Riley v State of NSW (Department of Education)

[2019] NSWCATAD 223

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Riley v State of New South Wales (Department of Education) [2019] NSWCATAD 223
Hearing dates:	18 – 20 and 22 March 2019; 15 – 16 May 2019
Date of orders:	29 October 2019
Decision date:	29 October 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr J Lucy, Senior Member Prof J Goodman-Delahunty, General Member
Decision:	(1)   The applicants’ application is dismissed. (2)   Any party may make an application for costs by providing any evidence and submissions in support of such application to the Tribunal and the other parties by 19 November 2019. (3)   Any party against whom, or against which, a costs application is made, is to provide any submissions and evidence on which the party intends to rely in response to the costs application, to the Tribunal and the other parties by 3 December 2019. (4)   The applicant for a costs order is to provide any reply to the Tribunal and the other parties by 10 December 2019. (5)   Any party applying for costs, or responding to an application for costs, is to address in the party’s submissions whether the costs application should be dealt with on the papers.
Catchwords:	ANTI-DISCRIMINATION – racial discrimination – discrimination against contract workers – whether contract worker denied access to benefits or subjected to detriment – whether termination of contract with contract worker’s employer constitutes not allowing the contract worker to work – whether differential treatment established – racial vilification – whether laughter and comments at school staff meeting a “public act” – whether laughter and comments capable of inciting serious contempt or severe ridicule – victimisation – whether informal complaints of racial discrimination made – whether second applicant did anything under or by reference to Anti-Discrimination Act – whether respondents subjected second applicant to a detriment
Legislation Cited:	Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Disability Discrimination Act 1992 (Cth) Equal Opportunity Act 1984 (WA) Inclosed Lands Protection Act 1901 (NSW) Interpretation Act 1987 (NSW)
Cases Cited:	Anderson v Thompson [2001] NSWADT 11 Barry v Futter [2011] NSWADT 205 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Brooks v Secretary, Department of Family and Community Services [2017] NSWCATAD 300 Chand v RailCorp [2011] NSWCA 79 Chi v Technical and Further Education Commission [2012] NSWCA 421 Ekermawi v Jones (No 3) [2014] NSWCATAD 58 Fields v Commissioner of Police, NSW Police Force [2017] NSWCATAD 311 Hautlieu Pty Ltd (t/as Russell Pathology) v McIntosh [2000] WASCA 146 Jones v Trad [2013] NSWCA 389; (2013) 86 NSWLR 241 Kazak v John Fairfax Publications Limited [2000] NSWADT 77 Lipman v Commissioner of Police [2015] NSWCATAD 250 Marshall v Prescott [2015] NSWCA 110 Mitchell v Clayton Utz [2009] NSWADT 266 Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 Rae v Commissioner of Police, New South Wales Police Force (No 2) [2010] NSWADT 36 Sunol v Collier (No 2) [2012] NSWCA 44; (2012) 260 FLR 414 TB v New South Wales [2015] NSWSC 575 Tropoulos v Journey Lawyers Pty Ltd [2019] FCA 436; (2019) 287 IR 363 Whiteoak v State of New South Wales [2014] NSWCATAD 45 Z v University of A (No 7) [2004] NSWADT 81
Texts Cited:	Macquarie Dictionary
Category:	Principal judgment
Parties:	Nathan Riley (First Applicant) Robert Riley (Second Applicant) James Riley (Third Applicant) State of New South Wales (Department of Education) (First Respondent) Debbie Head (Second Respondent)
Representation:	Counsel: B Byrnes (Applicants) M Baroni (Respondents)   Solicitors: National Justice Project (Applicants) McCabe Curwood (Respondents)
File Number(s):	2018/00004620
Publication restriction:	Nil

REASONS FOR DECISION

1. The applicants, three Aboriginal men, complained that staff of a regional school racially discriminated against one of them and racially vilified all of them. It also said that, after one of them complained about this, they were victimised by staff of the school.

2. Two of the men, who were brothers, were in a partnership which provided a program of support services to indigenous students at the school. The other, the son of one of the partners, was employed by the partnership and acted as a mentor to some of the school’s indigenous students as part of that program.

3. Two incidents were central to their complaints. The first occurred when the young man, the mentor, spoke at a school staff meeting about an upcoming excursion in which he and others were taking indigenous students to a police station for a careers day. His presentation was interrupted by a senior staff member laughing and he felt humiliated by this. He understood the laughter to have a racial undertone and to be suggesting that Aboriginal children are more likely to be locked up by police than to have a career as a police officer. When he told his father what had occurred, his father also felt humiliated, distressed and ridiculed.

4. The second incident occurred when the young man’s father spoke at a muster meeting a few days later. He said that people used to laugh at him when he was a young man and he told them his dreams, but that he had fulfilled his dreams. He also said, “we can all be part of the solution not the problem.”

5. The acting principal interpreted these words to mean that she and other teachers could not effectively deal with indigenous students and found the comments to be highly offensive.

6. After this, the relationship between the Aboriginal men and the acting principal of the school campus deteriorated. The acting principal decided not to proceed with several projects proposed by the partnership. She also spoke sharply to the mentor on a number of occasions. About two months after these incidents, the acting principal informed one of the partners that there was only enough funding for their program to continue until the end of the term.

7. We found that the school did not racially vilify the Aboriginal men, when a senior staff member laughed at the staff meeting at which the mentor spoke and when the acting principal made a comment at another staff meeting. This is because neither act was a “public act” and neither was capable of inciting serious contempt for, or severe ridicule of, Aboriginal people.

8. We have also found that the school did not racially discriminate against the mentor in the ways claimed, which include the acting principal making unfavourable reports about him and excessively reprimanding him. This is primarily because the applicants have not satisfied us that the school treated the mentor less favourably than it would have treated a person of a different race in similar circumstances.

9. Finally, we are not persuaded that the school victimised any of the applicants. The applicants claimed that one of the partners made a number of “informal complaints” (including the speech at the staff meeting) and that the acting principal then subjected them all to various detriments. We have found that the “informal complaints” do not provide a proper basis for a victimisation claim, because they were not, in substance, allegations that anyone had contravened the Anti-Discrimination Act 1977 (“AD Act”) and the complaints or statements were not made by reference to that Act.

10. For all of these reasons, we have dismissed the applicants’ application.

Background

11. Two of the applicants, Robert and James Riley, are brothers. They were partners in a business called Indigenous Concepts and Networking (“ICaN”). In 2015 and 2016, ICaN provided cultural awareness programs to indigenous youths ranging from 12 to 18 years of age.

12. The third applicant, Nathan Riley, who is Robert Riley’s son, was employed by ICaN as a mentor to indigenous children.

13. Robert, James and Nathan Riley are all of Aboriginal race.

14. James and Robert Riley received a Commonwealth grant for a project called the “ICaN Youth Participation Program”. The grant was provided under the Indigenous Advancement – Jobs, Land and Economy program. The funding was for a period of 18 months commencing 1 July 2015 and ending on 31 December 2016. Under the terms of the grant, James and Robert Riley agreed to provide workshops to indigenous youths between 12 and 18 years; to engage indigenous students from local high schools; and to provide an Aboriginal mentor for participants in the project.

15. Dubbo College is a public school which has three campuses: South Campus, Senior Campus and Delroy Campus (“Delroy”). Dubbo College has an executive principal and each campus has a principal.

