Wolf v Secretary, Department of Education

[2023] NSWCATAD 202

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Wolf v Secretary, Department of Education [2023] NSWCATAD 202

Hearing dates:

20, 21 February 2023, 6 April 2023, final written submissions received 4 May 2023.

Date of orders:

1 August 2023

Decision date:

01 August 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

D Dinnen, Senior Member
Jillian Herberte, General Member

Decision:

(1)   The Applicant’s complaint of racial vilification is substantiated.

(2)   The remainder of the Applicant’s complaint is dismissed.

(3)   The First Respondent is to issue the Applicant with an apology forthwith, in written form addressed to the Applicant, acknowledging the Tribunal’s findings of racial vilification and the harm caused to her.

(4)   The parties are to provide the Tribunal with an agreed draft Statement for publication in accordance with these reasons for decision within 14 days. If no agreement is reached, the parties are to provide the Tribunal with submissions as to the exact form, content and manner of publication they each propose, within 21 days of the publication of these reasons for decision.

Catchwords:

HUMAN RIGHTS – Discrimination – racial vilification – public act – incite serious contempt and severe ridicule - teacher – classroom – indirect discrimination – causation – remedies – apology – public statement

Legislation Cited:

Anti-Discrimination Act 1977

Inclosed Lands Protection Act 1901

Cases Cited:

A v Director-General, Department Education and Training [2008] NSWSC 1091

Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165

Barry v Futter [2011] NSWADT 205

Bonella & Ors v Wollongong City Council [2001] NSWADT 194

Browne v Dunn (1893) 6 R 67

Bulstrode v Trimble [1970] VR 840

Burns v Cunningham [2011] NSWADT 240

Burns v Dye [2002] NSWADT 32

Burns v Radio 2UE Sydney Pty Ltd & Ors (No 2) [2005] NSWADT 24

Burns v Sunol (No 2) [2017] NSWCATAD 236 Catholic Education Office v Clark (2004) 138 FCR 121

Comensoli v Passas [2019] NSWCATAD 155

Commonwealth Bank v Human Rights and Equal Opportunity Commission (1997) 150 ALR 1

Director General, Department of Education & Training v FP and FQ on behalf of FR (EOD) [2003] NSWADTAP 51

Director General, Department of Education and Training v ZG on behalf of A, B and C; ZG on behalf of A, B and C v Director General, Department of Education and Training (EOD) [2007] NSWADTAP 50

Eatock v Bolt (No 2) [2011] FCA 1180

Ekermawi v Commissioner of Police, NSW Police Force [2019] NSWCATAD 79

Ekermawi v Jones (No 3) [2014] NSWCATAD 58

Forest v Queensland Health [2007] FCA 1236

Govic v Boral Australian Gypsum Ltd [2015] VSCA 130

John Fairfax Publications Pty Ltd v Kazak [2002] NSWADTAP 35

Jones v Scully [2002] FCA 1080; 120 FCR 243

Jones v The Bible Believers’ Church [2007] FCA 55

Jones v Toben [2002] FCA 1150; 71 ALD 629

Jones v Trad [2013] NSWCA 389; (2013) 86 NSWLR 241

Kazak v John Fairfax Publications Limited [2000] NSWADT 77

Lamb v Campbell [2021] NSWCATAD 103

Malenha v Sullivan [2017] NSWCATAD 222

Margan v Manias [2015] NSWCA 388

O’Callaghan v Loder [1983] 3 NSWLR 89

Philippiadis v Transport Accident Commission [2016] VSCA 1; 74 MVR 289

Poniatowska v Hickinbotham [2009] FCA 680

Queensland v Forest [2008] FCAFC 96; 168 FCR 532

R v Morrow (2009) 26 VR 526; [2009] VSCA 291

Riley v State of NSW (Department of Education) [2019] NSWCATAD 223

Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44

State of NSW v Amery (2006) 230 CLR 174

Sunol v Collier (No 2) [2012] NSWCA 44; (2012) 260 FLR 414

Veloskey v Karagiannakis [2002] NSWADTAP18

Vines v Djordjevitch (1955) 91 CLR 512

Walker v State of Victoria [2011] FCA 258

Waters v Public Transport Corporation (1991) 173 CLR 349

Western Aboriginal Legal Service v Jones [2000] NSWADT 102

Wolf-Matthews v Secretary, Department of Education [2022] NSWCATAD 173

Wotton v State of Queensland (No 5) [2016] FCA 1457, (2016) 352 ALR 146

ZG v Director General, NSW Department of Education and Training [2006] NSWADT 344

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Nikita Wolf (Applicant)
Secretary, Department of Education (First Respondent)
James Anderson (Second Respondent)

Representation:

Counsel:
J Seymour (Respondents)

Solicitors:
Debbie Wolf-Matthews (Agent) (Applicant)
Wotton Kearney (First and Second Respondents)

File Number(s):

2021/00310458

Publication restriction:

Nil

REASONS FOR DECISION

1. On 13 May 2021, Debbie Wolf-Matthews lodged a complaint of race discrimination, racial vilification and victimisation on behalf of her daughter, Nikita Wolf (Nikita) against the Secretary, Department of Education (the First Respondent) and James Anderson (the Second Respondent) with Anti-Discrimination NSW (ADNSW). The President of ADNSW declined the complaint on 5 October 2021. On 2 December 2021 the Tribunal granted leave pursuant to s 96(1) of the Anti-Discrimination Act 1977 (the Act) for the Applicant’s complaints of race discrimination and racial vilification against the Respondents to proceed in this Tribunal: see Wolf-Matthews v Secretary, Department of Education [2022] NSWCATAD 173.

2. At the time proceedings were commenced, Nikita was a minor, and her mother therefore brought the proceedings on her behalf pursuant to s 87A(1)(b) of the Act. Nikita turned 18 in June 2022, prior to the hearing of the complaint. At the commencement of the hearing on 20 February 2023 the Tribunal made orders identifying the appropriate Applicant as Nikita Wolf and granting leave to Debbie Wolf-Matthews to appear as her agent.

3. The Applicant’s Points of Claim, filed on 4 February 2022, stated as follows:

1. At the relevant times, Nikita Wolf (Nikita), the daughter of Debbie Wolf-Matthews (plaintiff), was a student at Cronulla High School.

2. Nikita is partially of Indian race.

3. At the relevant times, James Anderson was a teacher at Cronulla High School.

4. In 2021, Mr Anderson taught a Year 12 business studies class at Cronulla High School. Nikita was a student allocated to that class.

5. On 3 March 2021, during a lesson for the abovementioned class:

a. Mr Anderson played a video from YouTube for the whole class.

b. The video showed an Indian woman speaking in English and Hindi.

c. Mr Anderson impersonated the woman’s accent in a mocking way.

d. Mr Anderson said; “all Indians are Uber drivers and Deliveroo people, and their service is bad”.

e. This conduct continued for approximately 20 minutes.

6. Two students, who were not of, or partially of, Indian race, objected to the conduct described in [5] above.

a. One student asked that the video be turned off. 

b. Another student interjected after Mr Anderson’s comments saying, “no sir, they’re good.”

7. Nikita was distressed by the conduct described in [5] above.

8. Later on 3 March 2021, Nikita emailed Mr Anderson expressing concern about the conduct described in [5] above.

9. On 4 March 2021, Mr Anderson apologised to Nikita personally for the conduct described in [5] above and said he would apologise to the class,

10. On 5 March 2021, in the business studies class. Mr Anderson said words to the effect of: “sorry about last lesson”. He did not say anything further about the conduct described in [5] above. For the remainder of the class, Mr Anderson ignored Nikita. That conduct included not looking at Nikita and not calling on Nikita to participate.

11. The conduct described in [5] above was reported to Mr Ibrahim, the principal of Cronulla High School in email exchanges on 5, 6 and 7 March 2021. On 8 March 2021 Nikita Wolf’s parents (including the plaintiff) met with Mr Ibrahim. Mr Ibrahim indicated that Mr Anderson would continue teaching the business studies class and that Nikita should remain in the class. Mr Ibrahim asked the plaintiff to leave his office.

12. Also on 8 March 2021, in the business studies class, Mr Anderson said words to the effect of; “sorry for the comments I made last Wednesday”. He did not mention the content of the comments, the topic of racism or the inflammatory and prejudicial stereotypes he had invoked. The conduct of Mr Anderson in ignoring Nikita, as described in [10] above, continued.

13. Because she felt uncomfortable about and intimidated by Mr Anderson’s behaviour, Nikita decided not to attend Mr Anderson’s class any further and instead went to the school’s library.

14. In March 2021, Nikita asked to be moved to a different class taught by a different teacher and was permitted to do so.

Racial vilification

15. Mr Anderson racially vilified Nikita, contrary to s 20C(1) of the Anti-Discrimination Act 1977 (NSW) because;

a. his conduct described in [5] above incited hatred towards, serious contempt for, or severe ridicule of, persons of Indian race on the ground of their race; and

b. his conduct described in [5] above was a public act, in circumstances where the conduct occurred in the course of his teaching a class of students in a public school as part of regularly scheduled lessons.

