WANG AND ACT DEPARTMENT OF EDUCATION, YOUTH & FAMILY SERVICES
[2005] ACTDT 4
•14 September 2005
AUSTRALIAN CAPITAL TERRITORY
DISCRIMINATION TRIBUNAL
CITATION:WANG AND ACT DEPARTMENT OF EDUCATION, YOUTH & FAMILY SERVICES [2005] ACTDT 4 (14 SEPTEMBER 2005)
DT03/309
Catchwords: Discrimination in the area of the provision of services – race and status as a parent or carer as relevant attributes – complainant not allocated boarder under homestay program for international students – whether respondent provided “services” to the complainant – causal connection between respondent’s treatment of complainant and relevant attributes.
Discrimination Act 1991, ss 4A, 7, 8, 20, 72, 87, 91, 102
Education Services for Overseas Students Act 2000 (Cth)
Sex Discrimination Act 1975 (UK), s 29
Briginshaw v Briginshaw (1938) 60 CLR 336
Coburn v Human Rights Commission [1994] 3 NZLR 323
De Domenico v Marshall (unreported) [1999] ACTSC 1 (3 February 1999)
De Domenico v Marshall (1999) 94 FCR 97
Edgley v Federal Capital Press of Australia Pty Ltd [1999] ACTSC 95 (1 October 1999)
IW v The City of Perth (1997) 191 CLR 1
R v Entry Clearance Officer Ex p. Amin [1983] 2 AC 818
Waters v Public Transport Commission (1991) 173 CLR 349
Tribunal:Mr M H Peedom, Deputy President
Date:14 September 2005
AUSTRALIAN CAPITAL TERRITORY )
DISCRIMINATION TRIBUNAL ) NO: DT03/309
RE: YAOXIANG WANG
ComplainantAND: ACT DEPARTMENT OF
EDUCATION, YOUTH &
FAMILY SERVICES
Respondent
ORDER
Tribunal : Mr M H Peedom, Deputy President
Date : 14 September 2005
Order :
The Tribunal is not satisfied, after completing a hearing, that the complainant’s complaints have been substantiated.
THE TRIBUNAL ORDERS, pursuant to section 102(2)(a)(ii) of the Discrimination Act 1991, that the complaints be dismissed.
………………………………
Deputy President
AUSTRALIAN CAPITAL TERRITORY )
DISCRIMINATION TRIBUNAL ) NO: DT03/309
RE: YAOXIANG WANG
ComplainantAND: ACT DEPARTMENT OF
EDUCATION, YOUTH &
FAMILY SERVICES
Respondent
REASONS
14 September 2005 Mr M H Peedom, Deputy President
The complaint
The complainant in this case has alleged that he was discriminated against by the respondent in the areas of accommodation, in the provision of goods, services or facilities and in the area of employment on the grounds of his race and his status as a parent or carer.
2. The complaint which was made to the Discrimination Commissioner on 27 February 2003 arose, in part, from an application made by the complainant and his wife to the Department of Education, Youth and Family Services (“the department”) on 16 March 2001 to host students who had enrolled in an international fee paying students program as boarders in his home. The application did not result in any student being allocated to the complainant. He contends that the failure of the department to allocate any student to him involved unlawful discrimination under the Discrimination Act 1991 (“the Discrimination Act”).
3. In his complaint the complainant also alleged that he had been subjected to unlawful discrimination by the department by its delay in recognising his academic qualifications, in appointing him permanently to a teaching position, in rejecting his request to be transferred to a particular school and in the terms of his appointment to another school.
4. Following consideration of the matter the Discrimination Commissioner referred the complaint, at the request of the complainant, to the Tribunal pursuant to section 87 of the Discrimination Act.
5. At the hearing of the matter the complainant informed the Tribunal that he was pursuing a remedy in respect of the matters referred to in paragraph 3 above by other means and did not wish the Tribunal to deal with them in these proceedings. That part of the complaint should, in that event, be dismissed pursuant to section 102(2)(a)(ii) as not having been substantiated.
The homestay program
6. The department, through its International Education Unit (“IEU”), conducts a program which offers schooling for international students (“the international student program”). The international student program is registered under the Education Services for Overseas Students Act 2000 (Cth) which regulates the provision of education services for overseas students. It is a requirement of that Act that the department provide the Commonwealth Department of Education, Training and Youth Affairs with information about students accepted by it into the international student program, that it notify students of any breach of conditions which apply to their student visa and keep certain records in relation to them.
7. It was made a condition of the issue of a student visa that the student enrolled in the international student program conducted by the IEU provide the IEU with details of his/her address and any change of address and that failure to do so may lead to cancellation of the visa. It was also a condition that students under 18 years not change accommodation without the approval of the IEU.
8. A document prepared by the department and entitled “Government Schools in Canberra” identified the provision of support services as part of the international school program which included help in finding accommodation and also arranging for guardianship if the student concerned was under 18 years of age. It recommended “homestay” for enrolled students. This was described as living in the home of an Australian family and paying board and was said to be a way of experiencing Australian culture and to improve English language skills.
9. In order to ensure the provision of a sufficient number of homes for students wishing to participate in the homestay program, the IEU advertised in a variety of government and local media outlets for prospective homestay host families to apply to participate in it.
10. The advertisements contained details of the rates for board payable to the homestay host family and a contact address from which to obtain information about the department’s selection processes.
11. Students enrolling in the international student program were required to complete an application form which included details of the accommodation in Canberra which they had arranged themselves or, alternatively, to indicate whether they required accommodation from the department’s accommodation register which was kept for the purpose of the homestay program. A fee of $150 was payable to the department for homestay placement.
