VN on behalf of Vo v Office of the Board of Studies NSW

[2006] NSWADT 106

CITATION:	VN on behalf of VO v Office of the Board of Studies NSW [2006] NSWADT 106
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT VN on behalf of VO RESPONDENT Office of the Board of Studies NSW
FILE NUMBER:	051146
HEARING DATES:	13/03/06-14/03/06
SUBMISSIONS CLOSED:	03/21/2006
DATE OF DECISION:	04/11/2006
BEFORE:	Rice S - Judicial Member; Hayes E - Non Judicial Member; O'Sullivan M - Non Judicial Member
CATCHWORDS:	Race Discrimination - Goods and Services
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Education Act 1990
CASES CITED:	Commissioner of Police, NSW Police Service v Estate Edward John Russell & ors [2001] NSWSC 745 Director General, Department of Education & Training v FP and FQ on behalf of FR (EOD) [2003] NSWADTAP 51 Purvis v New South Wales (Department of Education and Training) [2003] HCA 62
REPRESENTATION:	APPLICANT In person RESPONDENT C Ronalds, SC
ORDERS:	That the complaint be dismissed.

Non-disclosure order

1 A ‘non-disclosure’ order has been made under s75(2)(b)(i) of the Administrative Decisions Tribunal Act. That order remains in force. The order prohibits the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, each of the applicant, her son, and the school at which her son is enrolled. Further, the order prohibits the doing of any other thing that identifies, or may lead to the identification of, each of the applicant, her son, and the school at which her son is enrolled.

Decision

2 For the reasons we give below, the complaint is dismissed. This means that the applicant is unsuccessful in her complaint.

Undertaking languages other than English for the Higher School Certificate

3 Subjects that are studied and examined – for which we use the word ‘undertaken’ – for the NSW Higher School Certificate are developed and endorsed by the NSW Board of Studies (s102 Education Act). The Board determines a range of levels and courses in which students may undertake different subjects.

4 Languages other than English may be undertaken in various courses, the range of which differs according to the particular language. In 2006 French, for example, is available in courses called ‘Beginners’ and ‘Continuers’, Russian is available only in a course called ‘Background Speakers’, and Chinese is available in courses called ‘Beginners’, ‘Continuers’ and ‘Background Speakers’. (‘Chinese’, evidence from the Board tells us, is the modern standard/official version of the language of the People’s Republic of China that is known variously as Mandarin, Guoyu, Huayu, Hanyu, Zhongwen and Zhongguohua).

5 Only five languages – Chinese, Indonesian, Japanese, Korean and Malay – are available in both Continuers and Background Speakers courses. A student of one of those languages is not, however, free to choose whether to undertake the Continuers course. Rather, the Board requires a student to undertake the Background Speakers course unless the student can establish their eligibility to undertake the Continuers course.

6 There is therefore a difference between, on the one hand, Chinese, where the Background Speakers course must be undertaken unless eligibility for the Continuers course is established and, say, French, where the Continuers course can be undertaken with no need to establish eligibility. This difference is at the heart of the complaint we have been asked to determine.

Applicant’s history

7 In 2005 a young man was enrolled in Year 11 at a Sydney secondary school. He was born in China of Chinese parents, and migrated here when aged eight. He is of Chinese descent. His national origin is Chinese. Within the very broad grouping of ‘Chinese’ his ethnic origin is Han. Before migrating here the young man spoke and understood only Chinese. He attended one year of formal schooling in China. He heard only Chinese spoken at home. The extent to which he has heard and spoken Chinese at home since being in Australia is disputed although, as we explain below, that does not need to be decided by us.

8 Although of Chinese national origin, the young man’s nationality is Australian. He is an Australian citizen who has lived more than half his life to date in Australia, attending Australian schools. It seems he could fairly be described, in contemporary terminology, as Australian of Chinese background. For purposes of the Anti-Discrimination Act and its non-exhaustive definition of ‘race’ in section 4, the young man’s ‘race’ is Chinese by reference to his descent and national origin.