16. The Department of Education is vicariously liable for the actions of Mr Anderson which constituted racial vilification.

Racial discrimination

17. Nikita was subjected to detriment, in the terms of s 17(2)(a) of the Anti-Discrimination Act, because she was exposed to a learning environment in which racism was not addressed or denounced, but was instead tolerated.

a. Mr Ibrahim’s position was that Mr Anderson should continue to teach Nikita’s class;

b. Nikita was uncomfortable in Mr Anderson’s class because of his conduct.

c. Accordingly, Nikita absented herself from the class.

4. In response to a request for further and better particulars, the Applicant’s previous legal representation stated on 2 May 2022:

In relation to your request for further and better particulars in relation to racial discrimination, we allege indirect discrimination on the basis that:

a) The educational authority required that Nikita continue to be taught and/or supervised by Mr Anderson;

b) A substantially higher proportion of persons who are of a different race to Nikita would have been able to comply with that requirement/condition;

c) Nikita was not able to comply with that requirement/condition; and

d) It was not reasonable in the circumstances to ask Nikita to comply with that requirement/condition.

5. Rather than setting out the whole of the Respondents’ Defence in these reasons, it serves to identify what exactly the Respondents admitted to or accepted. The remainder of the Applicant’s claim was either denied or not admitted by the Respondents. In their Points of Defence filed 31 March 2022, the First Respondent accepted that it was vicariously liable for the actions of the Second Respondent, and admitted that:

1. Nikita was a student at Cronulla High School from about 28 January 2016 to 16 December 2021. Debbie Wolf-Matthews is the mother of Nikita;

2. James Anderson was a teacher at Cronulla High School. In 2021, Mr Anderson taught a Year 12 business studies class at Cronulla High School. Nikita was a student allocated to that class.

3. On 3 March 2021, during a lesson for the abovementioned class, Mr Anderson played a video from YouTube for the whole class. The video showed an Indian woman speaking in English and Hindi. Mr Anderson said words to the effect “you see not all Indians are Uber drivers”. The video had been shown for the purpose of teaching the business studies class, and contained content related to the business studies class.

4. On 4 March 2021 the Second Respondent personally apologised to Nikita for upsetting her and offered to apologise to the class. On 5 March 2021 and on 8 March 2021 the Second Respondent apologised to the business studies class.

5. Nikita’s parents communicated with the school’s principal, Mr Ibrahim, via email between 5 and 8 March 2021. On 8 March 2021 Nikita and her parents met with Mr Ibrahim. In March 2021, Nikita asked to be moved to a different class taught by a different teacher and was permitted to do so.

6. In respect of the claim for racial vilification, the Respondents’ position was:

1. The conduct occurred in a classroom, and did not constitute a “public act” within the meaning of s 20B of the Act, which is required to enliven s 20C of the Act;

2. The nature of the comments which were the subject of the conduct were not capable of inciting hatred towards, serious contempt for, or severe ridicule of Indian persons on the ground of their Indian race within the meaning of s 20C of the Act;

7. In respect of the claim for indirect racial discrimination, the Respondents’ position was:

1. There was no valid requirement or condition imposed within the meaning of s 7(1)(c) of the Act, because it was limited to the Applicant;

2. There was no detriment to the Applicant within the meaning of s 17(2)(b) of the Act. The Applicant has not suffered disadvantage of any substance as a direct or indirect result of the Respondents’ actions because she was not required to remain in the Second Respondent’s class and was transferred to another Business Studies class;

3. The actions of the First Respondent in retaining the Second Respondent teaching one of the Business Studies classes were justifiable and reasonable in the circumstances.

8. The hearing took place in person on 20 and 21 February 2023 and 6 April 2023. Both parties provided the Tribunal with extensive oral and written submissions, before, during, and following the conclusion of the oral hearing. The Applicant relied on affidavits of Nikita Wolf, Debbie Wolf-Matthews, and Rene Wolf, Nikita’s father, each dated 5 October 2022. Each of the Applicant’s witnesses was cross examined at hearing. The Respondents relied on the Statements of James Anderson dated 7 December 2022, Tony Ibrahim dated 6 December 2022, Michael James Minors dated 6 December 2022, and Peter James Rouse dated 23 January 2023. None of the Respondent’s witnesses were required for cross examination.

9. The Applicant was legally represented at the time that the Points of Claim were filed, but was not legally represented by the time the hearing commenced on 20 February 2023. This change of representation and legal assistance impacted the Applicant’s presentation of her case at hearing and her written submissions, which traversed issues beyond those identified in the Points of Claim, were lengthy, unfocussed, and contained reference to irrelevant matters.

10. The Respondents submitted that the Applicant’s case should be limited to those issues identified in the Points of Claim. In consideration of the Tribunal’s guiding principle and in the absence of any application by the Applicant to amend the Points of Claim, we agree. Accordingly, in these reasons for decision, we have not considered any factual evidence or issues which go beyond the issues identified in the Points of Claim and the response to the request for further and better particulars, which are reproduced above at [3] and [4]. We have also included reference only to those parts of the Applicant’s submissions which are specifically relevant to the issues considered.

Legal Principles

11. Section 7 of the Act provides:

7 What constitutes discrimination on the ground of race

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if the perpetrator—

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

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

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

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

12. Section 4A of the Act states:

If--

(a) an act is done for 2 or more reasons, and

(b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act),

then, for the purposes of this Act, the act is taken to be done for that reason.

13. Section 4 of the Act provides:

“race” includes colour, nationality, descent and ethnic, ethno-religious or national origin.

14. Section 17 of the Act relevantly states:

17 Education

…

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

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

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

(3) Nothing in this section applies to or in respect of a prescribed educational authority in relation to such circumstances, if any, as may be prescribed.

15. Section 20C of the Act concerns unlawful racial vilification. It states:

20C Racial vilification unlawful

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

(2) Nothing in this section renders unlawful—

(a) a fair report of a public act referred to in subsection (1), or

(b) a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) in proceedings for defamation, or

(c) a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.

16. Section 20B of the Act defines what is meant by a “public act” for the purpose of s 20C of the Act:

20B Definition of “public act”

In this Division, public act includes—

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

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

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

17. The orders that the Tribunal may make following a hearing of a complaint are set out in s 108 of the Act. Relevantly, these state:

108 ORDER OR OTHER DECISION OF TRIBUNAL

(1) In proceedings relating to a complaint, the Tribunal may--

(a) dismiss the complaint in whole or in part, or

(b) find the complaint substantiated in whole or in part.

(2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following--

(a) except in respect of a matter referred to the Tribunal under section 95 (2), order the respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct,

(b) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations,

(c) except in respect of a representative complaint or a matter referred to the Tribunal under section 95 (2), order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant,

(d) order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both),

(e) in respect of a vilification complaint, order the respondent to develop and implement a program or policy aimed at eliminating unlawful discrimination,

(f) make an order declaring void in whole or in part and either ab initio or from such time as is specified in the order any contract or agreement made in contravention of this Act or the regulations,

(g) decline to take any further action in the matter.

(3) An order of the Tribunal may extend to conduct of the respondent that affects persons other than the complainant or complainants if the Tribunal, having regard to the circumstances of the case, considers that such an extension is appropriate.

(4) The power of the Tribunal to award damages to a complainant is taken, in the case of a complaint lodged by a representative body, to be a power to award damages to the person or persons on behalf of whom the complaint is made and not to include a power to award damages to the representative body.

(5) In making an order for damages concerning a complaint made on behalf of a person or persons, the Tribunal may make such order as it thinks fit as to the application of those damages for the benefit of the person or persons.

(6) If two or more vilification complaints are made in respect of the same public act of the respondent and those complaints are found to be substantiated in whole or in part, the Tribunal must not make an order or orders for damages that would cause the respondent to pay more than $100,000 in the aggregate in respect of that public act.

(7) If the Tribunal makes an order under subsection (2) (b), (c), (d) or (e), it may also order that, in default of compliance with the order within the time specified by the Tribunal, the respondent is to pay the complainant damages not exceeding $100,000 by way of compensation for failure to comply with the order.

Issues

18. For Nikita to succeed in her racial vilification complaint pursuant to s 20C of the Act, she must demonstrate:

1. That there was a public act;

2. The public act had the capacity to incite hatred or serious contempt;

3. The capacity to incite was on the grounds of race.

19. For Nikita to succeed in her indirect discrimination in education complaint pursuant to s 17(2)(b) of the Act, she must first demonstrate:

1. That the First Respondent subjected her to a detriment;

1. Including, what was the detriment;

2. That she was subjected to the detriment because of her race.

20. She must then demonstrate the elements of indirect discrimination:

1. That she was required to comply with a requirement or condition;

2. A substantially higher proportion of persons, not of her race, comply or can comply with that requirement or condition;

3. The requirement was not reasonable having regard to the circumstances of the case;

4. She did not or was not able to comply with that requirement or condition because of her race;

Consideration

The ‘unchallenged’ evidence

21. The Applicant declined the opportunity to cross examine the Respondents’ witnesses at hearing.

22. The Applicant’s failure to cross examine the Respondents’ witnesses means that the rule in Browne v Dunn (1893) 6 R 67 (Browne v Dunn) was not complied with by the Applicant. In Browne v Dunn the Judicial Council of the House of Lords stated at 70, 76:

“… it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination…

“… if you intend to impeach a witness you are bound, whilst he is still in the box, to give him an opportunity of making any explanation which is open to him.”