12. At the time of the events complained of the department had guidelines for families hosting students involved in the international student program. The guidelines included the following provisions:
1.As students come to Australia to learn English it is essential that only English is spoken in the home.
2.It is the department’s policy and practice that male and female students are not placed in the same homestay. Exceptions will be made for siblings and other related students (eg cousins) if requested by students parents.
……….
8.A stable living environment with an Australian family is a very important part in helping the student to adapt to Australian society and improve their English.
……….
11.It is necessary to supply to each student with:
. a single bedroom, with bed, bed linen and blankets;
. a desk/study area with chair;
. adequate light for studying;
. adequate heating in the student’s room; and
. a cupboard suitable for storing clothes.
13. On 16 March 2001 the complainant and his wife completed a homestay application form and submitted it to the department. In the form they provided personal information about themselves and their three children. The complainant was described as a college teacher and his wife, Ms Shefang Bian, as a former high school teacher. In a part of the application form designed to provide a profile of the complainant’s family, English and Chinese were identified as the main languages spoken in the home and the home was described as containing 5 bedrooms and as being 500m distant from the nearest local high school and 7.5km distant from the nearest college. The application form identified a preference for hosting two girls of similar Asian background.
14. On 5 April 2001 an officer of the department visited the complainant’s home and prepared a report as follows:
New house, no carpet although said it would be going in on Easter holidays. Yaoxiang is an ESL teacher.
Caring family (I think they might speak Chinese at home)
Shefang cooks many Asian meals.
The hearing
15. At the hearing of the appeal the complainant represented himself. The respondent was, with the consent of the Tribunal, represented by Dr D Jarvis, a legal practitioner.
16. With the consent of the parties, the Tribunal admitted in evidence the material compiled by the Discrimination Commissioner for the purpose of investigating the complaint and which was provided to the Tribunal on referral of the matter to it pursuant to section 87 of the Discrimination Act (“the T documents”).
17. Evidence was given by the complainant and, on his behalf, by his wife, Ms Shefang Bian.
18. Evidence was given on behalf of the respondent by Ms T Rood, Ms S Woolacott and Mr N H Redmayne.
The T documents
19. The following documents and the details of some of their contents were amongst those included in the T documents.
20. In a letter dated 14 May 2002 the complainant wrote to the Chief Executive of the department complaining that he had not been allocated any homestay students. He said that a male student had requested that he live at the complainant’s home following the theft of some of his belongings from the house where he was boarding. He had granted his request. Another student who had been treated badly in his homestay residence had also come to live in his house. He said that many homestay students were being treated badly and that the IEU was not dealing with their complaints in a professional and efficient manner.
21. He said that in the 2001 a female student had asked to come and live in his home and the department had rejected her request stating that her visa would be cancelled and that she would be deported to China and the complainant would lose his job if she moved to his house. He said that the IEU had spread rumour among the students that he had enticed students to his home in exchange for giving them higher scores at their school. His requests to speak to Ms Woolacott, an officer of the department, about the matter had been ignored. He complained in the letter about the rude manner in which his wife had been treated when she had endeavoured to speak to Ms Woolacott about the failure of the IEU to allocate them homestay students.
22. The complainant received a reply to his letter dated 14 May 2002 from the Executive Director, School Education dated 13 September 2002. The letter forwarded the complainant a copy of the guidelines used by the IEU to identify suitable homestay families and in placing international students with them. The letter noted that two male students had moved into the complainant’s house without notifying the IEU contrary to a requirement of the Department of Immigration, Multicultural and Indigenous Affairs, that the IEU be informed of any change of their residential address. The letter stated that another concern of the department was that it was the practice not to place male and female students in the same homestay accommodation in order to ensure personal privacy and to circumvent any inappropriate behaviour which may inadvertently occur when young males and females were living together in the same home. In relation to the placement of students in the homes of teachers, the letter stated that it was the department’s experience that although this could be advantageous for international students it was not desirable for students to live in the homes of teachers when both the student and teacher attended the same school. This could involve a conflict of interest. The letter noted that the principal of Copland College (at which college the complainant was a teacher) had spoken to the complainant about this issue. The letter asked that the complainant provide details of the arrangements, including evidence of parental permission, that had been made with the parents of the students who had been accommodated in the complainant’s home.
23. In a reply to the department dated 28 September 2002 the complainant stated that the guidelines that had been provided to him were new and did not apply at the date of his application. He said that the two male students who had moved into his house were both aged 19 years when they moved in. The students, he said, had informed the international student co-ordinator at their college of the change of address. They should take the blame for not notifying the IEU. He asked why it was appropriate for other teachers at schools who had hosted students to be permitted to do so when he was denied permission to do so. He queried the need for the IEU to be now provided with details of the permission of the parents of the two male students to move into his house because permission had been orally given by them to the IEU.
24. In response to a request from the Discrimination Commissioner that the department respond to the complainant’s complaint, the Director, Human Resources, stated in a letter dated 3 April 2003 that homestay placements were determined using a number of criteria including choice of school, location of homestay and student gender preference identified in the homestay application form. The applicant was not given high priority for providing accommodation because of the location, condition of his home on inspection and his indicated preference for female students. The majority of homestay applicants indicated that they wished to host female students thus giving those who wanted to host male students more chance of being allocated students. The letter stated that when the complainant’s application was lodged during the first semester of 2001 all students had already been placed and the IEU was not in need of further homestay accommodation at that particular time.