16. In the first half of 2015, James Riley contacted Ms Linda MacLeod, the relieving principal of Delroy, to propose that ICaN provide a support program for Aboriginal students at the campus. Ms MacLeod met with James Riley and Nathan Riley to discuss the proposal.

17. When ICaN’s proposal was made, another equity program run by the Clontarf Foundation (“Clontarf”) was in place at Delroy. Clontarf focused upon improving the well-being, diet and employment opportunities of male indigenous students and aimed to increase attendance rates for indigenous boys.

18. Delroy also employed tutors for indigenous students under an initiative known as Norta Norta.

19. At Ms MacLeod’s request, ICaN provided her with a written proposal for the program so that she could provide it to the school’s equity team. The proposal described the program as an “Aboriginal Youth Participation Program”. It stated that:

“During the 8 week program the students will be involved in a variety of activities based on increasing their knowledge and skills around cultural heritage, personal development, linking with services in education and employment, exposure to services and information around Aboriginality and cross cultural awareness.”

20. The proposal also stated that ICaN’s operations would be supported by a young, successful Aboriginal mentor.

21. James Riley told Ms MacLeod the ICaN program would cost about $13,000 per term. She informed him she would put the proposal to the equity team.

22. Delroy’s equity team comprises teachers, Aboriginal Education Officers and representatives from various external providers of equity programs that are run at the school. Mr Shane Groen was a teacher at Delroy and the head of the equity team at all relevant times. The equity team agreed, in a meeting, to trial the ICaN program for a period of 8 or 10 weeks. ICaN began running the program, on a trial basis, in term 3 of 2015.

23. Ms MacLeod asked the School Administrative Manager to arrange for ICaN to be paid from Delroy’s Resource Allocation Model (“RAM”) budget.

24. A meeting of the equity team was held at the end of term 3. Nathan Riley’s evidence is that ICaN’s program was evaluated and it was decided at that meeting to continue with the program. Robert Riley’s evidence is that Ms MacLeod told him, at the end of term 3, that she had received approval from the equity team for the program to continue. Mr Groen wrote ICaN a letter on 18 September 2015, expressing the school’s satisfaction with the ICaN program so far. The letter concluded, “We look forward to continue our already successful relationship with your program into the future.”

25. At the end of term 3, 2015, Ms MacLeod left Delroy to take up a position at another school. Ms MacLeod’s evidence is that she did not make any commitment to continue the ICaN program before leaving the school, but anticipated that the program would be evaluated early in term 4.

26. Ms Debbie Head became the relieving principal of Delroy at the beginning of term 4, 2015. The ICaN program continued in term 4 of 2015.

27. Some time in term 4, 2015, Ms Head reviewed Delroy’s budget. Within the RAM funding received by Delroy, there was a set amount to facilitate an initiative called Norta Norta. The Department of Education required schools to use Norta Norta funding only in accordance with specific guidelines issued by the Department. One of the purposes for which Norta Norta funding was permitted to be used was for the provision of tutors to indigenous students. Delroy employed a number of Norta Norta tutors.

28. Ms Head’s evidence is that she formed the view that ICaN was being funded through Delroy’s Norta Norta budget and not through its general RAM budget. She also gave evidence that she understood, through her conversations with the School Administrative Manager, that Nathan Riley was a tutor in the traditional sense (as opposed to a mentor) and consequently funded through the Norta Norta budget. Ms Head said that she understood in term 4, 2015 that ICaN’s services would come to an end, based on allocated budgets, half way through term 3 of 2016.

29. By the end of 2015, according to a report provided by ICaN, it had completed two eight-week blocks with students, the first with 13 participants and the second with 14. Each week, ICaN ran a workshop based around Aboriginal culture, heritage and identity and provided a mentor (Nathan Riley) to work with participants both at home and at school. The workshops were delivered over a number of locations including the ICaN Growing Futures Nursery.

30. ICaN continued to provide a support program for Aboriginal students at Delroy, and to be paid for doing so, in 2016. Robert Riley’s evidence is that, before school commenced in 2016, Mr Groen told him that ICaN’s program would continue for the whole of 2016. Mr Groen did not give any evidence as to whether he said this or not.

31. In about the middle of 2016, Ms Head expressed interest in ICaN providing cultural awareness training for staff at Delroy, and possibly at the other campuses. Some time later, Robert Riley provided a quote for this.

32. On Tuesday 21 June 2016, Nathan Riley attended the school muster meeting and announced that he would be taking a group of Aboriginal students to the Dubbo Police Station to attend the Orana Local Area Command Careers Day. A “muster meeting” was a meeting held at the start of each school day at Delroy, attended by staff. Contractors could also attend.

33. There is a dispute between the parties as to what happened next. The applicants contend that the Deputy Principal, Ms Kathryn Bermingham said, during Nathan’s presentation, “Make sure you bring them all back.” The applicants say that staff then laughed. The respondents deny that Ms Bermingham made that comment at the meeting and also deny that the staff laughed.

34. On Thursday 23 June 2016, Ms Bermingham said to Glen Braithwaite, a non-Aboriginal teacher who was attending the excursion to the Police station, “Make sure you bring them all back.” She said this after he spoke at the muster meeting on that day.

35. On 24 June 2016, Robert Riley attended the school muster meeting. He addressed the staff and said that he himself had been laughed at as an Aboriginal person when talking about his dreams and aspirations and that “you could be part of the problem or part of the solution.”

36. Shortly after this incident, probably that afternoon, Ms Head wrote a report to Stacey Exner, the executive principal, headed “The Muster Incident”. In that document, Ms Head made some comments about Nathan’s speech to the muster prior to the excursion and also about the muster meeting of 24 June 2016 at which Robert Riley spoke. She informed Ms Exner that staff had reported to her that they did not appreciate Robert Riley’s comments.

37. The school holidays started on 2 July 2016.

38. On about 17 July 2016, Ms Head prepared another report from Ms Exner, entitled “Report Subject: Nathan Riley, ICaN”. This detailed matters such as Nathan Riley’s employment “using Norta Norta funding”, the work he undertook, ICaN’s involvement, Nathan Riley’s activities taking students on excursions without teachers and some other matters. It expressed some concerns about Nathan Riley and ICaN.

39. On 22 July 2016 after term 3 resumed, the applicants claim that Robert Riley met with Ms Head and Mr Braithwaite and complained that the comments about the Police Station and the Staff muster were racially offensive.

40. The applicants also claim that Ms Head excessively reprimanded Nathan Riley on a number of occasions in term 3 and that she cancelled ICaN events and projects or decided not to proceed with proposed ICaN activities.

41. On 22 August 2016, Ms Head informed Robert Riley at a meeting at which Stacey Exner, the executive principal, was present, that Delroy would not fund the ICaN program beyond term 3 of 2016. At the end of the meeting, Ms Head said that she had arranged for quotes for staff cultural awareness training with ICaN and that would be something she would like to continue.

42. Later that day, Mr Robert Riley spoke to Ms Exner on the telephone and informed her that he intended to lodge a formal complaint with the Department of Education.

43. On 15 September 2016, Mr Robert Riley made a formal complaint to the Department of Education regarding alleged racial discrimination.

Proceedings before the Anti-Discrimination Board and the Tribunal

44. On 20 February 2017, Nathan Riley made a complaint to the President of the Anti-Discrimination Board (“President”) against the Department of Education, alleging discrimination on the ground of race. The period of the complaint was 22 June 2016 to 20 February 2017.

