
Detriment
If the Tribunal were to hear this case, it is likely to find that the University, through its employees, has subjected Mr Parkes to a detriment by failing him in one subject: AD Act, s 17(2)(b). Whether or not the alleged remark by the lecturer is sufficiently serious to constitute a detriment is debatable, but for the purpose of these proceedings, I accept that it is.
Differential treatment
The first component of the test for direct discrimination is the 'differential treatment' test. The treatment afforded to Mr Parkes must be compared with the treatment that would have been afforded to a person of a different race in the same or similar circumstances. No actual comparator was suggested. In the absence of an actual person the Tribunal would have to apply the test in relation to a hypothetical person in a comparable situation. It is difficult to answer this question without asking whether race was a reason for the treatment: Dutt v Central Coast Area Health Service [2002] NSWADT 133.
Causation
At least one of the reasons for being treated in the way he was treated must be Mr Parkes' race: s 4A. According to Mr Parkes he had a feeling when the lecturer made the comment about not discriminating against her that he might fail the subject. He said he was awarded a distinction for two other subjects about Indigenous Australians that were not taught by the same lecturer. He said that the last thing he expected was to fail and he cannot attribute the fail grade to anything other than race discrimination.
If this complaint went ahead to a hearing in the Tribunal, the question would not be whether Mr Parkes was treated unfairly or whether he deserved a higher mark. The central question would be whether at least one of the reasons for making the comment or awarding the fail grade was his race. There is nothing specific to connect the alleged treatment with his race. It can only be inferred that race was a reason for the treatment if other innocent explanations can be rejected.
In relation to the alleged comment, it is difficult to make a connection between that comment and Mr Parkes' race. Even if the lecturer said, "Don't discriminate against me", I cannot see how that remark itself constitutes discrimination.
There is some evidence about hand-written comments the lecturer made in relation to two assignments but no other evidence as to the standard of his work or how the fail grade was reached. Even if Mr Parkes achieved high grades in other subjects, that does not give rise to an inference that one of the reasons he failed was because he is from Jamaica. To conclude that race was a basis for the treatment is mere conjecture.
It is highly unlikely that Mr Parkes would be able to substantiate the complaint of race discrimination. Permission for the complaint to proceed is refused.
Order
Leave is refused for the complaint to proceed.
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Decision last updated: 06 August 2012
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