9 The young man is enrolled in a range of subjects, endorsed by the Board, that he intends undertaking for the HSC this year, 2006. One of those subjects is Chinese. In 2005, in preparation for the HSC, he was undertaking the Continuers course. Presumably he did so because the school, acting as delegate for the Board in such matters, in fact satisfied itself that he met the eligibility criteria for undertaking the Continuers course in Chinese rather than the Background Speakers course.

10 During 2005 a discussion between the young man and a teacher gave the school reason to believe that he was not, in fact, eligible to undertake the Continuers course in Chinese because it appeared to the school that the young man’s family spoke Chinese at home. The school, on the basis of that discussion and, it seems, without any further inquiry into the young man’s actual history and circumstances, altered the boy’s enrolment in Chinese to the Background Speakers course. That decision was subsequently confirmed by the Board after it made its own inquiries into the young man’s eligibility to undertake Chinese in the Continuers course. The Board formed the view that he had knowledge of the language derived from its being spoken at home, and that that made him ineligible to undertake the Continuers course in Chinese.

11 It was that change of enrolment in Chinese, from the Continuers course to the Background Speakers course that resulted in a complaint being made under the Anti-Discrimination Act. The complaint was made by the young man’s mother on his behalf (s87A(1)(b) Anti-Discrimination Act), and we refer to her as the applicant.

Discrimination complaint

12 The applicant’s complaint, on behalf of her son, is that “the eligibility rules discriminate against the ethnic background students”. In particular, she said in her complaint to the Anti-Discrimination Board, the Board discriminates “against the students [of “Asian ethnic origins”] by . . . constructing the eligibility rules which target the students’ ethnic backgrounds rather than considering their actual language skills in these languages; disqualifying my son to undertake Chinese Continuers course on the basis of his ethnic background rather than his actual Chinese language skills, [and] setting up different rules between Asian languages and the European languages in enrolling in the Continues course”.

13 If the complaint is expressed in terms of the Anti-Discrimination Act (ss4A, 7(1)(a)), it is that the Board treated a student of an Asian race less favourably in the same or similar circumstances than it treated a student not of an Asian race, on the ground, at least in part, of the student’s Asian race, in three different ways: when it:

designed the criteria that it uses to assess eligibility for the Continuers course,

required the young man, by reference to those eligibility criteria, to undertake Chinese in the Background Speakers course, and

set up a different regime, as between Asian languages and European languages, for in enrolling in a Continuers course.

14 As the Board’s senior counsel acknowledged at the inquiry, this looks “at first blush” like a case of race discrimination. The perception arises because of the apparent interplay between a student’s race, a student’s ‘background’ and ability in a language other than English, and decisions that are made about the course in which a student is eligible to undertake a language.

Eligibility criteria

15 It is unfortunate that the eligibility criteria that are the focus of the complaint are not, in their precise terms, the actual eligibility criteria that the Board applied at the time. Our inquiry is necessarily into the conduct that did occur, and so we must consider the eligibility criteria that were in fact applied.

16 The published eligibility criteria for undertaking Continuers level in Chinese, on which the applicant relied in making her complaint and which she was quite justified in thinking were the criteria that had been applied at the time, were those published by the Board in its ‘Assessment Certification and Examination (ACE) Manual’ (October 2002) at paragraph 11.12.3.1. The relevant part reads:

Students who wish to study a language for the Higher School Certificate for which there is a Background Speakers course must be enrolled in the Background Speakers course unless they can clearly demonstrate:
that their knowledge of the language derives solely from the study of it as a second (or subsequent language) in an education system in which that language was not the medium of instruction; or

that their knowledge of the language is derived from no more than one year’s formal education (up top Year 1 or equivalent) in the language, in a country where the language is the medium of instruction.

Students who fall into either of these categories are eligible to enrol in the Continuers course.
17 The applicant understood that the effect of these eligibility criteria was that her son, who wished to study for the Higher School Certificate a language for which there is a Background Speakers course, Chinese, need not be enrolled in that course because – referring to the second criterion – he could clearly demonstrate that his knowledge of Chinese was derived from no more than one year’s formal education (up to Year 1 or equivalent) in Chinese, in a country where the language is the medium of instruction, China.