23. The rule in Browne v Dunn is that a party must put the substance of contradictory evidence to a witness in cross-examination and give them the opportunity to respond to it. It is based on principles of fairness. On the basis that they were not required for cross examination at hearing, the Respondents submitted that the evidence of Mr Anderson and Mr Ibrahim was ‘unchallenged’. However, the Applicant’s failure to provide Mr Anderson or Mr Ibrahim with the opportunity in cross examination to respond to her contradicting evidence does not mean their evidence was unchallenged. As stated by the Victorian Supreme Court of Appeal in Philippiadis v Transport Accident Commission [2016] VSCA 1; 74 MVR 289 at [86] in relation to the rule in Browne v Dunn:

…non-compliance with the rule does not mean that the evidence led in contradiction of the relevant witness’s evidence cannot be considered. Instead it is a matter of weight for the court to take into account (R v Morrow (2009) 26 VR 526; [2009] VSCA 291 at [59]). If a witness is not cross-examined upon a particular matter in relation to which he or she has given evidence, then that circumstance will often be a very good reason for accepting the witness’s evidence upon that matter. However, if a witness’s evidence appeared to be incredible or unconvincing, or if it was contradicted by other evidence which appeared worthy of credence, the fact that the witness had not been cross-examined would, or might, be of little importance in deciding whether to accept his or her evidence (Govic v Boral Australian Gypsum Ltd [2015] VSCA 130 at [97], quoting Bulstrode v Trimble [1970] VR 840 at 848).

24. It is the Tribunal’s task to consider all of the evidence before it to make the relevant findings of fact. The Applicant and Mr Anderson gave conflicting accounts of what occurred in the Year 12 Business Studies class at Cronulla High School on 3 March 2021 (the incident). The Respondents’ witness statements were filed after the Applicant’s evidence was received by them. The witness statements of Mr Anderson and Mr Ibrahim directly addresses specific conflicting statements made by the Applicant, Mrs Wolf-Matthews and Mr Wolf. It cannot therefore be said that the Respondents’ witnesses have not had the opportunity to respond to the contradicting evidence. Nevertheless, in considering what weight to afford the conflicting versions of what occurred on 3 March 2021, the Tribunal has taken into account the fact that the Respondents’ witnesses were not required for cross examination by the Applicant.

What happened on 3 March 2021

25. The Applicant’s evidence of what occurred in the incident was:

4. On Wednesday, 3 March 2021, I attended a business studies class run by Mr Anderson. The first part of the class was spent working individually.

5. For the last half of the class, Mr Anderson said, “I am going to find a video for you “for educational purposes”.

6. Mr Anderson then commenced playing a Youtube video which consisted of a woman of Indian race speaking in English and Hindi. Mr Anderson skipped to those points in the video where she spoke in Hindi, saying ‘I’ll translate what she is saying” with a mocking smile on his face. When the woman was speaking in English, Mr Anderson laughed at the pronunciation of her words.

7. As the video was playing, I saw Mr Anderson, while smiling, glance at me a few times and continue to mockingly giggle at the lady and her accent. During the playing of the video which ran for over twenty minutes, I recall a girl in the class asking for the video to be turned off a few times, saying “can you turn it off” but Mr Anderson did not do so.

8. I was distressed and uncomfortable that Mr Anderson was looking at me during the video and mocked the Indian presenter, knowing that I am of Indian race. It was embarrassing and hurtful.

9. Mr Anderson stopped the video just before the time that the class was scheduled to end and whilst facing the class, Mr Anderson said, with a smile on his face: “All Indians are Uber drivers and Deliveroo people and their service is bad”.

10. A boy in the class responded, “No, they’re good sir”.

26. Mr Anderson’s evidence of what occurred in the incident was:

20. On Wednesday, 3 March 2021, I taught the business studies class.

…

22. During the business studies class, I played a video from Youtube titled “BSM – Elements of marketing mix: Product Mix // Class-12: Commerce” (the Video). The Video has an approximate run time of 49 minutes and 39 seconds. The Video is an education Video uploaded to the “DD Odia” Youtube channel on or about 9 February 2021…

…

27. The female presenter of the Video was of Indian appearance and spoke in both English and Hindi throughout the video. The focus of the Video was the content delivered by the presenter, not the presenter herself.

28. I did not play the entire Video for the class. I played the Video for approximately 10 – 15 minutes. I did not speak continuously to the class whilst the Video played. I spoke to the class when I paused the Video to explain and discuss aspects of the Video that were relevant to the business studies class. The students were permitted to work and take notes, whilst watching the Video. The formula was video time was 10 – 15 minutes and discussing the business studies content from the video was 10-15 minutes. The total time on this section of the class was approximately 20 – 30 minutes.

29. Occasionally the presenter switched from speaking English to Hindi. When the presenter was speaking Hindi, I fast forwarded the Video because the business studies class is taught in English.

30. At some point while the Video played, I saw that some of the students were laughing at the Video. I thought that the students were laughing at the presenter and in particular the presenter’s accent. The students will often laugh at or comment on school materials during classes.

31. I do not recall the precise order of the comments I made.

32. I said to the class words to the effect of:

“Don’t assume because she is Indian that she is an Uber driver or works at 7 Eleven”.

33. I made the above comment because the students were laughing.

34. I also said words to the effect of: “She [the presenter] said if you do not study, you will fail Business studies”. This was intended to be a joke. I used my normal voice, not an accent or parody.

35. At some point, I also said to the class words to the effect of:

“During COVID times, everyone has been using the delivery services, Uber and others, and that sometimes food turns up and it is cold. This is because they’ve taken more than 10 minutes and there are rules around that and service models around that. That is bad service, because it takes a long time to arrive.”

…

37. At the time there was nothing in the nature of any reactions by the students in the class that day to cause me to think that one or more of the students was upset.

38. At the time I did not see whether Nikita displayed any indication (verbal or non-verbal) of being uncomfortable or distressed during the class. I was not specifically looking at Nikita or any other student at the time.

39. At the end of the class, the students appeared to behave normally. I did not observe any unusual behaviour. The students will usually provide feedback within a class if they have an issue or concern about something.

40. I did not make any concluding remarks at the end of the lesson.

27. The only direct witnesses to the incident to provide evidence to the Tribunal were the Applicant and Mr Anderson. None of the Applicant’s classmates/ Mr Anderson’s other students in that class provided evidence to the Tribunal.

28. The accounts of the incident contained in the Applicant’s Affidavit and Mr Anderson’s Statement were prepared some 19 months and 21 months after the incident occurred. They are not contemporaneous records of what occurred during the incident or its aftermath. The Tribunal has, however, been provided with more contemporaneous records as annexures to the various filed witness statements and affidavits, against which the veracity of those accounts can be assessed. Those contemporaneous records include:

1. Email sent by Nikita to Mr Anderson, complaining about the incident, dated 11.53pm on 3 March 2021. The email stated:

Dear Mr Anderson

I’d like to bring to your attention that what you did in class today was inappropriate on many levels and I’m disappointed that you thought it was okay to make fun of a whole race that is half of me.

I have first hand knowledge that not every person of Indian origin is an Uber driver or a Deliveroo person and even if they were there’s nothing wrong with that – at least they have a job and are standing on their own two feet.

I can assure you that not everyone speaks with an accent and even if they do, it’s because they speak several languages too.

India produces some of the most educated, highly skilled people and is also a forgiving nation in spite of the country being ruthlessly exploited in such a brutish way with more than $45 trillian being looted from the country to fill the coffers of other nations and build their economies.

The biggest concern though is that as a teacher, your comments can influence the minds of students in a negative way and such could result in stereotyping and racism which is offensive.

Nikita

2. Student Incident Report completed by Nikita on 10 March 2021;

3. Emails between Mr and Mrs Wolf-Matthews and Mr Ibrahim on 5 March 2021, 6 March 2021, 7 March 2021, 8 March 2021;

4. Filenotes of Michael Minors recorded 8 March 2021 and 9 March 2021 of meetings with Nikita regarding the incident;

5. Letter to James Anderson from Ben Hallam, Professional and Ethical Standards (PES), regarding allegations of misconduct, (erroneously dated 24 October 2020), emailed to Mr Ibrahim on 24 March 2021.

6. Emails between Mrs Wolf-Matthews and Dave Berthon, Investigator, Department of Education PES Directorate on 8 March 2021; correspondence between Mrs Wolf-Matthews and Karen Shehata, Director, Educational Leadership, Port Hacking Principal Network, Department of Education dated 10 March 2021 and 11 March 2021; correspondence between Mrs Wolf-Matthews and offices of Mark Speakman (Member for Cronulla) and Sarah Mitchell (Minister for Education and Early Childhood Learning) dated 11 March 2021 to 6 May 2021.