45. Nathan Riley complained that:

1. On Wednesday 22 June 2016 at staff muster, whilst he was talking about taking Aboriginal students on an excursion to the police station, Kathryn Bermingham, the Deputy Principal of Delroy, laughed at him in front of the entire Delroy Staff;

2. On Thursday 23 June 2016, after the excursion, he was told that the Principal, Debbie Head, had said in the morning muster meeting, after Glen Braithwaite announced to the meeting that he was going on the excursion, “Make sure they all come back”;

3. After Robert Riley spoke at the muster meeting on 24 June 2016, Ms Head’s attitude started to change. She cancelled a meeting with Nathan Riley, she criticised Nathan Riley for bringing a new staff member to the school, she criticised him for organising a barbecue, then she ended the ICaN program in Term 3 of 2016.

46. On 1 June 2017, Robert Riley emailed the Anti-Discrimination Board saying he would like to change Nathan Riley’s complaint from him as an employee to “myself being Indigenous Concepts and Networking.” The President treated his complaint as a separate complaint of race discrimination, victimisation and aiding and abetting. The period of the race discrimination and aiding and abetting complaints was 22 June 2016 to 1 June 2017 and the period of the victimisation complaint was 27 June 2016 to 1 June 2017.

47. On 21 December 2017, the President referred Nathan Riley’s complaint of racial discrimination (AD Act, ss 7, 8, 10 and 53) and ICaN’s complaints of racial discrimination (AD Act, ss 7, 8, 10 and 53), victimisation (AD Act, s 50) and aiding and abetting (AD Act, s 52) to the Tribunal under s 93C of the AD Act, having formed the opinion that the complaints could not be resolved by conciliation.

48. The first case conference was adjourned to allow Nathan and Robert Riley to obtain legal representation. At the second case conference, on 14 March 2018, the applicants were ordered to file points of claim and the respondents were ordered to file points of defence. By this time, the applicants and the respondents were represented by both solicitors and counsel.

49. On 25 September 2018, the applicants were directed to file any application to amend the complaint and any amended Points of Claim by 26 October 2018. The respondents were ordered to indicate whether or not they objected to the application to amend the complaint and any amended Points of Claim, and to file and serve any amended Points of Defence, by 16 November 2018.

50. The matter was first set down for hearing for four days in March 2019. Many statements and affidavits were filed by the applicants and by the respondents. Oral evidence was given at the hearing by each of the applicants and by staff and former staff of Delroy, including Ms Head, Ms Exner and Ms MacLeod and almost all witnesses were cross examined.

46. On the first day of hearing, 18 March 2019, we made an order, by consent, joining James Riley as an applicant.

47. On 20 March 2019, we granted the applicants leave to file the Amended Points of Claim handed up at the hearing on 19 March 2019.

48. On 22 March 2019, we ordered the applicants to file and serve, by 12 April 2019, an application to amend the complaint, setting out the conduct and/or legal characterisation of that conduct which the applicants say should be included in their complaint but which was not part of the complaint which was referred to the Tribunal. We also ordered the respondents to file and serve, by 3 May 2019, a reply indicating whether there is any objection to any part of the proposed amendments to the complaint and, if so, to which part and on what basis; and Amended Points of Defence.

49. We set the matter down for another two day hearing on 15 and 16 May 2019.

50. On 15 April 2019, the applicants sent a letter to the Tribunal, applying to amend their complaints. The key amendments were:

1. adding James Riley, in his capacity as a partner of ICaN, as an applicant (an amendment which had been foreshadowed at the beginning of the hearing);

2. amending Nathan Riley’s complaint to comprise alleged breaches of ss 7, 10, 20C (vilification), 50 (victimisation), 52 (aiding and abetting) and 53 of the AD Act;

3. amending the complaint so that Robert Riley and James Riley complain, in their own capacity and as partners of ICaN, about alleged breaches of ss 7, 8, 20C, 50, 52 and 53 of the AD Act;

4. incorporating into the complaints the further facts pleaded in the Further Amended Points of Claim filed on 15 April 2019.

56. On 16 May 2019, the Tribunal amended the complaint as requested (with a minor exception). It also amended the period of the complaint to commence on 21 June 2016 (because it was accepted that the muster meeting at which Nathan Riley spoke occurred on that date, and not on 22 June 2016, as originally alleged). On the same day, the Tribunal granted the applicants leave to file the Further Amended Points of Claim dated 16 May 2019.

57. We ordered the respondents to file and serve a Defence to the Further Amended Points of Claim by 23 May 2019. We made further orders requiring the parties to file and serve written submissions.

Applicants’ claims

58. The applicants make the following claims in their Further Amended Points of Claim filed in the hearing on 16 May 2019:

1. The State discriminated against Robert and James Riley in contravention of s 8(1)(b) of the AD Act (but this claim is no longer pressed);

2. The State discriminated against Nathan Riley in contravention of s 10(d) of the AD Act;

3. The State racially vilified the applicants in contravention of s 20C of the AD Act;

4. The State victimised all of the applicants in contravention of s 50 of the AD Act as a consequence of Robert Riley making informal and formal complaints;

5. The second respondent, Ms Head, the former Principal of Delroy College, aided and abetted, by virtue of her conduct, the State in contravening the AD Act and, in doing so, contravened s 52 of the AD Act.

59. The applicants each claim damages of $100,000 for each complaint of racial discrimination (in the case of Nathan Riley) and for each complaint of racial discrimination and victimisation (in the case of all applicants). The applicants also seek some non-monetary orders, including an order for an apology.

Racial vilification

60. The applicants claim that the State racially vilified each of them in contravention of s 20C of the AD Act. The alleged racial vilification relates to Ms Bermingham’s laughter at the muster meeting on 21 June 2016 during Nathan Riley’s presentation and comments made on 23 June 2016 by Ms Head about students coming back from the excursion.

61. Section 20C(1) of the AD Act provides as follows:

20C   Racial vilification unlawful

(1)  It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.

62. In order to establish that they have been racially vilified, the applicants need to establish:

1. The act or acts of vilification were public acts;

2. The acts were capable of inciting hatred towards, serious contempt for, or severe ridicule of, a person or group of persons;

3. Such incitement was on the ground of the race of the person or members of the group.

What are the alleged acts?

63. The applicants allege, in the Further Amended Points of Claim, that, during Nathan Riley’s presentation at the muster meeting on 21 June 2016, a “staff member made a comment which caused Deputy Principal Miss Bingham” (presumably they mean Ms Bermingham) “to laugh continuously throughout Nathan Riley’s presentation.”

64. On 23 June 2016, Glen Braithwaite spoke at the muster meeting about going on the excursion to the police station that day. The applicants allege, in the Further Amended Points of Claim, that, after Mr Braithwaite had spoken, Ms Head said words to the effect: “Do you think that’s a good idea? Make sure all the students come back.”

65. The applicants plead that when Glen Braithwaite, Nathan Riley and Robert Riley returned from the excursion that afternoon, Ms Head said words to the effect: “Oh Glen, I’m glad you made it back.”

66. They claim, in their Further Amended Points of Claim, that the “exchange” referred to above was a public act by Ms Bermingham and Ms Head which incited severe ridicule and severe contempt of Aboriginal persons on the ground of their race.

Did the act on 21 June 2016 occur as alleged?