25. The complainant had been advised by the Director (School Operations) that there was no problem with his family hosting students and they would be considered if there were students requiring accommodation in his area in the future and he should contact the IEU directly. But it was noted that, at the time of the home inspection, there were no floor coverings in the complainant’s home but that the family had advised that it was to be laid during the Easter holidays.
26. In relation to a requirement in the department’s current guidelines that it was essential that only English was spoken in the home, the Director accepted that the requirement was inappropriate and would be amended to reflect the practice of the department which included placing students in homes where English was the main language spoken at home. The requirement for English to be spoken as the main language in the home was to assist the students learn English sufficiently to be able to achieve academically. Teachers had frequently commented that students who did not live in this environment noticeably made a lack of progress in English.
27. The response noted that the proposal that a female student live in the complainant’s home would not have safeguarded the welfare of that student as there were already two male students living in the house and the department did not place students of different gender in the same house unless there was a considerable age difference.
28. The response stated that the department had become aware in September 2001 that two male international students had moved into the complainant’s home, some months after this had apparently happened, and the IEU was not formally notified of the arrangement until March 2002. The failure to notify the IEU of the changed arrangements could have resulted in the cancellation of the students’ visas.
29. The letter also expressed concern that the complainant had taught three students who had lived in his home as there could be a conflict of interests involved.
30. The T documents also contained a statement dated 14 April 2003 signed by Ms M Hargreaves, Director, School Operations, International Education and Community Partnerships. She said that at a meeting with the complainant and his wife on 6 June 2002 she had not said that homestay families should be Australian families. She had said that it was highly desirable that international students be placed in homestay accommodation where English was the spoken language. Learning English was the primary reason for international students coming to Australia for their education.
Evidence of the complainant
31. The complainant was, at the time of the events complained of, a teacher at Copland College. One of the subjects he taught was English as a second language.
32. He said that the department had approved as homestay hosts teachers in colleges who were Australian and had much worse locations and their home conditions were much worse than his. They had been approved to have as many students and either male or female as they wished. He said that there was a bus stop just across the road from his house. Other students with homestay families had to walk between 5 and 10 minutes to catch a bus to school. Another teacher at Copland College had applied for a homestay student later than he did and she was immediately given not only one but, he thought, two or three students. The student attended the school at which the teacher was employed. The complainant said that the department had approved as homestay families people from Italian, Philippino, Vietnamese and other backgrounds who were not native speakers of English.
33. He met with Ms Narelle Hargreaves, the director of schools, in around May 2002. At that meeting she had told him that homestay families should be Australian.
34. He produced in evidence a letter from the department dated 23 March 2004 which advised that an audit of the homestay register indicated that a police check was not attached to his file. He was requested to have all members of his family over the age of 18 to complete a form and return it to the IEU. He also produced a letter dated 3 September 2004 from the department confirming that his home had been visited and had now been placed on the homestay register.
35. Between 2001 and 2005 the complainant said that he had spoken to between 200 and 250 students participating in the program and they had indicated to him that their motive in participating in the program was to enable them to get an Australian university degree.
36. He produced in evidence a floor plan of his house. It showed a house comprising a master bedroom with ensuite bathroom, three other bedrooms, a study, a dining/living room, a kitchen, a family/meals room, a rumpus room and a double garage.
37. He produced in evidence a statement of Junwin (“Ci Ci”) Jiang dated 11 April 2003. Ms Jiang said that she was a student at Copland College. She had asked the complainant if she could move into his home as she was not happy with her then homestay arrangement. She said that she had never been invited by the complainant to stay at his home.
38. In cross-examination the complainant said that his two daughters, aged 6 and 9 at the date of his homestay application, slept in the room shown as bedroom 2 on the house floor plan and his son, then aged 3, slept in another bedroom, although he sometimes slept in his parents’ bedroom. He said that, if allocated two female homestay students in accordance with the preference he had indicated on his application, one of them would sleep in one of the bedrooms indicated as such on the floor plan and the other in the room shown as a study.
39. He agreed that in May 2001 a student had asked if he could live in his house and he had agreed. He had been approached by another student in June 2001 and he agreed to him moving into his house also. The two students were aged over 18 years and had not been referred to him by the IEU. It was a private arrangement. One of the students had stayed until July 2002 but the other had left sometime earlier. He said it would have been possible for him to have hosted other students under the homestay program in addition to the two male students because his son could sleep in the complainant’s bedroom, his two girls could stay in one bedroom and there were three rooms which could be used as bedrooms plus the rumpus room at the back of the house which could be used as an additional bedroom. He said that as some families used garages as bedrooms, he could use the rumpus room as an extra bedroom. He agreed with the suggestion put to him that, if the department had a choice between the arrangement which he had sought for his house and placing a student in a house where there was a spare bedroom as distinct from a rumpus room or study that would have to be used for a bedroom, the proper choice would be the former.
40. In relation to the complainant’s assertion that he had been told by Ms Hargreaves that homestay families should be Australian families and that he had complained about this statement to the union, he agreed that in the letter of complaint that he had written to the union he had made no reference to this conversation. He said, however, that he had mentioned it to a union organiser.
Evidence of Shefang Bian
41. Ms Bian said that at the time her family home had been first inspected by Ms Rood and another person from the department she had advised them that she and her husband were going to put carpets in the house in the school holidays at Easter time. They had told her that if she wanted to have two students they might come from different countries. They asked her what gender she preferred and she said female but if they did not have female students male students would be fine. She had pointed out that there was a golf course across the road, tennis courts were only about 200m from the house, there was a country club nearby with a swimming pool and a gymnasium and she had told them that she was good at cooking. Ms Rood had not said anything about the carpet at the time. At the school holiday time after carpet had been laid in the house her husband had telephoned the department. He asked when they would have homestay students and they said they were not sure at that stage. She had telephoned several times after that and in January 2002 she had spoken to Ms Woolacott. She was a bit upset at the time and she asked why they still had not located any students with them. Ms Wollacott’s response had been very rude. She had said: “You didn’t get any homestay students. That means that you will never get any”. She had then hung up the phone. She had telephoned to speak to Ms Woolacott again but had been told that she was not available. She left a message for Ms Woolacott to call her but she had not done so.