7. Complaint to ADNSW dated 13 May 2021; Response to complaint by Respondents’ legal representatives of 21 July 2021.

29. Having considered the evidence, the factual disputes for determination in relation to what occurred at the time of the incident are relevantly:

1. What Mr Anderson specifically said during and after the video.

2. The manner in which Mr Anderson spoke to the class during and after the video.

30. Mr Anderson denies that he stated, “all Indians are Uber drivers and Deliveroo people, and their service is bad”. The Tribunal prefers Nikita’s evidence, for the following reasons:

1. Nikita’s email to Mr Anderson on the same date as the incident implies that Mr Anderson specifically stated those words, by her comment that “I have first hand knowledge that not every person of Indian origin is an Uber driver or a Deliveroo person”;

2. The Student Incident report completed by Nikita on 10 March 2021 reiterates a largely consistent account:

Eventually he stopped the video to say ALL Indians were Uber drivers or delivery people and that their service was bad

3. Her recollection of that specific statement was not tested in cross-examination at the hearing;

4. Despite not agreeing to the words attributed to him, Mr Anderson admits in his Statement to making statements which involve racist stereotypes of Indian people, Uber drivers and food delivery services;

5. On Mr Ibrahim’s evidence, on 8 March 2021 Mr Anderson admitted saying “See, not all Indian people become Uber drivers”, and “I commented on the quality of the service that they give” which differs from the words admitted by Mr Anderson in his Statement, but which still involve racist stereotypes of Indian people and Uber drivers;

6. Mr Minors’ file note of 8 March 2021 recording his discussion with Nikita about the incident quotes specifically “All Indians are Uber drivers”;

7. Mr Minors states that in early March 2021, Mr Anderson characterised his statements as “inappropriate… racial in nature”;

8. Correspondence from Karen Shehata to Mrs Wolf-Matthews of 11 March 2021 states:

Mr Ibrahim has held a disciplinary meeting with Mr Anderson in regards to the allegations of racial profiling of the people of the Indian sub-continent, including their accent, the Hindi language, and their occupations.

9. The letter from the PES Directorate includes the following recount of the incident:

Information has been received that on 3 March 2021, you showed a video to students of a woman from an Indian background discussing small business ownership in Hindi. You have commented that the lady is an “uber driver” and
“delivers curry”. Information received also suggests you mocked the accent of the Indian woman.

10. Prior to the Respondents’ filing of their Points of Defence, there was no denial by the Respondents that Mr Anderson had said the words attributed to him by Nikita in any of the correspondence to the Applicant, her parents, to ADNSW or in documents provided to the Tribunal. In correspondence to ADNSW on 21 July 2021, the Respondents’ representatives stated:

7. It is alleged that:

7.1 on 3 March 2021, Mr Anderson played a Youtube video of an Indian lady speaking in Hindu, and while doing so made fun of the Indian lady’s accent and ridiculed Indian people

7.2 Mr Anderson made statements along the lines of ‘all Indian people are uber drivers’ and ‘delivery people’ and that ‘their service is bad’.

8. The Department fully accepts Mr Anderson’s conduct was inappropriate and offensive…

31. Mr Anderson denies that he mocked the presenter or her accent. In his Statement he denied that he laughed at the Indian woman’s accent, made fun of her, mocked her accent or how she sounded or her pronunciations of words, or did an impersonation of her accent, and attempted to attribute any perception that he had done this to his attempt at a “joke with the students”, for the purpose of engaging them and making content more interesting. He said:

42. I did not impersonate the presenter in the Video by adopting a voice or accent…

43. Quite often I try to joke with the students. Those jokes are not impressions. This is to engage with the students and make the content more interesting.

44. I understand it is alleged that I impersonated the presenter in the Video during the Business studies class ‘in a mocking way’. I deny that I mocked the presenter in the Video.

32. He also claims to have skipped over those parts of the video in which the presenter was speaking in Hindi. The Respondents’ submissions were to the effect that Mr Anderson was merely making a joke for the purpose of engaging the class, and was laughing at his own joke.

33. Nikita’s evidence was to the contrary:

Mr Anderson skipped to those points in the video where she spoke in Hindi, saying ‘I’ll translate what she is saying” with a mocking smile on his face. When the woman was speaking in English, Mr Anderson laughed at the pronunciation of her words.

7. As the video was playing, I saw Mr Anderson, while smiling, glance at me a few times and continue to mockingly giggle at the lady and her accent.

34. We reject Mr Anderson’s evidence to the effect that students in the class were laughing, or that he made comments because the students were laughing. We prefer Nikita’s evidence for the following reasons:

1. Mr Anderson admitted in his statement that he did jokingly ‘translate’ what the woman was saying, to the effect that ‘she is saying if you don’t study, you will fail Business Studies’. He also said that he ‘probably laughed at [his] own joke’ when he said these words.

1. Nikita’s email to Mr Anderson on the same date as the incident implies that Mr Anderson referred to the presenter’s accent negatively in some way, whether verbally or otherwise:

I’d like to bring to your attention that what you did in class today was inappropriate on many levels and I’m disappointed that you thought it was okay to make fun of a whole race that is half of me.

…

I can assure you that not everyone speaks with an accent and even if they do, it’s because they speak several languages too.

3. The Student Incident report completed by Nikita on 10 March 2021 reiterates a largely consistent account:

…Mr Anderson used the video to make fun off the Indian accent. He was laughing at the woman and encouriging the students to join in. Once the lady in the video began to speak Hindi he said he knew what she was saying and proceeded to “translate” what she was saying (not what she was actually talking about…

4. The letter from the PES Directorate states:

Information received also suggests you mocked the accent of the Indian woman.

5. Correspondence from Karen Shehata to Mrs Wolf-Matthews of 11 March 2021 states (emphasis added):

Mr Ibrahim has held a disciplinary meeting with Mr Anderson in regards to the allegations of racial profiling of the people of the Indian sub-continent, including their accent, the Hindi language, and their occupations.

6. Prior to the Respondents’ filing of their Points of Defence, there was no denial by the Respondents that Mr Anderson had mocked the presenter’s accent. In correspondence to ADNSW on 21 July 2021, the Respondents’ representatives stated:

7. It is alleged that:

7.1 on 3 March 2021, Mr Anderson played a Youtube video of an Indian lady speaking in Hindu, and while doing so made fun of the Indian lady’s accent and ridiculed Indian people

7.2 Mr Anderson made statements along the lines of ‘all Indian people are uber drivers’ and ‘delivery people’ and that ‘their service is bad’.

8. The Department fully accepts Mr Anderson’s conduct was inappropriate and offensive…

7. There is no other evidence to the effect that any of the studies in Nikita’s class participated or joined in with Mr Anderson’s laughing or mocking. To the contrary, all the evidence is to the effect that at least one student protested his comment and Mr Anderson was repeatedly asked to turn the video off.

Racial vilification: Was there a public act?

35. The Respondent submitted that conduct by a teacher in a classroom is not a ‘public act’ within the meaning of section 20B of the Act:

9.   The Respondents submit that the conduct complained of does not constitute a ‘public act’ within the meaning of section 20B of the ADA, which is required to enliven section 20C. The conduct occurred in a classroom, which is not open to the public or any member of the community. The classroom is confined to the students enrolled in the School, and who are usually registered in the class. It is not an open event, or fluid. In the case of year 12 students, it is a particularly static group comprised of those students and the teacher.

…

11.   Comments made by a teacher in a classroom to a class can only possibly fall within section 20B(a), being a ‘form of communication’. It cannot be said to be conduct ‘observable by the public’ within the meaning of section 20B(b), as the conduct occurred wholly within a classroom to which the public do not have access, and there was no distribution or dissemination of any material within the meaning of section 20B(c).

12.   To constitute a public act the communication must be ‘to the public’. In Riley v State of NSW (Department of Education) [2019] NSWCATAD 223 (Riley), the nature of schools in the context of the racial vilification provisions was specifically considered. The Tribunal noted at [114] that ‘the general sense of the word “public” is something which is open to all or affecting the community as a whole’. Further:

[117]   The ordinary meaning of “public act” is an act in public. The requirement that it be public (for example, a statement in a place open to all, or a communication to the public generally) is to be understood in light of Ward JA’s recognition that the legislature places a high value on freedom of expression.

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

13.   The Respondents submit that, consistent with the position set out in Riley, statements made by a teacher in a classroom to the class are not relevantly ‘public acts’. The classroom is not ‘open to all’. A member of the public is not entitled to be present in the classroom or to hear what is said. The ‘public’ does not consist of students of the school.

14. Section 4 of the Inclosed Lands Protection Act 1901, provides that it is unlawful, without lawful excuse, to enter into inclosed lands without the consent of the owner, occupier or person apparently in charge. “Inclosed lands” includes “prescribed premises”, which include a government school (Inclosed Lands Protection Act 1901, s 3). The public cannot access the school. This was a factor relevant to the decision in Riley (see at [119]). Further, students within the school who are not registered to attend a particular class as part of their studies for their HSC, are not permitted to attend that class.