67. Nathan Riley provided his recollection of what occurred in his affidavit of 17 December 2018, as follows:

“As I was speaking about taking the students to the police station, I was laughed at in front of the entire Delroy staff by Kathryn Bermingham, the Deputy Principal.

I had to stop talk to wait for her to finish laughing.”

68. Under cross examination, Mr Baroni, for the respondents, asked Nathan Riley about whether he heard any comment being made before he heard laughter. Mr Riley replied:

“I didn’t need to know what the comment said, it was obvious that it was right in my face. Even if there was no comment and the laughter, the laughter says enough. The laughter hurt me more than the comment because it was obvious what she was laughing at, and staff members even came up to me afterwards and were disappointed and they made reference to what had happened to me.”

69. The applicants did not provide the names of the staff members who spoke to Nathan Riley or any details of what they said. There was no evidence from any staff members of having spoken to Nathan Riley.

70. Later, Mr Baroni reminded Nathan Riley that he had been asked some questions about the lack of reference in his statement to Ms Bermingham’s alleged comment at the muster meeting. Following some objections to Mr Baroni’s questions, counsel for the applicants asked Nathan Riley why he made no reference to the making of a comment in his statement. His reply was: “Because I wasn’t exactly sure of what they said. I didn't, I wasn’t sure if you could quote people if you don't know what they said. But the comment is obviously what led to me being laughed at.”

71. In his statement of 18 December 2018, Robert Riley stated that Nathan Riley told him after the muster meeting that, when he gave the presentation, “Deputy Principal Miss Bermingham laughed loudly and continuously. I had to stand in front of my peers and colleagues and wait for her to finish laughing before I could continue.”

72. This part of Robert Riley’s statement was admitted into evidence, but not as evidence of the truth of what occurred.

73. Ms Kathryn Bermingham’s evidence in her statement filed on 18 February 2019 is that she did not laugh at Nathan Riley during his presentation. She also denies laughing “in front of the entire Delroy staff” as Nathan Riley claims.

74. Mr Glen Braithwaite, the Deputy Principal of Delroy at all relevant times, does not recall anyone laughing during or after Nathan Riley’s announcement at the muster meeting.

75. Ms Debbie Head, the relieving principal of Delroy, typed a document entitled “The muster incident” some time after the muster meeting of 23 June 2016, at which Robert Riley spoke. Her evidence was that she wrote it to send to the executive principal of Dubbo College, Stacey Exner. Her oral evidence was that she thinks she wrote it on 24 June 2016. The document contains the following account of the muster meeting (presumably that of 21 June 2016):

“At muster prior to the excursion Nathan spoke and said he was going to the courthouse to have a look around etc.

Kath B made a flippant comment saying ‘make sure you bring everyone back then’

Staff laughed at this comment

Debbie could see that Nathan felt upset by this comment by the look on his face.

Interestingly Doug Gordon had recently taken some students to the Court house and he had said that same comment receiving the same response by staff (laughing).”

76. Under cross examination, Ms Head first said that she did not accept that Ms Bermingham said, “Make sure you bring everyone back then” on 21 June 2016. She said that she had written the notes hurriedly and just “flicked it off” to Ms Exner to get it to her quickly. Ms Head said that “some of the stuff that’s at the top should have been put down the bottom” (of the page) and said that she thought “Nathan felt upset on the Friday” (not the Tuesday). However, Ms Head then agreed that she heard Ms Bermingham make the comment, “Make sure you bring everyone back then.”

77. When asked about the day on which Ms Bermingham made the comment, Ms Head said that she felt it was made on the Thursday, to the best of her recollection, because otherwise everything did not make sense in her head, but she could not be sure.

78. We consider that the evidence establishes, on balance, that Ms Bermingham laughed at the muster meeting on 21 June 2016 during Nathan Riley’s presentation. It is not surprising that she does not remember this years later. Nor is it surprising that Mr Braithwaite has forgotten this (or perhaps did not hear the laughter). Nathan Riley had a reason to remember the laughter, because he said (and we accept) that he felt humiliated and belittled by it.

79. Ms Head’s note, written several days later, does not state that Ms Bermingham laughed, but rather that Ms Bermingham made a comment at which other staff members laughed. Ms Head refers to herself in the third person in the note and records that she could see that Nathan Riley was upset by the comment.

80. Ms Head’s oral evidence on this point was confused. We do not consider that the note or Ms Head’s oral evidence is of assistance in determining whether the allegations in the Further Amended Points of Claim are established.

81. We note that it is not necessary to determine whether Ms Bermingham made the comment, “Make sure you bring everyone back then” on 21 June 2016, causing others to laugh. That is because the applicants allege in the Further Amended Points of Claim that a staff member made a comment which caused Ms Bermingham to laugh continuously throughout Nathan Riley’s presentation. It is a reasonable inference that the “staff member” referred to in the pleadings is a staff member other than Ms Bermingham. However, even if the words “staff member” could refer to Ms Bermingham (which we doubt), there is no allegation in the Further Amended Points of Claim about what was said.

82. The applicants were represented throughout these proceedings and both parties had both solicitors and counsel from an early stage. The applicants were given several opportunities to amend their pleadings. They filed the Further Amended Points of Claim on 16 May 2019. This was on the last day of the hearing, having had four hearing days in March 2019 and two in May 2019. The applicants had abundant opportunity to amend the part of the pleading concerning vilification.

83. The applicants are bound by their pleading. They did not submit otherwise or make any application for leave to depart from it. However, in their submissions on vilification, they contend that Ms Bermingham said “Make sure you bring everyone back then” at the muster meeting of 21 June 2016, that this was a public act, and that it was capable of inciting severe ridicule. This is despite the pleading that “a staff member” made an unspecified comment at that meeting at which Ms Bermingham laughed.

84. We (and a third Tribunal member) discussed an applicant’s failure to plead a case, as made in the applicant’s submissions, in Lipman v Commissioner of Police [2015] NSWCATAD 250 at [206] and following. That discussion is pertinent to these proceedings. We referred at [207] to Whiteoak v State of New South Wales [2014] NSWCATAD 45 at [37], where the Tribunal held, in circumstances where an applicant was legally represented, that the respondent was entitled to meet the case as pleaded. We also commented, at [209], that one of the advantages of pleadings is that they require a party to identify his or her case with precision. Without pleadings, it is difficult to know exactly what an applicant’s case is.

85. We made the following observations (at [211]), which are also applicable here:

“As a general proposition, where the Tribunal chooses to direct the parties to file pleadings, the Tribunal is required to determine the case according to the pleadings, unless it indicates to the parties that it proposes to decide the case on another basis and gives the parties an opportunity to make submissions about this course. Mason CJ and Gaudron J have commented in the context of civil litigation that pleadings ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and a case should only be decided on another basis if the parties choose some different basis for the determination of their respective rights and liabilities (Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279, Mason CJ and Gaudron J at 286–287).”

86. We do not consider that the parties have chosen a different basis for the determination of their rights and liabilities. Whilst the respondents have responded in their submissions to the allegation that Ms Bermingham said “Make sure you bring everyone back then,” they have also said that, properly understood, the evidence is:

“a. someone made a comment;

b. the Applicants' do not know:

i. what that comment was;

ii. who the comment was directed at;

iii. what it was about; and

c. Ms Bermingham laughed.”