42. She and her husband had taken two male students as boarders because their living conditions had been very poor. They had not been properly fed and had been asked to do the gardening in the house where they lived.
43. Ms Jiang had been living in the home of an officer of the department and she asked if the complainant and his wife would take her in as a homestay student. She had spoken to Ms Jiang’s mother and explained that the house she was living in was too far away from the school, that there was a teenage boy having parties at the house and she was not being given proper food. Ms Jiang’s mother had said that it would be good if she could move in with them. She had then been informed that the IEU would not approve her moving into the house and that her visa would be cancelled if she did move.
44. In cross-examination Ms Bian denied that she had yelled at Ms Woolacott when she spoke to her on the phone.
Evidence of Tracy Rood
45. In a statement dated 29 March 2005 which was admitted in evidence on behalf of the respondent, Ms Rood, who was the IEU homestay co-ordinator at the time of the complainant’s homestay application, said that her duties had included sending and receiving homestay applications for homestay parents, assessing the applications for entry onto a register and maintaining the register of homestay parents.
46. Ms Rood said that the process for the approval and registration of homestay parents consisted of:
- A telephone inquiry from homestay parents requesting information about the scheme;
- Applicants were sent an application form and advised of the nature of the process including a requirement for a house visit;
- Contact with the homestay parent to arrange a home inspection;
- A visit by a homestay co-ordinator to assess the applicant’s house against a variety of requirements as outlined in the homestay guidelines and advice provided to prospective parents of the kinds of cultural challenges likely to arise during the course of the homestay;
- A security assessment of all members of the homestay household above the age of 18 years;
- The entry on the register of details of names and addresses of prospective parents and their children and any other issues;
- If a family was not approved their names would be entered on the register with a comment to that effect but it was not the practice to notify applicants that they had not been approved;
47. Ms Rood said that once a prospective parent’s name was placed on the register it was a matter of waiting for a compatible student. This involved an assessment of language needs, consideration of issues such as the number of children in the house and their gender. The register assisted to identify a family in an appropriate location who had other children of an appropriate age. Once a prospective parent was matched by the IEU with a student, the student was sent a short profile of the proposed host family. It was a matter for the family of the student to determine whether they wished to stay with the homestay applicant family whose details had been forwarded by the IEU.
48. She said that, in her experience, parents of students were reluctant to have their children stay with families for whom English was not the sole, or at least primary, language spoken in the house. In about 95% of cases where Chinese students were offered a homestay with people with Chinese last names, the parents of the students would request that the child be moved to another house. In such cases, she would explain to the parents that the prospective foster parents spoke English at home and as to the same fluency as any other parents in Australia.
49. Ms Rood said that she and a colleague had undertaken the inspection of the complainant’s home. The house was obviously new and there was no landscaping. It appeared that some tiles in the entrance hall had been glued to the floor surface but there was no grouting. She asked to see the room for the prospective student and was shown a room with a concrete floor and a light fabric hanging over the window. There was a bed in the room. She considered that the room did not meet the requirements of the homestay guidelines as it did not have floor coverings and did not have appropriate window coverings and because the tiling of the floor surface had not been completed in some parts of the house. She said that she spoke to the complainant’s wife and explained to her that it would be impossible to host a student in the house until it was finished. She referred in particular to the need for floor coverings. The complainant’s wife had stated that the carpet would be laid in the Easter holidays. She had attempted to communicate with a small boy who she assumed to be the complainant’s son and apparently aged two and a half to three years. The boy did not respond to her and the complainant’s wife spoke to the boy in what she assumed was the Chinese language. She recalled that the complainant’s wife confirmed that the family spoke both English and Chinese at the home.
50. Ms Rood said that when she returned to her office she entered the name of the complainant and his wife in the register of homestay families. No other comment was made on the register. It did not state that the complainant was “approved”, nor did it state that he was “not approved”. She said that the fact that the complainant’s home was not completed would then have been the most determinative factor in him not being allocated a homestay student although she said that the fact that Chinese may have been spoken at the home would also have been considered when deciding whether the complainant matched a homestay student’s requirements.
51. In evidence given at the hearing, Ms Rood said that when prospective homestay parents were sent a form of application for completion they were also sent a form in which to record personal information to enable a police check to be undertaken. This form was then submitted to the Australian Federal Police. They ordinarily took from 10 days to 3 months to respond to the request that a police check be provided. She also said that it was ordinarily the practice, especially in the case of Chinese students, for the application form to be sent to an agent acting on behalf of the student.
52. Ms Rood said that in determining whether to match a student with a family, apart from the matters referred to in her statement, the IEU would also consider the sex of the student and that of any children living in the home, the student’s religion and the possibility of pets in the home adversely affecting any identified allergies of the student and whether there were any particular dietary requirements. If a student indicated that he or she had a problem with the matched homestay family the department would make another offer having regard to the problem that had been identified. She said that in circumstances where a home inspection had revealed that there was a problem with the accommodation the family involved would ordinarily make contact with her following completion of any renovation work that was required. She said that there were many families on the register and there was no need for the department to follow up with the complainant to ascertain if his home was available for a homestay student.