18 The applicant’s understanding of the phrase “knowledge of the language is derived from no more than one year’s formal education . . . in the language” was that it excluded from the Continuers course a student whose knowledge of the language derived from two, or three, or more year’s formal education in the language, but that it did not exclude from the Continuers course a student whose knowledge of the language derived from sources other than such formal education. In her complaint to the Anti-Discrimination Board the applicant said “The eligibility rules refer to formal education [original emphasis]. However in my son’s case, the Board has extended the rules to the area outside of formal education” It [the Board] suggests that my son’s preschool language ability should be responsible for his Chinese HSC examination at the most advanced level”.

19 On the applicant’s interpretation her son is eligible for the Continuers course. Her interpretation of the second criterion is a reasonable one. In fact, it is more obvious to us than the interpretation that officers of the Board say the Board has, and had at the relevant time.

20 On the Board’s interpretation the applicant’s son is not eligible for the Continuers course. The Board’s interpretation, which is less obvious but nevertheless available, is that the phrase “no more than one year’s formal education” means, effectively, ‘nothing other than one year’s formal education’ [our emphasis]. The measure of “no more than” is not, the Board says, a measure of the number of years of formal education allowed, but a measure of the range of circumstances from which a student may derive knowledge of the language, of which one year’s formal education is but one.

21 It was, says the Board, through its reliance on this interpretation that it took into account its view that the young man had derived knowledge of the Chinese language from having heard it spoken at home. Because there was, in the Board’s view, a source from which the young man derived knowledge of the language that was in addition to his having had one year’s formal education in China, the Board considered that he failed the eligibility criteria for the Continuers course.

22 Officers of the Board gave evidence that this was indeed the approach the Board took to the eligibility criteria. Ms Penelope Robertson, a senior curriculum officer at the Board, said of the eligibility criteria “It was clear that students who spoke the language at home could not comply with these rules, as their knowledge of the language did not come solely from learning it at school, nor did it derive from only one year of instruction in a country where the language was the medium of instruction”.

23 Relevantly to this question of interpretation, Ms Robertson had previously said, in a conversation with the applicant “ . . . the school has applied the rules correctly. You speak Chinese at home . . . ”. Further, Ms Robertson’s handwritten file note recording that conversation states “Asked her if I understood correctly that they speak Mand[arin] at home and she helps him”. This evidence supports the Board’s claim that it did apply the eligibility criteria in the way that it claims, that is, in a way that made relevant the fact that the language was spoken at home.

24 Mr Maxwell Pearce, Chief Examinations Project Officer at the Board, was the person who made the Board’s decision that the young man was not eligible to undertake the Chinese Continuers course. Mr Pearce said he made that decision because, he believed, the young man “had spoken Mandarin until the age of eight and that he still heard Mandarin spoken at home”.

25 Consistently with her different interpretation of the eligibility criteria, the applicant, in her response to Mr Pearce’s decision, wrote that in her view, “the eligibility rules only refer to formal education in the language. The rules do not cover the pre-school language ability”. But, clearly demonstrating to us that the Board at the time did in fact apply its interpretation of the eligibility criteria, Mr Pearce wrote back to the applicant saying “because . . . [the young man] spoke Mandarin until the age of eight . . . his knowledge of Chinese does not derive solely from the study of it as a second language or from no more than one year’s formal education (up to year 1) in the language”.

26 In his evidence Mr Pearce reiterated that this remains his view, saying “it is my opinion that [the young man] is not eligible for Chinese Continuers” because he believes that the young man spoke Chinese until the age of eight and regularly spoke it at home until at least the age of 15. This, says Mr Pearce, means that the young man’s knowledge of Chinese “is derived from more than one year’s formal education (up to Year 1 or equivalent)” in China.