87. The other relevance of the apparent departure from the allegation made in the Further Amended Points of Claim is that it may require an amendment to the complaint. The applicants were permitted to amend their complaint after the first four days of hearing. They applied to amend their complaint by letter dated 15 April 2019. One of the proposed amendments was to allow the applicants to plead a breach of s 20C (vilification) of the AD Act, a matter which was not included in their complaint to the President of the Anti-Discrimination Board. In their solicitors’ letter of 15 April 2019, it is stated: “The factual circumstances giving rise to the complaint of vilification under s 20C of the ADA were included in the complaint referred to the Tribunal, however it was not characterised as a contravention of s 20C of the ADA at that time.” The amendment was allowed, on the basis set out in the letter.

88. The Tribunal discussed with the parties the need to amend not only the Points of Claim, but also the complaint, at the hearing on 22 March 2019. The Tribunal’s presiding member said to the parties’ legal representatives that the Tribunal needs to define very clearly and to make an order as to the scope of the amended complaint before it. The Tribunal only has jurisdiction in respect of a complaint referred to it or a complaint as amended by it.

89. In the complaint to the President, it is alleged that Ms Bermingham laughed during the muster meeting and subsequently made a comment to Mr Glen Braithwaite that he needed to take care to ensure “all kids come back.” The applicants have not applied to amend their complaint to allege that Ms Bermingham made the comment in the muster meeting. The Tribunal has jurisdiction to make orders in relation to a complaint, as referred to it, and in relation to any complaint, as amended (AD Act, s 108). In the absence of an amendment, the Tribunal may not consider a new complaint (AD Act, ss 91C, 94A and 103; Brooks v Secretary, Department of Family and Community Services [2017] NSWCATAD 300 at [4]; see also Fields v Commissioner of Police, NSW Police Force [2017] NSWCATAD 311 at [7]).

90. We note that, in Chand v RailCorp [2011] NSWCA 79 at [81], Hodgson JA (Campbell JA and Sackville AJA agreeing) held that a decision of the Appeal Panel of the Administrative Decisions Tribunal not to permit an amendment to a complaint (pursuant to s 103 of the AD Act) was “an appropriate discretionary decision.” His Honour continued:

“The matter had been contested before the Tribunal on the basis of the Points of Claim and on further and better particulars supplied pursuant thereto; and no document seeking to amend the Points of Claim or particulars was submitted to the Appeal Panel. In the absence of such a document, it would have been a clear denial of procedural fairness to permit the appellant to rely on triggers or detriments outside the Points of Claim and the particulars.”

91. We consider that, in circumstances where both the Points of Claim and the complaint itself were amended on the last day of a six-day hearing, it would be a breach of procedural fairness to permit the applicants to rely on matters which are not pleaded in the Further Amended Points of Claim, particularly where they do not form part of the amended complaint. In any event, there has been no application to depart from the pleadings or for any further amendment of the complaint.

92. The applicants are bound by the pleadings and the complaint, as amended, and cannot change their case by alleging (in written submissions) that they were vilified by a comment of Ms Bermingham at the muster meeting of 21 June 2019.

93. We find that Ms Bermingham laughed during Nathan Riley’s presentation. The evidence does not establish that Ms Bermingham laughed continuously throughout Nathan Riley’s presentation. Nathan Riley’s own evidence indicates that he started speaking, Ms Bermingham laughed, he stopped to allow her to finish, then he finished his presentation.

94. Nathan Riley’s evidence was equivocal as to whether a comment was made, prompting the laughter. His remark in oral evidence, “Even if there was no comment,” indicated an implicit acceptance that a comment may not have been made (or that he did not hear a comment). It may be that he assumed that Ms Bermingham’s laughter was in response to a comment. Ms Byrnes, the applicants’ counsel, said after Nathan Riley’s oral evidence had concluded, that Mr Riley “understood Miss Bermingham to be laughing because a comment had been made by one of the teachers.” That may be a correct assessment of Mr Riley’s understanding. However, that does not establish that a comment was made.

95. The applicants have not established, on the balance of probabilities, that a staff member made a comment which prompted Ms Bermingham’s laughter.

Did the acts at the muster meeting of 23 June 2016 occur as alleged?

96. The applicants allege that Ms Head made a comment to Glen Braithwaite at the muster meeting of 23 June 2016, being “Make sure you bring them all back” (from the excursion). This is consistent with the complaint made to the President.

97. Ms Bermingham gave evidence, in a statement filed on 18 February 2019, that Glen Braithwaite stated at the muster meeting of 23 June 2016 that the ICaN excursion to the Dubbo Police Station was taking place that day. After Mr Braithwaite’s presentation, Ms Bermingham said words to the effect, “Make sure you bring them all back.” She stated that the comment was directed at and in reference to Mr Braithwaite only.

96. Ms Head’s evidence was that she heard Ms Bermingham say words to the effect, “Make sure you bring them all back” after Mr Braithwaite’s presentation on 23 June 2016.

97. Robert Riley’s evidence was that, on 23 June 2016, the Aboriginal Education Officer at the Dubbo College, Chantelle Lane, told him that, after Mr Braithwaite’s presentation, Ms Head said words to the effect of, “Do you think that’s a good idea? Make sure all the students come back.” Contrary to the respondent’s submission, this evidence was not “struck out”. However, it is second-hand evidence which contradicts the primary evidence of Ms Bermingham and Ms Head, and we do not accept it.

98. We find, on the basis of the evidence of Ms Bermingham and Ms Head, that Ms Bermingham said the words the applicants attribute to her. We also find that Ms Head did not say those words at the muster meeting of 23 June 2016.

99. The applicants did not contend in their submissions that Ms Head spoke the words at the muster meeting on 23 June 2016; they contended that they were spoken by Ms Bermingham. However, they did not amend their Further Amended Points of Claim to plead this. Nor did they amend their complaint to include an allegation that Ms Bermingham said those words.

Did the acts on the afternoon of 23 June 2016 occur as alleged?

102. Ms Head’s evidence is that she said to Glen Braithwaite, on 24 June 2016, shortly before the muster meeting or shortly after its commencement, “Glen, I’m glad you made it back.”

103. Robert Riley’s evidence in his written statement is that Ms Head said to Glen Braithwaite in his presence and that of Nathan Riley on the afternoon of 23 June 2016, “Oh Glen, I’m glad you made it back.” In their written submissions, the applicants submit that Robert Riley said that this comment was made on the morning of 24 June 2016, but this is a misreading of his statement.

104. The applicants submit that Ms Head’s note (written on or about 24 June 2016) supports the conclusion that she made the comment at the muster meeting on 24 June 2016. We agree. However, this is not what was pleaded.

105. It appears, from the applicants’ written submissions, that they no longer contend that Ms Head made a comment to Glen Braithwaite to the effect, “I’m glad you made it back” in Nathan and Robert Riley’s presence on the afternoon of 23 June 2016. Nathan Riley makes no mention of this occurring in his affidavit of 17 December 2018. Robert Riley was present at the meeting on 24 June 2016 when Ms Head states that she made the comment and may have wrongly remembered when the comment was made.

106. We find that Ms Head did not make the comment on 23 June 2016, as alleged in the Further Amended Points of Claim. Rather, she made it at the muster meeting on 24 June 2016.