53. Ms Rood agreed that, in the letter from the department dated 13 September 2002, no reference was made to the condition of the complainant’s house. She rejected the suggestion put to her by the complainant that applicants for the homestay program were not given a choice of family.
54. She accepted that a number of students were allocated to homes during 2001 who were more distant from Copland College than the complainant’s home. She said that this happened because the students might have indicated a preference for other criteria that were not satisfied by the complainant’s application.
55. She accepted that the fact that the complainant had indicated that Chinese may be spoken in his home might have been seen as a disqualifying factor by some students.
56. In further explanation of the homestay register, Ms Rood said that there were, in fact, two registers kept by the IEU. One was a current register on which there were recorded the names of families who had students allocated to them under the homestay program. The other register recorded the details of families who had indicated their availability to host a student but had not yet been allocated a student. The registers recorded details of the host family name, address, telephone number and details of when the police records check had been sent and received. Other information about the homestay applicants and their home was kept in a separate folder. The register was used to identify families in close location to the school to be attended by the student. The folder would then be consulted to consider the suitability of the host family to accommodate the student.
57. The entry in respect of the applicant was contained in the current register during 2001. This was because the applicant already had an international student living in his home. That student had later completed his Year 12 certificate and had left the applicant’s home. The complainant had then been placed on the available register. She was unable to say when that change had occurred. The changes to the registers would have occurred simultaneously when the IEU was informed that the student had left the complainant’s home.
58. In response to a suggestion by the complainant that Ms Jiang had requested to be placed in the complainant’s home, Ms Rood said that the IEU did not put teenage girls in a home where there were teenage boys.
59. Ms Rood’s attention was drawn to the fact that a number of documents attached to her statement had indicated that, in some students had expressed a preference for a “native English speaker”. She said that in such a case that would have been one of the criteria that would have been applied in relation to the complainant’s application.
60. In re-examination Ms Rood said that on 5 April 2001, following the inspection of the complainant’s house, when she returned to the office she would have placed the complainant’s name on the available register. When the IEU was advised that the complainant had another student living with him, he would have been transferred to the current register. After that student left his house, he would have again been transferred to the available register.
61. Ms Rood estimated that in 2001 there were between 80 to 120 families on the available register and about the same number or more in 2002 after all students had been allocated to a home. To the extent to which not speaking English was seen as a disqualifying factor, she had meant by this that it was seen as a disqualifying by the student or his or her family.
Evidence of Ms Woolacott
62. In a statement dated 29 March 2005 Ms S Woolacott, the Manager of the IEU, said that the IEU could be approached to find homestays for students either by their parents or, more often, by an agent operating within the student’s home country. The agent would usually undertake to organise the students’ fees and transportation to Australia and the IEU would provide the agent with a profile of a suitable homestay family. In the case of Chinese students most placements were dealt with in co-operation with a Chinese agency called “America and Australia International Education and Multi-culture Centre”. That agency invited families to identify the characteristics they would like a homestay family to have. The vast majority of parents requested that their child be placed with a “native English speaker” and an “Aussie family”. It was her experience that most requests were for a family where no Chinese was spoken. She said that, nonetheless, the IEU had placed many families who were not native English speakers on the register along with families with a variety of ethnic backgrounds. The requirement in all cases was that the family spoke English at home. On occasions when a student or student’s parents had objected to a homestay placement on the basis of nationality alone, she had responded by explaining that Australia was a multicultural country and that host families could come from many ethnic backgrounds. Nevertheless, she would endeavour to move a student into accommodation that accorded with the wishes of the student or the student’s parents.
63. Ms Woolacott said that 75% of international students participating in the homestay program had gone on to university studies in Australia and nearly 100% of them would undertake some form of tertiary study. To be eligible to enrol in a tertiary institution the student was required to provide evidence of English language ability. International students who had completed senior secondary studies in Australia would usually be exempt from that requirement when applying for a position in an Australian tertiary institution. The Australian National University was currently working with the department, however, to introduce a mandatory English language requirement for admission to that university by any international student. That university was concerned that many international students did not have sufficient English language ability to successfully complete their studies. The placement of homestay students in an environment that was complementary to the development of English language skills was, therefore, essential to the success of the international student program
64. It was Ms Woolacott’s experience that students who completed homestay with an English speaking family did significantly better with their studies than students who moved into accommodation with other students who spoke their native language. She produced a number of school reports that indicated that many teachers were of a similar view.
65. Ms Woolacott said that all homestay applicants for the first semester of 2001 had been placed at the time of receipt of the complainant’s application. Despite that fact, an assessment of his house had been carried out by Ms Rood.
66. In September 2001, Ms Woolacott had become aware that the complainant was hosting two male international students in his house. Her inquiries revealed that one student had moved in with the complainant in May 2001 and the other student moved in in June 2001. Both stayed until they had finished Copland College in June 2002. She said that neither the complainant nor the students had advised the IEU of this arrangement and she had been advised of the arrangement by Copland College in March 2002. She said that it was unlikely that the IEU would have suggested the complainant’s family to a student given that his house was already occupied by the complainant and his wife, three family children and two other host students. The IEU would also not have suggested the placement of a female student with two male students.
67. In a further statement dated 16 May 2005 Ms Woolacott said that in 2001 there were 48 students who had applied to be allocated homestay accommodation. There were 33 in 2002. She said that it was the practice of IEU in 2001 and 2002, when forwarding profiles of potential homestay families to overseas students or their agents, to give priority to existing homestay families who were “losing” a student who would have an expected vacancy. This was done on the basis that families with a proven track record of hosting students were in the experience of the IEU likely to have a trouble-free successful placement. In 2001 and 2002 virtually all new students were absorbed by families losing a student.