27 We understand from Ms Robertson’s evidence that in 2006 the ACE Manual has been revised, and the eligibility criteria restated. The eligibility rules now state, in part:

Students must be enrolled in the Background Speakers course if they speak or write the language at home, or elsewhere outside the classroom, in a sustained manner with a person or persons who have [sic] a background in using the language.
28 Ms Robertson’s view is that the 2006 publication is a “clarification” of the previous statement of the eligibility criteria which “does not change the policy or the procedure already established to determine eligibility. The updated rules simply clarify the 2001 eligibility rules and are consistent with the version printed in the previous [October 2002] ACE Manual”.

29 Whether or not Ms Robertson’s claim for consistency between the 2002 and the 2006 formulation of the eligibility criteria is correct, we are satisfied that the eligibility criteria as they were expressed in the 2002 ACE Manual were in fact given effect to in the manner described by the Board and its officers, and as subsequently set out in explicit terms in the 2006 publication.

30 The purpose of the above analysis is to make clear what the conduct was that is the subject of the complaint. It is not the design and application of the published eligibility criteria in the way the applicant, quite reasonably in our view, understood them, but the design and application of the published eligibility criteria in a particular way that the Board actually interpreted them.

31 We find that the Board assessed the young man’s eligibility for Continuers Chinese not by reference only to the fact that he derived his knowledge of the language from no more than one year’s formal education (up to Year 1 or equivalent) in the Chinese language in China, but also by reference to the fact that, the Board believed, he derived his knowledge of the language from its being spoken at home.

Scope of the inquiry

32 Although the applicant has complained of discriminatory conduct on the ground of race, it is clear to us from her evidence and her submissions that she is aggrieved as well by what she believes to have been the unfairness of two things. The first is an assumption, implicit in the Board’s approach although explained to us in evidence, that exposure to a language other than English at home is relevant to a student’s ability in that language. The second is what the applicant says is the Board’s mistaken view that Chinese was actually spoken at home such that her son derived knowledge of it; she believes, for example, that inferences the Board drew from school enrolment forms were unwarranted.

33 We explained to the applicant during the inquiry that we do not have the function of reviewing the reasonableness of an administrative requirement, or the correctness of an administrative decision, and the reasonableness or appropriateness of the eligibility requirements is a policy matter for debate and decision elsewhere. Nevertheless, the applicant returned more than once in her evidence, questions and submissions to the detail of the decision that was made and the process and reasoning behind it. As well, the Board offered evidence in defence of its decision that the young man failed the eligibility criteria.

34 We have some sympathy for the applicant’s concerns. We have already remarked that it is unfortunate that the eligibility criteria were not, as published, the actual eligibility criteria that the Board applied; the applicant refers to a “hidden rule”. The applicant, with some justification, questions the reliability and sufficiency of the material that led the Board to conclude that her son failed the eligibility criteria, and the adequacy of the Board’s explanation to her of its processes, reasoning, and expectations of her if she was to contest the decision. The Board might consider reviewing its processes in this regard.

35 It remains the case, however, that the correctness or merits of the Board’s decision about the applicant’s son’s eligibility for a Continuers course is not one that is reviewable by this Tribunal (s107 Education Act). We are concerned only with the discrimination complaint set out in paragraphs 12 and 13 above.

Conduct complained of

36 The first aspect of the complaint as we have set it out in paragraph 13 above is whether the eligibility criteria, in their terms, discriminate on the ground of race. Under the Anti-Discrimination Act it is necessary for a person to have been subject to treatment before an act of unlawful discrimination occurs. To put it another way, someone must be affected before any complaint can be made. It is not therefore possible to ask whether the eligibility criteria were, as the applicant puts it, ‘constructed to target student’s ethic backgrounds’. The first way in which the discrimination complaint is put is misconceived.

37 A relevant question is raised in the second aspect of the complaint (paragraph 13 above): whether the Board’s eligibility criteria did in fact operate in a way that treated her son, on the ground of his race, less favourably than someone not of his race in the same circumstances. The third aspect of the complaint (paragraph 13 above) identifies a different but also relevant question: whether the Board, by subjecting the young man to the eligibility criteria at all, treated her son on the ground of his race less favourably than someone not of his race in the same circumstances.