107. The date and place on which a particular statement was made may appear to be trivial details which make no difference to the substance of the applicants’ claim. That is not so. Those contextual details make a substantive difference because vilification only occurs if there is a “public act”. The time and place at which a comment is made are therefore critical. Further, it is very challenging for a respondent effectively to respond to an allegation that a statement was made at a particular time and in a particular context, if it becomes apparent only when written submissions are filed after a hearing that the applicants are in fact alleging that it was made at a different time in a different context from that alleged in pleadings. In the context of a serious allegation such as racial vilification, it is important that an applicant does not depart from the allegation, as pleaded, without seeking leave to do so, so that a respondent has adequate notice of the allegation which is being pressed and an adequate opportunity to respond.

Were the acts public acts?

108. We do not consider that any of the acts the subject of the vilification complaint were “public acts”.

109. The laughter occurred at a muster meeting on 21 June 2019. Another comment was made at a muster meeting on 23 June 2016 (albeit by a different person from the alleged maker of the statement). It is alleged that Ms Head made a statement in conversation with Glen Braithwaite, Nathan Riley and Robert Riley, but it seems that it is now being alleged that that also occurred at a muster meeting.

110. For reasons which follow, we do not consider that a statement at a muster meeting is a public act. This means that, even if we were to give the applicants leave to pursue the allegations about vilification made in their submissions, which are not made in the Further Amended Points of Claim, they would not be able to establish this element of racial vilification.

111. Section 20B provides a definition of “public act” for the purposes of Division 3A of Part 2 (the division containing s 20C, which makes racial vilification unlawful). That definition is as follows:

20B Definition of “public act”

In this Division, public act includes:

(a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and

(b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and

(c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.

112. The definition is inclusive. As can be seen, each of the examples refers to “the public”. A public act may be “any form of communication to the public”, “any conduct… observable by the public” and “the distribution or dissemination of any matter to the public”.

113. The words “the public” and “public act” have their ordinary meaning. The first six definitions of “public” in the Macquarie Dictionary are as follows:

1.  of, relating to, or affecting the people as a whole or the community, state, or nation: public affairs.

2.  done, made, acting, etc., for the people or community as a whole: a public prosecutor.

3.  open to all the people: a public meeting.

4.  relating to or engaged in the affairs or service of the community or nation: a public official.

5.  maintained at the public expense, under public control, and open to the public generally: a public library.

6.  open to the view or knowledge of all; existing, done, etc., in public: the fact became public.

114. The general sense of the word “public” is something which is open to all or affecting the community as a whole.

115. We accept Ms Head’s evidence that the muster meetings were compulsory for teaching staff, and were open to contractors. They were not open to the general public.

116. As Ward JA has commented, “that the task of construing the racial vilification provisions is one to be approached with conservatism, recognising the high value placed by the common law, and by the legislature, on freedom of expression” (Jones v Trad [2013] NSWCA 389; (2013) 86 NSWLR 241 at 249 [27]; see also Sunol v Collier (No 2) [2012] NSWCA 44; (2012) 260 FLR 414, Allsop P at [59]).

117. The ordinary meaning of “public act” is an act in public. The requirement that it be public (for example, a statement in a place open to all, or a communication to the public generally) is to be understood in light of Ward JA’s recognition that the legislature places a high value on freedom of expression. The word “public” in s 20B of the AD Act should not, therefore, be given an unduly confined meaning.

118. In our opinion, an act at a school muster meeting is not a “public act”. A member of the public was not entitled to be present at the meeting or to hear what was said at the meeting. We do not accept the applicants’ submission that the “‘public’ can consist of employees and contractors at Delroy College.”

119. As the respondents submit, under s 4 of the Inclosed Lands Protection Act 1901, it is unlawful, without lawful excuse, to enter into inclosed lands without the consent of the owner, occupier or person apparently in charge. “Inclosed lands” includes “prescribed premises” which include a government school (Inclosed Lands Protection Act 1901, s 3). This provides a further reason why speech at a staff meeting, in the school library, is not a public act.

120. The evidence establishes that, as a practical matter, people other than staff and contractors did not attend the meetings. People wanting access to the school were required to sign in. Attendance at muster meetings was not open to the general public.

121. The cases upon which the applicants rely do not require a different result (Anderson v Thompson [2001] NSWADT 11; Z v University of A (No 7) [2004] NSWADT 81; Rae v Commissioner of Police, New South Wales Police Force (No 2) [2010] NSWADT 36; Barry v Futter [2011] NSWADT 205). As the applicants submit, in Barry v Futter [2011] NSWADT 205 at [74]-[76], the Tribunal identified factors which might indicate that an act is a “public act” for the purposes of s 38S of the AD Act, which renders transgender vilification unlawful:

“74 Whilst it is not possible to identify in advance all the types of circumstances that may be relevant in determining whether a communication by speaking is public or private, there are a number of factors that may indicate that the communication is to the public rather than a private communication and that might be relevant in the present case. First, where a speaker addresses an audience irrespective of whether there is any pre-existing relationship between the members of the audience and the speaker, the communication is more likely to be to the public. In that case, it is often appropriate to conclude that the speaker is addressing them in their capacities as members of the public and not because of their relationship. By way of contrast, speaking only to a family member, friend or acquaintance, fellow employee or co-participant in a joint activity, in that capacity, may be more likely to involve a private communication rather than a ‘public act’.

75 Secondly, the size of the audience may also indicate whether the communication is public or private. A speaker addressing a group of people is more likely to be communicating to the public than a speaker who is having a one on one conversation with another person. Nonetheless, a person who speaks to a series of people individually and seeks to communicate essentially the same message may be seen as speaking to a wider audience and not just engaging in private conversations.

76 Thirdly, the nature of the communication, the intentions of the parties to the communication and the circumstances giving rise to it may also give some indication of whether the communication is properly characterised as a public communication or a private conversation.”

122. Those considerations are equally applicable when considering ss 20B and 20C of the AD Act.

123. Here, the communications at muster meetings were made to an audience with whom Ms Head and Ms Bermingham had a pre-existing relationship (generally, a relationship with colleagues, subordinates or workers at Delroy). Further, the communications were in an employment context and a context in which school matters were discussed. This context indicates that the meeting was not public because matters confidential to staff could be discussed, including sensitive matters concerning named children. These factors point to a communication in a muster meeting being a private communication; or, at least, to such a communication not being a “public act”.

124. The applicants also rely upon Anderson v Thompson [2001] NSWADT 11, where the former Administrative Decisions Tribunal found that the shouting of words in a stairwell of an apartment building was a “public act”. The Tribunal members found that the words were “overheard, because they were shouted with such force” by persons in other units (at [25]). The Tribunal concluded that those words were communicated to the public (at [25]). It may be that, because the words were shouted loudly, the Tribunal had in mind that a member of the public, passing by the block of units, could have heard them. In any event, we do not consider that it inevitably flows from this decision that words spoken in a school library, at a staff meeting, constitute a public act.

125. We find that none of the pleaded acts was a “public act”.

126. We also find that, if, contrary to our view, it is open to us to consider the acts which were not pleaded but were the subject of submissions (as discussed above), those acts were not public acts.

Were the acts capable of inciting serious contempt for, or severe ridicule of, a group of persons?

127. It is not strictly necessary for us to decide whether the acts were capable of inciting serious contempt for, or severe ridicule of, Aboriginal persons, in light of our findings that the acts were not public acts. However, as this matter was argued, we express our brief reasons.

128. The only act which was pleaded as an act of vilification and which we have found to have occurred is Ms Bermingham laughing during Nathan Riley’s presentation on 21 June 2016.