15.   In Riley, the Tribunal also considered other factors relevant to a consideration of whether an act is a ‘public act’:

[114] As the applicants submit, in Barry v Futter [2011] NSWADT 205 at [74]- [76], the Tribunal identified factors which might indicate that an act is a “public act” for the purposes of s 38S of the AD Act, which renders transgender vilification unlawful:

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

75   Secondly, the size of the audience may also indicate whether the communication is public or private. A speaker addressing a group of people is more likely to be communicating to the public than a speaker who is having a one-on-one conversation with another person.

Nonetheless, a person who speaks to a series of people individually and seeks to communicate essentially the same message may be seen as speaking to a wider audience and not just engaging in private conversations.

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

16.   Applying these factors to the present case, the Respondents submit that a teacher teaching a class is not a public act. The teacher is not addressing an audience. The nature of the communication is not in the nature of an address or speech. Rather, communication by a teacher in a classroom is part of promoting learning by the students, which is the act or process of students acquiring knowledge or a skill, and thus is interactive. The size of the group in the classroom is not a one-on-one conversation. However, the teacher is engaging with the students in their capacity as students, in the context of their pre-existing relationship of teacher and students and joint activity of learning in pursuit of the students’ completion of the subject for the Higher School Certificate. Taking into account the nature and circumstances, the words spoken by the Second Respondent cannot properly be characterised as a communication ‘to the public’.

17.   In Riley, the Tribunal also noted as follows:

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

18.   Approaching the interpretation of the racial vilification provisions with conservatism as cautioned by Ward JA similarly applies to an interpretation that would extend the definition of ‘public act’ to any statement made by teachers to students as part of classroom teaching. This would constitute a significant, and it is submitted, an unintended and unwarranted extension of the scope of the vilification provisions of the ADA.

36. The Applicant’s submissions on this issue included the following distinction between public and private places:

This was a Public Act in school, in class, a public place, specifically as a public communication as part of a lesson. This was not a private communication in a private residence. A private residence is not a public place. Home is private, school/classroom is public. What is said in a house is private what is said in a class is public and is a public communication to the members of the public.

A home is where people share similar ideas and beliefs that are common to them which can be freely and openly expressed among them because it is a private place.

Young impressionable students are part of the public, in a classroom - a public place, to learn the specific content designed to educate and deliver that which collectively impacts everyone, therefore is public, unlike what is said in a home which is private.

A classroom has a group of the public including international students and those of various backgrounds and cultures. Mixed ideas and beliefs need to be accommodated, respected and taken into consideration making it a public place.

The lessons taught in class are not subject to secrecy nor is it classified information, hence other teachers can take over the class and substitute teachers are given the class content as well.

37. Section 20B of the Act contains a non-exhaustive definition of “public act”. The definition of public act including "any form of communication to the public" is in very broad terms: Jones v Trad (2013) 86 NSWLR 241 at [43] per Ward JA. A “public act” does not necessarily mean that the conduct or communication took place in a public place. In Lamb v Campbell [2021] NSWCATAD 103 at [22] the Tribunal identified that the proper test is whether the Respondent engaged in a ‘public act’, rather than an ‘act in public’. The Tribunal went on to say at [29] that:

…people can commit public acts alone in a private location, for example via the internet or other forms of communication.

38. In Riley the Tribunal considered whether the particular conduct in those circumstances was ‘an act in public’ as just one of the factors relevant to assessing whether the conduct was a ‘public act’.

39. The Applicant submitted:

… students are a sub set of the public while at school, becoming the very public that will be held to higher expectations from the education gained. Hence, the content of what is taught and learnt is of significant value as it is not static and confined to the classroom but is actively taken out into the wider community that students are part of as members of the public.

… communication has great significance in a classroom as students are observing teachers and learning what is normalized behaviour towards other races.

Discussions at a private meeting between adults are different from the teacher student relationship where minds are shaped and being conditioned through observation affecting the community, hence good values need to be inculcated in everyone's consideration.

A classroom is place with impressionable young minds who are there specifically to learn…

While students attend different classes everything that goes on is discussed outside the classes, on the school grounds, corridors, at recess and beyond and students are impressionable and can be influenced by what they hear from their peers…

Compared to the general public being addressed, there is a power imbalance in the relationship between teachers and students who are there for the purposes of an education to learn and absorb what is being taught.

While the classroom communication may be interactive at times, it is the students who get marked and graded for following what the teacher says and expects.

…

Words from a teacher/educator/adult in school, in a place of learning could make a world of a difference to a student/minor/child, as words have power, and the actions of teachers/educators/adults have significant impacts on young vulnerable students and a good example needs to be set.

Everything that is learnt in school goes out into the public that affects the very fabric of society as students are a sub-set of the public.

Disparaging speech and prejudicial ideas can shape the minds of students that could lead to disastrous consequences if acted upon or further victimized by it and do not belong in a classroom and certainly not from teachers…

40. The Applicant agreed under cross-examination that students could not just go into and leave classes as they wished, and that the Business Studies class was a closed class. We accept that the Business Studies class at Cronulla High School in which the conduct occurred was not open to the general public, and that the Inclosed Lands Act 1901 has the effect that the general public is not allowed to access school grounds. However, this does not mean that any acts which occur on school grounds are not public acts. The teachers and students attending school grounds are also members of the public and may remain so, despite being permitted to access locations to which other members of the public are not. Conduct which occurs on school grounds may still amount to a public act.

41. The decision in Barry v Futter [2011] NSWADT 205 (Barry) identifies three factors which may indicate a communication is public, rather than private. First, the relationship between speaker and audience. Second, the size of the audience, although a communication could be public if it is expressed to a series of people at different times. Third, the nature of the communication and the circumstances in which it arises. Applying those factors in Barry, we disagree entirely with the Respondent’s submission that “a teacher teaching a class is not a public act”.

42. In our view the teaching of a class is generally not a private conversation or communication. Further, Mr Anderson showing the Business Studies class the Video and making comments about it to the class was not ‘interactive’, as submitted by the Respondents. Even though discourse in a classroom setting may go both ways – teacher to students, and students to teacher – the nature of their relationship makes teaching synonymous, in these circumstances, with addressing an audience.

43. In our view, the teacher is addressing an audience when teaching a class. Whilst there is a pre-existing relationship between the teacher and the students in a class, it is not a relationship of equals. In a teacher-student relationship, the teacher controls what information is imparted to the students and how that information is presented. The teacher also ultimately decides whether a student’s understanding of information, when tested, is correct or incorrect. There is an inherent power imbalance between a teacher and their students which places communications from the teacher in a different category to those discussed in Barry and Riley. This distinguishes it from the examples referred to in Barry of “family member, friend or acquaintance, fellow employee or co-participant in a joint activity” which indicate a private communication instead of a public communication. It also distinguishes it from the facts in Riley, which concerned the applicants in those proceedings speaking to fellow contractors and staff members in a staff muster meeting.

44. Taking into account the nature and circumstances, Mr Anderson’s conduct during the incident was, in our view, a public act. He communicated to the public within the meaning of s 20B(1)(a) of the Act and engaged in conduct observable by the public within the meaning of s 20B(1)(b) of the Act.

45. We disagree with the Respondent’s submission that “extending the definition of ‘public act’ to any statement made by teachers to students as part of classroom teaching constitutes a significant, unintended and unwarranted extension of the scope of the vilification provisions of the Act”. First, we have not extended the definition of ‘public act’ as submitted. We have found that in these particular circumstances, for the reasons given, Mr Anderson’s conduct on 3 March 2021 while teaching a Business Studies class at Cronulla High School was a public act. Second, the vilification provisions of the Act specifically anticipate application to academic settings and provide an exception at s 20C(2)(c) of the Act to the effect that “a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter” is not unlawful. The Respondents did not rely on that exception and even if they did, on the evidence before the Tribunal we find that it would not apply, as the disciplinary warning given to Mr Anderson indicates that his conduct was not “done reasonably and in good faith”.

Racial vilification: Did the public act have the capacity to incite hatred or serious contempt?

46. The Applicant submitted:

The vilification experienced shows a serious contempt for the Indian race with a seed planted and no one can vouch for the added ridicule and the severity that it could lead to.

…

47. The Respondents submitted that the nature of the comments made by Mr Anderson were not capable of inciting hatred towards, serious contempt for, or severe ridicule of Indian persons on the ground of their Indian race. They submitted that:

a. the comments do not include any words that “urge” others or “which command, request, propose, advise or encourage” the students in the class to hatred, serious contempt or severe ridicule of persons of Indian race; and

b. by their nature, the comments were not capable of inciting hatred, serious contempt for, or severe ridicule of, persons of Indian race. While the comments alleged may be considered ‘rude, indecorous, base’ or even insulting, that does not, without more, rise to the level of ‘severe ridicule’ required by the prohibition. The communication cannot properly or fairly be said to have encouraged the students in the Business Studies class to hate or seriously scorn or despise persons of Indian race, or to have engaged in extreme ridicule or mockery of persons of Indian race.