38 The complaint that has been referred to us is really about two different ‘treatments’. Conceptually they are better expressed in reverse order from the way we have just set them out: the first is the act of subjecting the young man to the eligibility criteria at all, and the second is, once he is subjected to them, the manner of their operation on him.

Provision of a service

39 If conduct is to be properly the subject of a discrimination complaint then it needs to have happened in an area of activity covered by the Anti-Discrimination Act. Although this complaint concerns ‘education’ the Board is not involved in education in a way that is covered by s17 (race discrimination in education). We reject the applicant’s submission that s17 is raised by her complaint.

40 The Board concedes that it provides ‘services’ within the meaning of s19 of the Anti-Discrimination Act (and see Commissioner of Police, NSW Police Service v Estate Edward John Russell & ors [2001] NSWSC 745) but makes the point that s19 covers only the refusal of a service, and the terms on which a service is provided. The Board does not concede that either of these is a proper description of the conduct complained of.

41 It would be possible, as the Board acknowledges, to characterise the conduct complained of as a ‘refusal’ to provide services, being enrolment in the Chinese Continuers course, or as relating to the “terms” on which a service, being the enrolment in Chinese Continuers course, is provided. Because we find that the conduct is not unlawful discrimination we do not need to decide this conclusively.

Less favourable treatment

42 We assume at this stage, without needing to decide it, that having to undertake a Background Speakers course, rather than being allowed to undertake a Continuers course, is “less favourable treatment”. The applicant says that it is, and refers to the Background Speakers course as being the study of Chinese “at the most advanced level”. It is not, however, at all clear that this is so. The Board’s evidence is that the two courses are simply different, rather than more or less advanced than each other. But because we find that the conduct is not unlawful discrimination we do not need to decide this.

Discrimination by imposing the eligibility criteria

43 We deal now with the first of the two different ‘treatments’ that are the subject of the complaint (paragraph 13): did the Board, by subjecting him to the eligibility criteria, treat the young man less favourably, at least in part on the ground of his race, than it treated students not of his race in the same or materially similar circumstances?

44 In framing the question this way we have, as we noted in paragraph 13 above, used the language of s7(1)(a) of the Anti-Discrimination Act, which sets out a test for direct discrimination. It may be that the question could be asked differently, under s7(1)(c) (indirect discrimination): did the Board require the young man to comply with a requirement or condition with which a substantially higher proportion of persons who are not of Chinese origin comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which young man does not or is not able to comply?

45 In preparing the matter for inquiry the applicant advised the Tribunal and the Board that she was not making her claim as one of indirect discrimination. Accordingly the matter was prepared for the inquiry on that basis, and neither the applicant nor Board attended the hearing with the necessary evidence to address the considerations that arise under s7(1)(c). The matter was listed and conducted expeditiously, as the young man is currently studying for his HSC. In those circumstances it is not open to us, as a matter of fairness, to inquire into whether subjecting the young man to eligibility requirements for access to a Continuers course was indirect discrimination (see Director General, Department of Education & Training v FP and FQ on behalf of FR (EOD) [2003] NSWADTAP 51 at [12]-[33]). We are compelled to say this despite the applicant’s written submissions to us seeming to rely on reasoning more suited to an argument of indirect discrimination (but see paragraph 56 below).

46 Returning to the test for direct discrimination, the circumstances in which the treatment occurred were that the young man wanted to undertake an HSC subject, developed and endorsed by the Board, in a language other than English. There are many other ‘comparators’: people in the same or materially similar circumstances who are not Chinese.

47 The Board concedes that in those circumstances there is differential treatment: some students of languages other than English are subject to eligibility criteria before they can undertake the Continuers course in that language, and some are not.

48 The correct approach is to ask ‘why does this happen?’; ‘why does the Board do this?’ (see Purvisv New South Wales (Department of Education and Training) [2003] HCA 62 per McHugh and Kirby JJ at [148]; Gummow, Hayne and Heydon JJ at [236]). More specifically, although it is not substantively a different question, why did it happen to the young man?

49 The applicant says that it happens on the ground of race; that on the ground of his race her son was subject to eligibility criteria before he could undertake a Continuers course, and that students not of his race were not subject to eligibility criteria before they could undertake a Continuers course.