129. The word “incite”, when used in vilification provisions, has its ordinary natural meaning (being “to rouse, to stimulate, to urge, to spur on, to stir up, to animate” and it covers “words which command, request, propose, advise or encourage”): Sunol v Collier (No 2) [2012] NSWCA 44; (2012) 260 FLR 414, Bathurst CJ at [26]-[28].

130. The words “hatred”, “serious contempt” and “severe ridicule” are to be given their ordinary meaning: Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [40]; Ekermawi v Jones (No 3) [2014] NSWCATAD 58 at [33]. The applicants allege in their Further Amended Points of Claim that the public acts of Ms Head and Ms Bermingham incited severe ridicule and severe (presumably they mean serious) contempt. In Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [40], the Tribunal set out the ordinary meaning of “serious”, “contempt”, “severe” and “ridicule”, as defined in the Macquarie Dictionary and Oxford Dictionary:

•   ““serious” means “important, grave” (Oxford); “weighty, important” (Macquarie);

•   “contempt” means “the action of scorning or despising, the mental attitude in which something or someone is considered as worthless or of little account” (Oxford); the feeling with which one regards anything considered mean, vile, or worthless (Macquarie);

•   “severe” means “rigorous, strict or harsh” (Oxford); “harsh, extreme” (Macquarie);

•   “ridicule” means “subject to ridicule or mockery; make fun of, deride, laugh at” (Oxford); “words or actions intended to excite contemptuous laughter at a person or thing; derision” (Macquarie).”

131. It is not necessary for a person to in fact be incited by the act, and it is not necessary to show an intention to incite: Sunol v Collier (No 2) [2012] NSWCA 44; (2012) 260 FLR 414, Bathurst CJ at [29]-[31] (Allsop P agreeing). The public act must incite serious contempt for, or severe ridicule of, persons in an ordinary member of the class of persons to whom it is directed: Sunol v Collier (No 2) [2012] NSWCA 44; (2012) 260 FLR 414, Bathurst CJ at [33]-[34].

132. In Sunol v Collier (No 2) [2012] NSWCA 44; (2012) 260 FLR 414 at [60], Allsop P commented that s 49ZT(1) of the AD Act, which makes homosexual vilification unlawful, “reflects an attempt by Parliament to weigh the policies of preventing vilification and permitting appropriate avenues of free speech.” His Honour then made the following comments (at [62]) about s 49ZT(1), which is in similar terms to s 20C(1):

“…satisfaction of s 49ZT(1) is not necessarily to be assumed or concluded by rude, indecorous, base or insulting language that reflects some dislike of, or opposition to, homosexuality. The section provides for an act to incite hatred, serious contempt, or severe ridicule. Fine linguistic distinctions should of course not be drawn which may deflect attention from the language of the statute. The words of the statute are to be applied with a recognition of the degree or quality of the act contemplated by the language. The act is to be assessed by reference to the context in which it takes place, including the audience or likely audience.”

133. Basten JA commented in the same case (at [79]) that “[m]ere insults, invective or abuse will not engage the prohibition.”

134. We do not consider that Ms Bermingham’s laughter at the muster meeting is an act capable of inciting serious contempt for, or severe ridicule of, Aboriginal persons in ordinary persons (such as staff members) attending the muster meeting. Whilst we accept that laughter may, in some circumstances, convey extreme derision and incite serious contempt, the applicants have not established that it did so in these circumstances.

Conclusion

135. For these reasons, the applicants have not established that either of the respondents contravened s 20C(1) of the AD Act.

Discrimination against Nathan Riley on the ground of race

136. The applicants contend that the State discriminated against Nathan Riley on the ground of race, in contravention of s 10(b), (c) and (d) of the AD Act.

137. Section 10 of the AD Act provides:

10   Discrimination against contract workers

It is unlawful for a principal to discriminate against a contract worker on the ground of race:

(a)  in the terms on which the principal allows him or her to work,

(b)  by not allowing him or her to work or continue to work,

(c)  by denying him or her access, or limiting his or her access, to any benefit associated with the work in respect of which the contract with his or her employer is made, or

(d)  by subjecting him or her to any other detriment.

138. A “contract worker” is defined to mean “an employee who, under a contract of employment performs work for an employer who has undertaken to perform that work for another person” (AD Act, s 4).

139. Section 7 of the AD Act provides for what constitutes discrimination on the ground of race. The applicants’ submissions make clear that they are relying only upon s 7(1)(a) (direct discrimination). They do not rely upon s 7(2) (the characteristics extension). Section 7(1)(a) 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 the perpetrator:

(a) on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, 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 …

140. There is no dispute that Nathan Riley is of the Aboriginal race.

141. In order to prove that the State discriminated against Nathan Riley on the ground of race, contrary to s 10, the applicants must prove:

1. Nathan Riley was a contract worker and the State was the principal;

2. The State treated Nathan Riley less favourably than in the same circumstances, or in circumstances which are not materially different, it treats or would treat a person of a different race;

3. At least one of the reasons for the differential treatment was his race; and

4. The discriminatory treatment consisted in not allowing him to continue to work, denying him access to a benefit and/or subjecting him to a detriment.

Alleged discriminatory conduct

142. The applicants plead, in their Further Amended Points of Claim, that the State subjected Nathan Riley to a number of detriments (within s 10(d)) on the ground of his race. This is said to have occurred by:

1. Ms Head making unfavourable reports about Nathan Riley to the executive principal, Stacey Exner;

2. Ms Head cancelling various ICaN projects; and

3. Ms Head excessively reprimanding Nathan Riley.

240. The applicants have not explained why they say that Robert Riley’s words constituted an allegation of racial discrimination, nor have they explained why they say that speaking those words was doing something under or by reference to the AD Act.

241. We do not consider that Robert Riley’s complaint that Ms Head’s comments were racially offensive amounted to an allegation that Ms Head had committed an act which would amount to a contravention of the AD Act within s 50(1)(c) of the AD Act. The applicants have not pleaded that the allegation was that Ms Head had committed an act of racial vilification. We note, however, that making a racially offensive comment is not, without more, racial vilification, because it does not necessarily incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of race. Robert Riley’s words did not allege that Ms Head’s comments had this character. Nor is making a racially offensive comment, without more, racial discrimination.

242. The applicants have not established that Robert Riley’s complaint that Ms Head’s comments were racially offensive was doing anything under or by reference to the AD Act in relation to Ms Head or anyone else (within s 50(1)(d) of the AD Act).

243. For these reasons, Robert Riley’s remark on 22 July 2016 did not provide a “trigger” for the victimisation complaint.

Did Robert Riley make an allegation of racial discrimination or do something by reference to the AD Act on or around 29 July 2016?

247. The applicants allege in the Further Amended Points of Claim that, after the equity meeting in term 3 of 2016 on or around 29 July 2016, Robert Riley spoke with Glen Braithwaite and said words to the following effect: “Mate, it feels like our program is being treated differently in the school than others run by non-indigenous facilitators.”

248. In their written submissions, the applicants submit that these words were spoken at a meeting with Mr Braithwaite in early August 2016. This is consistent with Robert Riley’s statement. Mr Braithwaite’s evidence is that he recalls the meeting taking place, but he does not indicate whether he remembers those words being spoken.

249. We find, on the basis of Robert Riley’s evidence, that he said words to the effect of those alleged in early August 2016.