48. The words “hatred”, “serious contempt” and “severe ridicule” are to be given their ordinary meaning: Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [40]; Ekermawi v Jones (No 3) [2014] NSWCATAD 58 at [33]. In Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [40], the Tribunal set out the ordinary meaning of “serious”, “contempt”, “severe” and “ridicule”, as defined in the Macquarie Dictionary and Oxford Dictionary:

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

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

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

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

49. In Riley at [129] to [133], the Tribunal considered the test for establishing whether comments were capable of constituting racial vilification as expressed in Sunol v Collier (No 2) [2012] NSWCA 44; (2012) 260 FLR 414 (Sunol No 2). This approach has also been adopted by this Tribunal in vilification cases such as Comensoli v Passas [2019] NSWCATAD 155, Lamb v Campbell [2021] NSWCATAD 103, Ekermawi v Commissioner of Police, NSW Police Force [2019] NSWCATAD 79, Malenha v Sullivan [2017] NSWCATAD 222. In Margan v Manias [2015] NSWCA 388 the Court of Appeal adopted the findings in Sunol No 2 and also noted that:

1. there can be no incitement in the absence of an audience (at [76]);

2. the identification and nature of the audience are essential for the purpose of determining objectively whether an ordinary member of that audience would be likely to be incited by the public act (at [78]);

3. it is not necessary that any person actually be incited (at [12]); and

4. it is necessary that the words used are capable of inciting hatred, serious contempt, or severe ridicule (at [11]).

50. The motive or intention of the Respondent is irrelevant to the question of whether vilification has occurred for the purposes of s20B(a) and/or (b) of the Act: John Fairfax Publications Pty Ltd v Kazak [2002] NSWADTAP 35 at [10]; Burns v Dye [2002] NSWADT 32 at [21]; Veloskey v Karagiannakis [2002] NSWADTAP 18 at [24]; Burns v Cunningham [2011] NSWADT 240 at [69]; This was accepted by Bathurst CJ, without deciding, in Sunol No 2 at [30]-[31]. Were the position otherwise, ignorance and/or prejudice could seek to be excused on the basis that there was “no intention” to vilify. The relevant vilification is not satisfied unless race was the reason or ground for the requisite aggrieved ill feelings being incited: Veloskey v Karagiannakis [2002] NSWADTAP at [37]; Western Aboriginal Legal Service v Jones [2000] NSWADT 102 at [114]. The expression "on the ground of" means that race must be one of the real, general true reasons for the incitement: Jones v Trad [2013] NSWCA 389 at [98].

51. The Respondents submitted that the relevant audience was the Business Studies class students. The Tribunal agrees, and finds further that the nature of the audience is a group of Year 12 public school students. We agree with the Applicant’s submissions that such students are “young and impressionable”. Mr Anderson’s position as a teacher of high school students places him in a position of influence over an impressionable audience.

52. The Applicant submitted:

If remarks about another person's culture and race are made in a classroom and nominalized, and students emulate that and do the same elsewhere - it could end up quite badly for them and others. Students take in the positive and negative from teachers and remember it and the difference between offensive, disparaging remarks and jokes needs to be recognised. Putting someone or their nationality or job down reflects poorly back.

53. Objectively, the context of a business studies class is not the most appropriate venue or time for humour. Whilst, as submitted by the Respondents, humour can be useful to engage students in class content, it always has the potential for misinterpretation by the audience.

54. The Respondents submitted that Mr Anderson’s conduct in laughing or smiling at his own joke was incorrectly interpreted as mocking by the Applicant. The Applicant is entitled to her perception. The issue before the Tribunal is whether objectively that communication could incite serious contempt or severe ridicule of Indian people, on the ground that they are Indian. Whether or not Mr Anderson intended to incite serious contempt and severe ridicule of Indian people is irrelevant, as it is not necessary to show an intention to incite: Sunol No 2, Bathurst CJ at [29]-[31] (Allsop P agreeing).

55. According to the Respondents’ submissions, the communication the subject of the public act “must be expressed in a manner that could objectively incite or stimulate hostility”. In our view, the comments made by Mr Anderson to the effect that “All Indians are Uber drivers and Deliveroo people and their service is bad” objectively show serious contempt and severe ridicule towards Indian people, on the grounds of their race. Mr Anderson’s actions in skipping to those points in the video where the presenter spoke in Hindi, saying “I’ll translate what she is saying” and then pretending to translate, and laughing and smiling while the presenter spoke in accented English and Hindi (whether or not this was in a mocking manner), could objectively incite, urge or encourage the audience to participate in the serious contempt and severe ridicule of Indian people. The comments made by him about Indian people confirmed and reiterated his serious contempt and severe ridicule of Indian people on the grounds of their race, and objectively incited and encouraged the audience to participate in that conduct.

56. In our view, Mr Anderson’s evidence that “some of the students were laughing at the Video. I thought that the students were laughing at the presenter and in particular the presenter’s accent” further demonstrates the capacity for his conduct to incite the students in his class to serious contempt and severe ridicule of Indian people. Nikita’s email to Mr Anderson on the day of the incident also expressed specifically the potential for incitement to serious contempt, hatred and severe ridicule:

The biggest concern though is that as a teacher, your comments can influence the minds of students in a negative way and such could result in stereotyping and racism which is offensive.

57. The Respondents acknowledged in their correspondence to ADNSW of 21 July 2021:

The Department acknowledges that Mr Anderson’s comments could have had the potential to incite “severe ridicule” of the Indian race amongst other students in the Claimant’s class.

58. Although there was no individual actually incited as a result of Mr Anderson’s conduct, as discussed above, this is not necessary.

59. In our view, Mr Anderson’s conduct during the incident objectively reaches the required threshold of inciting, in ordinary reasonable students in the Year 12 Business Studies class, serious contempt or severe ridicule of Indian persons on the grounds of their race. In circumstances where Nikita is an Indian person, this constituted racial vilification within the meaning of s 20C(1) of the Act

Indirect Discrimination

60. Indirect discrimination relies on the imposition of a requirement or condition. The phrase "requirement or condition" is not defined in the Act and must be identified with some degree of precision: Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 (Banovic) at 185; Waters v Public Transport Corporation (1991) 173 CLR 349 (Waters) at 393, 406 -407; Catholic Education Office v Clark (2004) 138 FCR 121 at 143, but need not be explicit: Banovic at 185; and may implicitly arise as a practical reality in the circumstances of the case. The phrase “requirement or condition” should not be given a narrow or technical construction: State of NSW v Amery (2006) 230 CLR 174 (Amery) at 195, and should be interpreted liberally so as to promote the objects of the Act: Banovic at 185, 195-7, 393-4, 406-7; Amery at [64].

61. “Considerable latitude is afforded to applicants in formulating the requirements or conditions about which they complain": Walker v State of Victoria [2011] FCA 258 at [194]. The onus of proving that a requirement or condition was not reasonable lies on the complainant: Waters; Vines v Djordjevitch (1955) 91 CLR 512 at 519-520.

62. In order to make out indirect discrimination, the complainant needs to show that a substantially higher proportion of people who do not have the complainant's status, comply or are able to comply with the alleged requirement or condition. To undertake that comparison, it is necessary to identify the relevant "base group" to whom the requirement is directed: Bonella & Ors v Wollongong City Council [2001] NSWADT 194 at [77]. The identified base group must reveal the significance, if any, of the relevant characteristic to compliance with the impugned requirement: Banovic at 179; Commonwealth Bank v Human Rights and Equal Opportunity Commission (1997) 150 ALR 1 at 42.

63. The Applicant’s claim of indirect discrimination relies on the Respondents’ conduct after the incident. The facts of what occurred after the incident – which we will refer to in these reasons for decision as ‘the aftermath’ - are largely undisputed. Where the parties differ is in their evidence of the impact or the effect of the aftermath.

64. The undisputed evidence was:

1. Nikita emailed a complaint to Mr Anderson about his conduct on the day on the incident at 11.53pm.

2. The following day, on 4 March 2021, Mr Anderson approached Nikita near the school assembly hall and apologised to her privately (1^st apology). The exact words of the apology are disputed.

3. On Friday 5 March 2021, Mr Anderson apologised in Nikita’s Business Studies class (2^nd apology). The exact words of the apology are disputed.

4. On Friday, Mr Wolf emailed the principal, Mr Ibrahim, requesting a meeting.

5. On Monday 8 March 2021 at about 8am, a meeting took place in the principal’s office. Mr Ibrahim, Mr Burnett (deputy principal), Nikita and Mr Wolf were present (the first meeting). The incident was discussed. Mr Wolf requested several times that Mr Anderson be replaced as teacher of Nikita’s Business Studies Class. This was refused. Nikita expressed discomfort at the prospect of returning to Mr Anderson’s class. Nevertheless, she was encouraged to attend Mr Anderson’s class by Mr Ibrahim and Mr Burnett.

6. On 8 March 2021 Nikita attended Mr Anderson’s Business Studies class, during which Mr Anderson apologised (3^rd apology). The exact words of the apology are disputed.