68. In evidence given at the hearing Ms Woolacott said that in 2001 and 2002 the percentage of female students seeking to enter the international student program was approximately 25-26%.
69. Ms Woolacott said that she received a telephone call from a person who she understood to be the complainant’s wife in early 2002. The caller had been very agitated and accused her of ruining her husband’s reputation in Canberra and China. She was screaming down the phone. Ms Woolacott had said to her “we cannot continue this conversation. I am going to ask everybody in the unit to note that I am going to end this conversation and I am going to put the phone down”. She then terminated the telephone call. She denied that she had defamed the complainant’s reputation in Canberra or China. She denied that she had said that Ms Jiang’s visa would be cancelled or that the complainant would lose his job.
70. She had asked an officer of the IEU to telephone Ms Jiang’s mother to ascertain whether she was aware that her daughter intended to change her homestay location and that the IEU was concerned about her moving into a house where there were two male students living. Ms Jiang’s mother had said that she was not aware of any intention of her daughter to change her homestay. Ms Woolacott denied that she had spread any rumours among students that the complainant enticed students to his home in exchange for giving them higher scores than they deserved.
Mr Redmayne
71. Mr Redmayne gave evidence that he had attended the home of the complainant in September 2004. He denied that he had ever made a comment to the effect that the department badly needed homestay parents in the area of the complainant’s house.
The Discrimination Act
72. Provision making unlawful discrimination of the kind complained of by the complainant in this case is contained in section 20 of the Discrimination Act which provides:
20 Goods, services and facilities
It is unlawful for a person (the provider) who (whether for payment or not) provides goods or services, or makes facilities available, to discriminate against another person¾
(a)by refusing to provide those goods or services or make those facilities available to the other person; or
(b)in the terms or conditions on which the provider provides those goods or services or makes those facilities available to the other person; or
(c)in the way in which the provider provides those goods or services or makes those facilities available to the other person.
73. The word “services” is defined in the Dictionary of the Discrimination Act as:
services includes—
(a)services relating to banking, insurance or the provision of grants, loans, credit or finance; and
(b)services relating to entertainment, recreation or refreshment; and
(c)services relating to transport or travel; and
(d)services of any profession, trade or business; and
(e)services provided by a government, government authority, local government body or corporation in which a government has a controlling interest; and
(f)the provision of scholarships, prizes or awards.
74. The meaning of “discriminate”, relevantly to the circumstances of this case is set out in section 8(1)(a) of the Discrimination Act in the following terms:
8 What constitutes discrimination
(1) For this Act, a person discriminates against another person if¾
(a)the person treats or proposes to treat the other person unfavourably because the other person has an attribute referred to in section 7;
75. The attributes specified in section 7 of the Discrimination Act which the complainant claimed were applicable to him were those referred to in section 7(1)(e), status as a parent or carer, and section 7(1)(h), race.
76. The word “race” is defined in the Dictionary as:
race includes—
(a) colour, descent, ethnic and national origin and nationality; and
(b)any 2 or more distinct races that are collectively referred to or known as a race.
77. Reference should also be made to section 4A of the Discrimination Act which provides:
4AMeaning of doing an act
(1)In this Act:
doing an act includes failing to do the act.
(2)In this Act, a reference to doing an act because of a particular matter includes a reference to doing an act because of 2 or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason for doing the act.
Reasons for decision
78. It was not disputed by the respondent that the complainant had the attributes referred to in section 7(1)(e) and section 7(1)(h).
79. A submission was made on behalf of the respondent, however, that section 20 of the Discrimination Act was inapplicable to the circumstances of this case because the respondent was not involved in the provision of services to the complainant. Alternatively, even if it was, the evidence before the Tribunal did not establish that there was any causal connection between any treatment complained of by the complainant and his acknowledged attributes.
80. It is convenient to deal first with the submission made on behalf of the respondent that the respondent was not involved in the provision of “services” within the meaning of that word in section 20.
81. To the extent to which the respondent provided a service, it was submitted, the relevant service was the identification of a registered family willing to provide accommodation to an overseas student and the provision of the details of that family to the student for approval in exchange for a fee payable to the respondent. By their terms, each paragraph of section 20(1) only applies to services provided to the person who is the subject of the discriminatory treatment. The service provided by the respondent was provided to the overseas student and not to the prospective host family.
82. The definition of the word “services” in the Dictionary of the Discrimination Act does not assist greatly in determining the scope of that word for the purpose of this case beyond making it clear that it extends to services provided by government.
83. The term “services” has a wide meaning. The Macquarie Dictionary relevantly defines it to include “an act of helpful activity”; “the providing or a provider of some accommodation required by the public, as messengers, telegraphs, telephones, or conveyance”; “the organised system of apparatus, appliances, employees, etc, for supplying some accommodation required by the public”; “the supplying or the supplier of water, gas, or the like to the public”; and “the duty or work of public servants”.
84. It is a rule of interpretation of statutes that beneficial and remedial legislation, such as the Discrimination Act, is to be given a liberal construction (see Coburn v Human Rights Commission [1994] 3 NZLR 323). Nevertheless, the task of interpretation remains one of statutory construction and the Tribunal is not at liberty to give the word “services” a construction that is unreasonable or unnatural. Subject to that proviso, if the word “services”, read in the context of the Act and its object, is capable of applying to an activity, the Tribunal should hold that that activity constitutes “services” for the purpose of the Act (see IW v The City of Perth (1997) 191 CLR 1 at page 12).