250. The applicants submit that this is a complaint of racial discrimination, made on behalf of Robert Riley, Nathan Riley and ICaN, falling within s 50(1)(c) and/or (d) of the AD Act, but do not say anything further about it. They do not explain how it constitutes a complaint of racial discrimination.

251. The complaint made by Robert Riley was of differential treatment of the program. It was not, on its face, a complaint about differential treatment of individuals. The applicants have not identified the individual whom they say Robert Riley alleged was discriminated against, unless it may be inferred that they are claiming that the complaint was that Robert, Nathan and James Riley were all discriminated against.

252. We do not consider, on balance, that those words constitute an allegation of racial discrimination. That is, first, because they do not identify an individual or “person” who is said to have been treated less favourably on the ground of race than a non-indigenous person (see AD Act, s 7(1)(a)).

253. If the complaint is, in substance, that Robert and James Riley were discriminated against on the ground of race, that would not be “an act which … would amount to a contravention of” the AD Act (within s 50(1)(c)). That is because Robert and James Riley do not fall within any of the categories of person within Division 2 or 3 of Part 2 of the AD Act against whom it is unlawful to discriminate. The applicants made no submissions as to the provision of the AD Act which they claimed would be contravened if the complaint is to be understood as a complaint that Robert and James Riley were discriminated against.

254. It should be noted that the applicants made, but did not press, a complaint of racial discrimination made by Robert and James Riley under s 8 of the AD Act on the basis that the State was their “employer”. In the context of the victimisation complaint, this was not repeated. However, insofar as Robert’s complaint in early August 2016 about the program being treated differently is one of discrimination against him and his brother, we find that the State was not their “employer” within s 8.

255. We are not satisfied that Robert Riley’s words constitute a complaint that the State (through Delroy) discriminated against Nathan Riley on the ground of race.

256. Making the complaint was not doing anything under or by reference to the AD Act (within s 50(1)(d) of the AD Act). Robert Riley did not refer to that Act, explicitly or implicitly.

257. For these reasons, the words spoken by Robert Riley to Glen Braithwaite in early August 2016 did not provide a basis, under s 50(1)(c) or (d), for the victimisation complaint.

Did Robert Riley make an allegation of racial discrimination or do something by reference to the AD Act on 22 August 2016?

258. The applicants plead that Robert Riley informed Ms Exner in a telephone call, on 22 August 2016, that he intended to lodge a formal complaint with the Department of Education.

259. The respondents admit that Mr Robert Riley made a complaint, on 22 August 2019, to Ms Exner.

260. Robert Riley’s evidence is that the telephone call was made after a meeting in which Ms Head said to him that ICaN’s contract would not be continuing in term 4 of 2016, due to lack of funding. In his statement, Robert Riley states: “I informed Ms Exner during that telephone call that I intended to lodge a formal complaint with the Department of Education.”

261. Ms Exner’s evidence is that Robert Riley said to her in the telephone call words to the effect, “I am not happy about being unable to work at Delroy. It is bad for my business. I am going to make a formal complaint.”

262. The sequence of events indicates that Robert Riley’s statement that he was going to make a complaint was not causative of the decision not to proceed with ICaN in term 4 of 2016. It followed that decision.

263. There is no evidence that the statement made by Robert Riley to Stacey Exner on 22 August 2016 was a complaint of racial discrimination or that it was doing something by reference to the AD Act (within s 50(1)(c) or (d) of the AD Act). Robert Riley’s statement that he was going to lodge a formal complaint does not, of itself, amount to a complaint of racial discrimination. It could have been, simply, a proposed complaint about the termination of ICaN’s services. There is insufficient evidence for us to conclude that it was anything else.

264. The applicants have not established that the words attributed to Robert Riley by Ms Exner constitute a complaint of racial discrimination.

265. Accordingly, we are not satisfied that the words spoken by Robert Riley to Ms Exner on the telephone on 22 August 2016 were capable of supporting a complaint of victimisation.

Formal complaint made to the Department of Education

266. The applicants plead that, on 15 September 2016, ICaN made a formal complaint of racial discrimination to the Department of Education on behalf of all three applicants. In the Further Amended Points of Claim, it is alleged that, on the ground of this formal complaint, the principals of the other campuses subjected Robert Riley to detriments. The applicants no longer press the claims of victimisation relating to the other campuses.

267. An available reading of the Further Amended Points of Claim is that the applicants also plead that, on the ground of the formal complaint, Dubbo College subjected Robert Riley to the detriment of withdrawing the offer to ICaN to conduct cultural awareness training.

268. The applicants allege in their submissions that Delroy did not proceed with a proposal, made by ICaN, to provide cultural awareness training to staff. The applicants submit that “[t]he inference is available that a reason for not proceeding to engage ICAN to conduct the cultural awareness training for staff was that Mr Robert Riley had made a formal complaint of race discrimination.”

269. There is no evidence as to when the decision not to proceed with the staff training was made. We find, on the basis of Ms Exner’s evidence, that Ms Head made a comment on 22 August 2016, indicating that she was still considering engaging ICaN to provide cultural awareness training to staff. However, the evidence does not establish whether she decided against this before or after 15 September 2016.

270. The applicants have therefore not established that a reason for the decision not to engage ICaN to provide that training was Robert Riley’s formal complaint.

271. Further, we are not persuaded that the decision not to proceed with staff cultural awareness training (which had only ever been a proposal) subjected Robert Riley to a “detriment”. Nothing was taken away from him by this decision; rather, Ms Head, on behalf of the State, decided not to confer a benefit upon ICaN (and, through ICaN, on Robert Riley).

Conclusion as to victimisation

272. For these reasons, the applicants’ victimisation claims are not established.

Liability of Ms Head

273. The applicants plead that Ms Head is liable under s 52 of the AD Act, for causing the State to contravene the AD Act. Section 52 provides:

It is unlawful for a person to cause, instruct, induce, aid or permit another person to do an act that is unlawful by reason of a provision of this Act.

274. The applicants submit that the Department of Education is a “person” (relying upon s 21(1) of the Interpretation Act 1987). They allege that Ms Head has “permitted” or “caused” the Department of Education to victimise Robert Riley, James Riley and Nathan Riley by her conduct, including her decision not to continue ICaN’s services in term 4 of 2016.

275. The first respondent, the State of New South Wales, acting through the Department of Education, is a “person”.

276. However, as we have not found that the State has done an act which is unlawful by reason of a provision of the AD Act, the claim against Ms Head must fail.

Costs

277. All parties indicated that they wished to be heard on costs.

278. We have made orders allowing for each party to make an application for costs and for material to be provided in response to any such application.

279. Our preliminary view is that the issues for determination on any costs application could adequately be determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal (see Civil and Administrative Tribunal Act 2013, s 50). However, we will consider any submissions to the contrary, which are to be made when applying for, or responding to, an application for costs.

Orders

280. We make the following orders:

1. The applicants’ application is dismissed.

2. Any party may make an application for costs by providing any evidence and submissions in support of such application to the Tribunal and the other parties by 19 November 2019.

3. Any party against whom, or against which, a costs application is made, is to provide any submissions and evidence on which the party intends to rely in response to the costs application, to the Tribunal and the other parties by 3 December 2019.

4. The applicant for a costs order is to provide any reply to the Tribunal and the other parties by 10 December 2019.

5. Any party applying for costs, or responding to an application for costs, is to address in the party’s submissions whether the costs application should be dealt with on the papers.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 29 October 2019