7. Nikita went to the library on 9 and 10 March 2021 instead of attending Mr Anderson’s Business Studies Class.

8. From 11 March 2021 until the end of her HSC, Nikita attended Mr Burnett’s Business Studies Class.

65. The factual matters of which the Tribunal needs to be satisfied are set out above at [19] and [20]. Section 7 defines discrimination, but findings of fact that fall within either of its definitions do not automatically result in a finding of unlawful discrimination. The findings of fact in satisfaction of s 17(2)(b) of the Act are required for conduct to amount to unlawful discrimination in the context of education.

66. The Applicant’s Points of Claim (as set out above) referred to “a detriment within the meaning of s 17(2)(a) of the Act”. Section 17(2)(a) of the Act actually refers to being denied access or limitations to a benefit. It is s 17(2)(b) which refers to a complainant being subjected to “any other detriment”. The particulars expressed in the Points of Claim seem to identify a detriment – that Nikita “was exposed to a learning environment in which racism was not addressed or denounced, but was instead tolerated”. This Tribunal has accordingly considered the Applicant’s claim to be that she was subjected to “any other detriment” within the meaning of s 17(2)(b) of the Act.

67. ‘Detriment’ has been taken to mean “loss, damage or injury” that is “real and not trivial”: Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [41]. Whether something constitutes a detriment requires an objective not subjective evaluation to be undertaken: Sivananthan v Commissioner of Police, NSW Police Service at [41]; Burns v Sunol (No 2) [2017] NSWCATAD 236 at [75].

68. The Respondents have, in our view, mischaracterised the Applicant’s indirect discrimination complaint as the Applicant claiming to be denied or given limited access to a benefit. In the absence of any pleaded claim by the Applicant to that effect, or any evidence or submissions expressly referring to such a benefit, we do not address this further.

Was the Applicant subjected to a detriment?

69. The Applicant’s pleaded claim specifies that the detriment was “a learning environment in which racism was not addressed or denounced, but was instead tolerated”. This is the same detriment as was considered by the Tribunal in ZG v Director General, NSW Department of Education and Training [2006] NSWADT 344 (ZG) and upheld in Director General, Department of Education and Training v ZG on behalf of A, B and C; ZG on behalf of A, B and C v Director General, Department of Education and Training (EOD) [2007] NSWADTAP 50 (ZG Appeal), which was upheld on appeal to the Supreme Court in A v Director-General, Department Education and Training [2008] NSWSC 1091. In our view this detriment is objectively real and not trivial.

70. In ZG, the Tribunal found that despite the school having anti-racism policies and anti-racism officers (ARCOs), the implementation of those policies and actions of the ARCOs was inadequate. As stated in the ZG Appeal at [32] to [35]:

32 Identification of benefit or detriment. The Tribunal defined the benefit as a “safe learning environment” and the detriment as “a learning environment where racism was tolerated”. In Director General, Department of Education & Training v FP and FQ on behalf of FR (EOD) [2003] NSWADTAP 51 (6 November 2003) the Appeal Panel decided, at [37] that a “benefit” should be defined in terms of its content. The respondent submitted that a “safe learning environment” was not a “benefit” within s 17(2), nor is a “learning environment in which racism is tolerated” a detriment.

33 In O’Callaghan v Loder [1983] 3 NSWLR 89, Mathews DCJ found that sexual harassment in the workplace, which the employer knew or ought to have known about, could be regarded as a "detriment". After discussing cases of sexual harassment including O’Callaghan v Loder, the Appeal Panel concluded in FP and FQ at [50] that:

Similarly, racial harassment of a student by fellow students at a school, which the teachers knew about or ought to have known about and took inadequate steps to eradicate, may constitute unlawful discrimination on the ground of race. Being in a school environment poisoned by racial harassment may constitute a "detriment" for the purposes of s 17(2)(b) of the AD Act. It may also constitute denial or limitation of a "benefit" associated with education if the benefit is cast as being the opportunity to enjoy the educational and social functions of a school free from harassment, whether racially based or otherwise.

34 The Tribunal did not err in defining the “detriment” as being in a learning environment where racism is tolerated. Another way of characterising the detriment would have been “being in a school environment poisoned by racial harassment.” The respondent challenged the Tribunal’s finding at [99] on the basis that two incidents at the school, which occurred seven months apart, could not amount to an environment where racism is tolerated. Although there is some force to this submission, this was a finding of fact which it was open on the evidence for the Tribunal to make. The Tribunal went on to find, at [98], that staff at the school had failed to respond adequately to the two incidents:

The Tribunal finds that despite the policies, ARCOs, (Anti-Racism Policy Officers) investigations and recommendations, the teachers at Excelsior, including the ARCO-trained Mr Ryan and Mrs Ives, failed to recognise as racist, and/or to discourage as racist, the remarks made by the children at school on 11 March 1999 and in the library incident, and made by a child or children saying ‘ching chong chinaman’. Further, the Tribunal is satisfied that Excelsior did not comply with its anti-racism policy in respect of the said remarks and subsequently, did not implement the Department’s recommendations. Further, the Department failed to ensure that the ARCOs Mr Ryan and Mrs Ives were fulfilling their role and to monitor that its recommendations were acted upon.

35 The respondent challenged these findings on the basis that non-compliance with a policy or failure to implement Departmental recommendations, does not amount to a detriment. Again, this is a finding of fact that it was open for the Tribunal to make. The Tribunal’s finding, set out above, is a finding that A was subjected to a detriment by staff at the school by failing to adequately respond to the two incidents. However, it was not a finding that that detriment was “on the ground of race” as defined by s 7.

Was the Applicant’s learning environment one in which racism was not addressed or denounced, but was instead tolerated?

71. The Applicant’s submissions were to the effect that Mr Anderson should have been removed from teaching Nikita’s Business Studies class, and that the School’s failure to do this demonstrated that racism was being tolerated. Whilst the Applicant agreed that Mr Anderson had apologised to her once privately, and to the class as a whole on two occasions following the incident, those apologies were not sufficient to address or renounce the racism which had occurred.

The apologies

72. Mr Anderson’s evidence was that following the incident, on the following morning, he approached Nikita privately outside the school assembly hall:

When I received the email from Nikita, I was concerned that I had upset her and for her welfare.

… I said words to the effect of:

“I apologise if offence was taken. It wasn’t meant to cause offence. Nothing was intended by it. I’m sorry if I made you feel upset, it wasn’t meant to be taken that way. Are you okay?”

…

I apologised to Nikita because she was upset, and out training is to prioritise the wellbeing of any student in our care. I was particularly conscious that Nikita was in year 12 and soon to sit her exams. I reported it to ARCO for the same reason.

73. This evidence displays a distinct lack of insight by Mr Anderson into the effect of his conduct, and a failure to recognise or take personal responsibility for making racist comments. It is a qualified apology which puts responsibility onto the victim of his conduct for their reaction. Nikita’s evidence, however, was that Mr Anderson said to her:

I’m sorry about what I said in class, it was very wrong of me – it’s good that you made me aware of this… I will apologise in the next class.

74. In cross examination Nikita agreed that at the time, she felt that Mr Anderson’s personal apology to her was sincere, but that his later apologies to the class made her reconsider its sincerity. In the circumstances the Tribunal discounts the evidence in Mr Anderson’s statement and finds that, initially at least, Mr Anderson took personal responsibility for his conduct and acknowledged the hurt or grievance felt by the Applicant. This is supported by the undisputed fact that he self-reported to Mr Minors, the ARCO, on or before 8 March 2021; the fact that he made the 3^rd apology as requested by Mr Ibrahim on 10 March 2021; and the fact that he did not dispute the findings of Mr Hallam and the warning given to him about his conduct in the correspondence of 24 March 2021.

75. Mr Anderson’s evidence of the 2^nd apology was as follows:

On or about Friday 5 March 2021, I apologised to the business studies class about what I had said during the Wednesday 3 March 2021 business studies class. Nikita was in the class. I apologised at the start of the lesson. I directed my apology to the whole class, not Nikita in particular. I did not want to focus my attention on her the entire time which might draw unwanted attention to her.

I said words to the following effect:

An incident happened at the last lesson with regards to the Video. I want to be clear that I apologise for any offence that was taken about what I said, if anyone might have been offended. If you need to speak to someone the School has services and also you can speak to me about it as well.

76. Nikita’s evidence was that:

On Friday 5 March 2021, in the business studies class, the first lesson after the incident, Mr Anderson said “sorry about last lesson”. He moved on to the next topic without any reference to what he had done or what he was apologising for.

77. In neither account does Mr Anderson take any personal responsibility for his conduct. Again, Mr Anderson’s evidence is of a qualified apology focussed on the offence taken, rather than the offensive nature of the conduct. In the circumstances we prefer Nikita’s evidence of the 2^nd apology. Nikita’s evidence that this apology made her doubt the sincerity of the 1^st apology supports this finding, as does the evidence of Mr Wolf and Mrs Wolf-Matthews of requesting a meeting with the principal to raise their concerns about the incident, and Mr Ibrahim’s evidence of what Nikita told him about the 2^nd apology.