85. In IW v The City of Perth & Others, it was held by the High Court of Australia that a council did not provide a service of giving planning approvals as the term “services” was not capable of including a refusal to exercise a statutory discretion. In refusing approval to a planning application, the council had not, therefore, refused to provide a service.
86. In their reasons for decision, Brennan CJ and McHugh J observed that services by a council might involve the collection of garbage and the supply of water, gas and electricity. The provision of libraries, parks and sporting facilities might also constitute the provision of services. They referred to decisions of other courts which held that the assessment of taxes, determining whether a taxpayer was entitled to a deduction for a dependent child and in disseminating and giving advice to taxpayers to enable them to claim tax relief involved the provision of a service. They also referred with apparent approval to R v Entry Clearance Officer Ex p. Amin [1983] 2 AC 818 where the House of Lords held that a clearance officer who vetted aspiring immigrants to the United Kingdom was not providing a facility or service within the meaning of section 29(1) of the Sex Discrimination Act 1975 (UK). It held that rather than performing a service, the officer was performing his duty of controlling them.
87. In determining whether a person has refused to provide a service, imposed terms or conditions in relation to the provision of a service or discriminated against another person in the way in which a service is provided for the purpose of section 20 of the Discrimination Act, it is necessary to identify with precision what service the alleged discriminator provides (see IW v The City of Perth at pages 16-17).
88. In its broadest sense the services which the respondent provides, relevantly to the circumstances of this case, are educational services to overseas students. It is an optional component of those services that the respondent also arranges for the provision of homestay accommodation. In both cases the services are provided by the respondent to the students involved. In the case of homestay accommodation which may be occupied by a student participating in the homestay program, the role of the respondent is confined to attracting interest in the provision by home owners of accommodation to overseas students, vetting the suitability of those interested in providing accommodation to the students and providing information about persons assessed as suitable to the requirements of particular students to those students or their representatives. The role of providing accommodation and any related services is that of the home owner and any relevant service is provided by the home owner to the student participating in the homestay program.
89. The role of the respondent in its involvement in the provision of accommodation to students participating in the homestay program is, in my opinion, more akin to the role performed by the official involved in Amin’s Case, that is to say, it was not providing a service to would-be landlords of overseas students; rather it was performing a role in assisting those students find accommodation appropriate to their requirements while studying in Australia.
90. The respondent was not, therefore, involved in the provision of services to the complainant and section 20 of the Discrimination Act has no application to the respondent in the circumstances of this case.
91. The conclusion which I have reached in relation to the issue of whether the respondent was providing services to the complainant is sufficient to dispose of the complaint. The complaint cannot, in my opinion, for the additional reasons which follow, be substantiated.
92. In proceedings before the Tribunal the allegations of discrimination made by the complainant are required to be proved to a proper standard based upon proper evidentiary material (see De Domenico v Marshall (unreported) [1999] ACTSC 1 (3 February 1999)). It is not necessary that the allegations be proved beyond reasonable doubt but there must be a comfortable degree of satisfaction that they have been proved by evidence which is sufficiently robust to justify the conclusion arrived at rather than inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw (1938) 60 CLR 336).
93. Section 8 of the Discrimination Act also makes it necessary to establish a causative link between the conduct complained of and the adverse consequences for the person making the complaint (see Waters v Public Transport Commission (1991) 173 CLR 349). It is necessary, therefore, to seek out the true basis of the respondent’s conduct insofar as it may be found to constitute unfavourable treatment. It is unnecessary, however, to establish that the conduct complained of was intended or motivated by a discriminatory attitude (Edgley v Federal Capital Press of Australia Pty Ltd [1999] ACTSC 95 (1 October 1999)).
94. The respondent submitted that the focus of the Tribunal’s consideration is required to be upon the matters identified by the complainant in his “complaint”. Support for this submission is to be derived from section 72 of the Discrimination Act, which provides for the making of a complaint and section 87 of the Discrimination Act which provides for the complaint to be referred to the Tribunal and the function of the Tribunal now being exercised pursuant to section 91(1)(b) of the Discrimination Act of hearing the complaint referred to it by the Discrimination Commissioner. (See also De Domenico v Marshall (1999) 94 FCR 97 at 119).
95. In that part of his complaint to the Discrimination Commissioner in which the complainant was asked to specify the events which happened to make him believe he had been discriminated against, he referred to the fact that he had applied to host overseas students but did not get any; pressure instigated by Ms Woolacott on the principal of the college at which the complainant taught because a student had wanted to move into his home; rumours spread by Ms Woolacott that he had enticed students to stay in his home in exchange for giving them higher scores than they deserved; the rude manner in which his wife had been spoken to by Ms Woolacott on the phone; and the delay of 4 months in receiving a reply to his letter of complaint to the Chief Executive of the department.
96. In response to the request contained in the form of complaint completed by him that he explain why he thought the unfair treatment of him occurred because of the attributes he had identified, he said that it had occurred because he was from China and because the respondent did not want him to have the status of guardian of a student who had been staying with an officer of the department and because he was aware of the unprofessional way the department dealt with students.
97. Despite the assertions made by the complainant, there was no evidence presented to the Tribunal capable of supporting a finding that Ms Woolacott had attempted to bring any pressure on the principal of the college at which the complainant taught that was adverse to the complainant’s interests nor that she had spread rumours of the kind complained of.