50 There is no direct or even circumstantial evidence that could support an inference that the young man’s race, or any student’s race, is a ground for being subject to eligibility criteria to undertake a Continuers course. The evidence to the inquiry clearly establishes that whether a student is subject to eligibility criteria for access to a Continuers course depends only on which language they have chosen to undertake. The eligibility criteria exist for some languages and not for others; they exist for example, for Chinese but not for French. Students of any race can undertake any language.

51 A student who undertakes Chinese is subject to eligibility criteria for a Continuers course; a student who undertakes French is not subject to eligibility criteria for a Continuers course. This is so regardless of the race of the student. A student of Chinese origin and a student of, say, African origin, who undertake Chinese are both subject to eligibility criteria for the Continuers course. A student of Chinese origin and a student of, say, African origin who undertake French are not subject to eligibility criteria for the Continuers course. The point of differentiation is the language chosen to be undertaken, not the race of the student who undertakes it.

52 The Board’s evidence is that it offers a Background Speakers course for some languages and not others, and consequently imposes eligibility criteria for Continuers courses in some languages and not others, for a range of reasons, none of which is a student’s race. Research indicates that different languages pose markedly different challenges for native English speaking students, and that different languages are more or less easily learnt according to whether students have had previous exposure those languages, particularly to the age of about four. This research informs the Board’s development of Continuers and Background courses in some languages because of a philosophy at the Board that students undertaking languages other than English should do so, as far as possible, on equal terms.

53 A further but unrelated reason for offering different courses is that, as a matter of national educational government policy, some languages have been given priority over others, resulting in the creation of Background Speakers courses in those languages. Yet another reason for the differentiation is that there are efficiencies and economies of scale in deciding what languages should be taught in what way, according to the degree of interest among students.

54 The applicant is not able to refute this evidence. The evidence is given by senior officers of the Board with extensive experience and qualifications in curriculum design and development for languages. There is, as we have said above, no indication that race is a ground for students’ being treated differently in having to meet eligibility criteria for a Continuers course. To the contrary, there is clear evidence that shows that students are subject to the same criteria regardless of their race, and that the real reason the Board treats students differently in having to meet eligibility criteria for a Continuers course is that some languages are offered on that basis and others are not, for genuinely held educational reasons.

55 On the basis of the evidence, therefore, we are satisfied that the particular treatment complained of is not unlawful discrimination.

56 We note that the evidence that establishes the real reason for the Board’s imposing eligibility requirements strongly suggests that, had there been an inquiry into indirect discrimination, the Board’s requirement that eligibility criteria be met would have been found to be reasonable in the circumstances.

Discrimination in the application of the eligibility criteria

57 Of the two different ‘treatments’ of the young man we identified above (paragraph 38), we now consider the second: was the actual effect of the operation of the Board’s eligibility criteria less favourable treatment of the young man, on the ground of his race, than it was of students not of his race in the same or materially similar circumstances?

58 The circumstances in which the eligibility criteria operated on the young man were that he enrolled in an HSC language subject for which he had to undertake a Background Speakers course unless he could show he was eligible for a Continuers course. The eligibility criteria have no operation in relation to languages for which there is not both a Background Speakers course and a Continuers course. People in the same or materially similar circumstances are therefore students who, in 2005, enrolled in any of Chinese, Japanese, Korean, Indonesian or Malay, many of whom are not Chinese.

59 The applicant complains that the Board “disqualif[ied] my son to undertake Chinese Continuers course”. That is certainly the case; the Board did make that decision, initially through its delegate, the school, and then itself, after reviewing the decision. While the applicant contends that that the process for making decision was misinformed and unfair, and the decision itself is wrong, the only question we can answer is whether the decision was discriminatory.

60 Again, the correct approach is to ask why the Board ‘disqualified her son to undertake Chinese Continuers course’?; ‘why did the Board do this?’. The applicant says that it was “on the basis of his ethnic background”. The Board says that it was on the basis of an assessment they made of his previously derived knowledge of the language.

61 The evidence clearly establishes the Board’s position. We are satisfied that streaming of a student into a Background Speakers course was (and is) not done on the ground of the student’s race. It was (and is) done on the ground of the degree to which the student had exposure to the particular language. All students, regardless of their race, were (and are) treated in the same way in the same circumstances.

62 Whether a person has had that defined degree of exposure to a language is a question of fact that is assessed by the Board without regard to the person’s race. Although the applicant strongly disputes the correctness of the Board’s decision on that question, but that is a different question from whether race is a ground for the decision. Examples were given by Ms Robertson in her evidence to illustrate how the operation of the eligibility criteria is neutral as to the student’s race.

63 Consider a student who was born in Australia of white, Anglo-Australian parents – who is not of ‘Chinese’ race for purposes of the Anti-Discrimination Act – who spent his early years in living China with his family as ex-patriates for work reasons. If the student had been exposed to the Chinese language in a way described by one or the other of the ‘eligibility’ criteria – having attended Chinese schools for say three years – then, when enrolling in the Chinese language for the HSC, they will be considered to have a background in that language. They will therefore be ineligible for the Continuers course and will be required to enrol in the Background Speakers course. Although of a different race they are treated, in the same circumstances, in the same way as the young man in this matter has been treated.

64 It is clearly the case that all students who enrol in Chinese (or in Japanese, Korean, Indonesian or Malay) must enrol in the Background Speakers course unless they do not have what the Board calls a ‘background’ in that language. They have a background in that language if they do not fall within one or the other of the ‘eligibility’ criteria for the Continuers course. This will be so regardless of their race.

65 It may be more likely that a person whose national origin is the same as that of the particular language will not fall within one or the other of the ‘eligibility’ criteria for the Continuers course, but that raises an argument in indirect discrimination. We make here the same observation we made above regarding the unfairness, in the circumstances this matter, of inquiring into whether the conduct complained of could be indirect discrimination. We are bound to not inquire into this dimension of the conduct complained of. We note that, in any event, the evidence indicates that the Board may well be able to establish that the eligibility criteria are reasonable in circumstances where the HSC is intended to be a ‘level playing field’, and students who have the defined degree of exposure to certain languages have a distinct advantages over students who do not.

66 We are satisfied that the ground on which the young man was refused access to the Continuers course in Chinese, and was required to undertake the Background Speakers course, is his language background as that term is understood and used by the Board, that is, the ground for the Board’s treatment of the young man is the extent to which he (is believed by the Board to have) had exposure to Chinese outside formal education. Whether the Board’s assessment of the extent of his exposure to Chinese outside formal education is a fair or accurate one is not for us to say, but clearly the applicant believes the Board’s decision was wrong.

Use of the term ‘language background’

67 The terminology that the Board uses does, in our view, add to the misperception that a student’s race becomes relevant somewhere in the process of deciding who is and who is not eligible for Continuers course. Reference to ‘the language background’ of a person is usually, in our experience, a reference to the language that is a characteristic of the person’s national origin. In this commonly understood sense, the ‘language background’ of an Australian who was born and raised for a period in China would be Chinese. That language background is a characteristic of the person’s race for purposes of the Anti-Discrimination Act, and so any apparent reliance on it in a decision-making process will suggest discriminatory conduct.

68 In the manner in which it interpreted the 2002 statement of the eligibility criteria, the Board was alert to people having a ‘background’ in a language. The Board uses the term ‘language background’ in its 2006 restatement of the eligibility criteria for a Continuers course. The very title of the course – Background Speakers – carries with it, in our view, a popularly understood implication that reference is being made to people for whom the language is a characteristic of their national origin.

69 The evidence clearly establishes that the Board does not mean to convey this implication. Rather, the Board’s use of the terms ‘background speaker’ and ‘language background’ is intended to convey what we suggest is more accurately described as ‘having had a particular or defined degree of exposure to a language’. The Board might consider addressing this possible confusion.

Findings and order

70 We find that the Board of Studies’ treatment of the applicant’s son was not on the ground, even in part, of his race.

71 Accordingly, we order that the complaint be dismissed.