98. Ms Woolacott and Ms Bian gave different accounts of the telephone conversation to which the complainant referred in his complaint. Having heard the evidence of both, I am not disposed to prefer Ms Bian’s evidence about that matter to the evidence of Ms Woolacott. Irrespective as to which version of it is to be preferred, there is no evidence to justify a finding that the reason for the words said by Ms Bian to have been spoken by Ms Woolacott to Ms Bian was the complainant’s race or his status as a parent. Nor is there any evidence to support a conclusion that the delay in responding to the complainant’s letter, even if regarded as unfavourable treatment of the complainant, was because of those attributes.
99. The fact that the complainant and his wife were not allocated any homestay students is not, by itself, capable of constituting treatment which is unfavourable to the complainant. According to Ms Woolacott’s evidence, at the date of the complainant’s application to become a homestay host family all of the students for the first semester wishing to participate in the homestay program had been allocated to a family. In the absence of contradictory evidence that there were then students awaiting the allocation of a home, the question as to whether the complainant had been treated unfavourably does not arise. Different considerations, which are outlined below, might apply during the allocation of homes to the 33 students who applied to participate in the homestay program during 2002.
100. The statement of Ms Hargreaves contained in the T documents differs from the evidence of the complainant as to the conversation she had with the complainant on 6 June 2002 (see paragraph 30 above). Ordinarily the sworn evidence of the complainant would be preferred to the statement of a witness who was not called to give evidence and who was not cross-examined. I note, however, that the complainant did not refer to that conversation in his written complaint to the union. Further, the suggestion that the respondent discriminated against him because of the inference which he invites the Tribunal to make that he would not be allocated a student because students should only be allocated to “Australian families”, is contradicted by the unchallenged evidence of Ms Woolacott and Ms Rood of the explanations given by them to the families of prospective homestay students that Australia was a multicultural country and that a host family may come from many ethnic backgrounds. It was also contradicted by the complainant’s evidence that students were allocated to families who were not native speakers of English. I am not satisfied that the evidence establishes that the reason for any treatment of the complainant was his race.
101. The guidelines referred to in paragraph 12 above and the evidence of Ms Rood and Ms Woolacott as to the significance of English being spoken in the home of a prospective homestay host family, however, require that consideration to be given as to whether a causal connection existed between a presumed characteristic of the complainant’s race and the fact that he was not allocated a homestay student on account of that requirement.
102. Section 7(2)(b) of the Discrimination Act provides that a reference to a relevant attribute includes a characteristic that people with that attribute are generally presumed to have. If it were the case that the complainant was excluded from participation in the homestay program because of a general presumption by the respondent that people of the complainant’s race would not be capable of adequately assisting overseas students develop their English language skills, an arguable basis that he had been treated unfavourably because of his race might exist.
103. No evidence was provided to the Tribunal as to any relevant characteristic of persons of the complainant’s race in relation to the speaking of English in their homes. Ms Rood’s notation on her record of inspection of the complainant’s home that the complainant’s family may speak Chinese at home appears to have been based upon her observation of the non-English language of communication used by the complainant’s wife and one of her children at the time of the inspection rather than any presumption made by her based on the complainant’s race.
104. Having considered all of the evidence, I am not satisfied in any event that the true basis for the treatment by the respondent of the complainant that resulted in him not being allocated a homestay student was connected to his race or of any characteristic that persons of his race are generally presumed to have. In my view, the evidence establishes that the true basis for the respondent’s treatment of the complainant that resulted in him not being allocated a student as part of the homestay program was the assessment that was made at the time of the inspection of his home that it had not, at that time, reached a standard considered necessary to accommodate a student and this situation continued due to the absence of any information being communicated to the IEU that the condition of the house had changed.
105. In addition, there were other intervening factors that the evidence suggests would have made unlikely the allocation of a student to the complainant. They include the small number of students requiring accommodation as a proportion of the number of families who had expressed interest in providing them with accommodation; the relatively small proportion of female students seeking to enter the international student program; the complainant’s expressed preference for female students; the policy of the IEU not to accommodate male and female students in the same homestay accommodation except in particular circumstances; the fact that the complainant had two male students living in his home for much of the period to which his complaint relates; and the priority given to host families who were “losing” a student and wished to accommodate another student.
106. While section 4A of the Discrimination Act makes it clear that the Discrimination Act does not require that the attributes relied upon by the complainant be the sole cause or even the dominant cause of any unfavourable treatment of the complainant, the evidence does not establish, in my view, that the language that may have been spoken by the complainant’s family in their home was an operative ground that resulted in no student being allocated to him.
107. No submission was made to the Tribunal that there was evidence which established that the consequence of which he complains was caused by his status as the parent of three children nor have I found any such evidence.
Conclusion
108. The conclusion which I have reached is that the complaint has not been substantiated and pursuant to section 102(2)(a)(ii) of the Discrimination Act must, therefore, be dismissed.
AUSTRALIAN CAPITAL TERRITORY
DISCRIMINATION TRIBUNAL
APPEARANCE DETAILS
To be completed by Member's Staff
________________________________________________________________________
FILE NO: DT03/309
COMPLAINANT: YAOXIANG WANG
RESPONDENT: ACT DEPARTMENT OF EDUCATION, YOUTH &
FAMILY SERVICES
COUNSEL APPEARING: COMPLAINANT:
RESPONDENT: DR D JARVIS
SOLICITORS: COMPLAINANT:
RESPONDENT: ACT GOVERNMENT SOLICITOR
OTHER: COMPLAINANT: SELF
RESPONDENT:
TRIBUNAL MEMBER: MR M H PEEDOM, DEPUTY PRESIDENT
DATE OF HEARING: 17 & 18 MAY 2005 PLACE: CANBERRA
DATE OF DECISION: 14 SEPTEMBER 2005 PLACE: CANBERRA
COMMENT:
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