78. Mr Anderson met with Mr Ibrahim after both the 2^nd apology and after Nikita and Mr Wolf met with Mr Ibrahim on Monday 8 March 2021. Mr Ibrahim’s evidence is that he called for Mr Anderson immediately following the meeting with Nikita and Mr Wolf, and he and Mr Burnett met with him at around 8.40am. Mr Ibrahim’s evidence is to the effect that he and Mr Burnett raised the incident with Mr Anderson and discussed with him why it was inappropriate, expressed disappointment in Mr Anderson’s conduct, and that Mr Anderson agreed, apologised, and offered to make another apology to the class. Mr Ibrahim further stated that he assisted Mr Anderson in putting together the wording of the 3^rd apology. We accept this evidence.

79. Nikta’s evidence is that on 8 March 2021, following her meeting with Mr Ibrahim and Mr Burnett:

After my dad left, the Principal and Mr Burnett sent a note calling me out of my Earth and Environment Class to go the principal’s office. They recommended I attend Mr Anderson’s class and “give it a go, even if it’s awkward”. At the beginning of class, Mr Anderson said “sorry for the comments I made last Wednesday”. He also said, “we all make mistakes, and we can learn from them” and then continued with the lesson. He did not explain that making fun of other cultures or races is wrong and could cause serious harm.

80. Mr Anderson’s evidence is:

On Monday 8 March 2021, during the business studies class a made a second apology to the class. I read out the words that were written on the paper that I had worked out with Tony. I cannot recall the exact words used. I no longer have the hand written note and cannot recall the exact words used. I do recall that I referred to “racism or racist”. It was more formal than the first apology…

Nikita was in the class at the time when I apologised. I directed my apology to the whole class, not Nikita in particular.

81. Mr Ibrahim’s evidence was that he assisted Mr Anderson with the wording of the apology, and told Mr Anderson that he had to take proper time and be clear so that the students knew what he was referring to, namely the incident and that he should say that he should know better as a teacher. We accept that Mr Anderson read out an apology to the Business Studies class on 8 March 2021 as Nikita’s evidence does not contradict this. However, in the absence of evidence as to what was, in fact, written on the paper, we make no findings as to the exact words which were used during the 3^rd apology by Mr Anderson, other than that the apology was not directed specifically at Nikita and may have referred to “race”. We accept Nikita’s evidence that Mr Anderson did not explain that “making fun of other cultures or races is wrong and could cause serious harm”.

82. In our view the apologies provided by the Respondents were insufficient to address or denounce the racial vilification which had occurred. That alone does not mean, however, that the Applicant was subjected to “a learning environment in which racism was not addressed or denounced, but was instead tolerated”.

83. The Statement of Peter James Rouse dated 12 January 2023 provides significant detail of the First Respondent’s policies including Multiculturalism, diversity and Anti-Racism, the Diversity and Inclusion Strategy 2018 – 2022, Anti-Racism Education, the requirement for all schools to have a trained ARCO, and the requirements of teacher training and policy implementation. His evidence is that “I believe the Department’s complaints procedure was followed” on the basis of his review of “the Professional and Ethical Standards referral regarding the complaint”, and his review of “the documents indicating the Principal’s handling of the complaint”. He does not attach or specifically refer to the documents which are the subject of his reviews and provides no other basis for that opinion. The Tribunal gives his evidence of their implementation little weight in the circumstances.

84. Mr Minors’ Statement dated 6 December 2022 provides some detail of his role as ARCO at Cronulla High School, the training he has undertaken, his implementation of the First Respondent’s policies and directives regarding anti-racism, and his role after the incident in supporting Nikita. He says his role as an ARCO includes, but is not limited to:

a. providing advice on incorporating whole-school anti-racism education strategies

b. facilitating professional learning to build awareness of the impact of-racism on student learning, wellbeing and social cohesion,

c. assisting teachers to access resources which build awareness and understanding of the impacts of racism;

d. promoting upstander responses to incidents of racism for staff and students,

e. addressing complaints and incidents of racism involving students through approaches such as restorative practice, which promote respectful behaviours

f. providing advice to students, staff and community members on making a complaint and the complaints handling process as it relates to complaints about racism,

g. managing or supporting the management of complaints of racism made by students against other students in accordance with the Behaviour Code for Students, the School Behaviour Support and Management Plan and wellbeing procedures,

h. providing information and support to staff, students and community members who wish to make a complaint of racism in cases where the complaint involves staff or a community member,

i. assisting the complainant during the complaints handling process, and

j. providing advice related to the impact of racism to the principal and/or nominated complaints manager.

85. Mr Minors’ evidence was that after the incident occurred, his role was to:

a. be an impartial support person to Nikita and provide support to Nikita about alleged conduct of a teacher at CHS, James Anderson;

b. provide advice relating to the impact of racism to the principal, Tony Ibrahim, as required; and

c. play a restorative role in the complaints process.

86. Mr Minors seems to have done little as ARCO in relation to the incident aside from meeting with Nikita and Nikita and Mrs Wolf-Matthews, taking down notes of those meetings, asking Nikita how she was feeling, and informing Mr Ibrahim and Mr Burnett what was discussed in those meetings. He says that he was not part of any decision making by Mr Ibrahim or Mr Burnett, and there is no evidence that he was requested by either of them to provide any advice in relation to the impact of racism, or any other matter, which formed the basis of their decisions. There is no evidence that he provided Mr Anderson with any resources or training to assist him in recognising the impact of his words and actions in the context of a racism complaint. He was not part of the process engaged in by PES in relation to the incident.

87. Mr Ibrahim’s Statement of 5 December 2022 demonstrates that there was no consideration of the impact of racism on Nikita, the Business Studies class, or other students of Cronulla High School when he made the decision not to remove Mr Anderson from the Year 12 Business Studies class following the incident. He did not ask Mr Minors for any advice in relation to the impact of racism. He relied on there being “a separate process for Mr Anderson’s conduct carried out by PES” but did not, himself, report Mr Anderson’s conduct to PES. This was done by Mrs Wolf-Matthews.

88. The outcome from PES’ consideration of “allegations of possible misconduct” against Mr Anderson was relatively minimal, and was almost entirely limited to him. Mr Ibrahim’s evidence was that “in most instances principals are not responsible for the conduct of those processes, only delivering the outcome”. There was no misconduct investigation and the warning given to him was not publicised. There was no evidence provided to the Tribunal of what, in fact, the PES considered in reaching its decision, or what alternative process should or could have been engaged to ensure students were not subjected to similar conduct in the future.

89. Removal of Mr Anderson from teaching Nikita’s Business Studies class was one possible action which would denounce and address racism and demonstrate that racism would not be tolerated. Whether or not Mr Anderson’s removal was justifiable in the circumstances, the fact remains that Mr Ibrahim did not consider the impact of racism in making that decision. The evidence demonstrates that the only thing which was done by the educational authority which had the potential to address and denounce racism and demonstrate that it would not be tolerated in that learning environment was Mr Anderson making apologies to the Business Studies class. However, on the evidence before the Tribunal, we find that the apologies given by Mr Anderson were not sufficient.

90. Even putting aside the insufficiency of the apologies, the evidence before the Tribunal demonstrates that, similar to the scenario described in ZG, despite having in place an abundance of anti-racism policies and procedures and the presence of an ARCO at Cronulla High School who provided some support to Nikita, the First Respondent failed to effectively address and denounce the racism experienced by Nikita. In the circumstances the Tribunal finds that Nikita was subjected to the detriment of a learning environment in which racism was not addressed or denounced, but was instead tolerated.

Was she subjected to the detriment because of her race?

91. Having found that Nikita was subjected to a detriment, the Tribunal must determine whether this was because of her race.

92. As discussed in the ZG Appeal at [37] to [38]:

37 The fact that the Tribunal was satisfied that the failures amounted to a detriment was insufficient to determine the matter. The Tribunal should have taken the next step and concluded that since the failures were not “on the ground of” A’s race as defined by s 7, there was no breach of s 17(2). It was not sufficient to find that the comments themselves were racist, because the students are not liable for discrimination under the AD Act. A finding of discrimination on the ground of race is one of significantly different magnitude from one of an inadequate response to racial harassment carried out by students. Applying the Tribunal’s findings to the provisions of the AD Act, the Tribunal should also have dismissed this part of the complaint as it found that it did not constitute direct race discrimination as defined by s 7 of the AD Act.

Suggested amendment

38 The way that s 17(2) is presently drafted, there will be no contravention where teachers simply fail to respond adequately to racist behaviour among students. The failure to respond adequately needs to be “on the ground of” the student’s race for it to be unlawful. Taken to its logical extreme, this means that an educational authority will not be in breach of the AD Act if it fails to provide any response to racist behaviour among students. Similarly, if it provides the same response regardless of the race of the students concerned, it will be very difficult to prove that that response was “on the ground of” race. To remedy this situation, the AD Act would need to be amended to make racial harassment unlawful, just as it makes sexual harassment unlawful.

93. Unfortunately the Act has not been amended as suggested by this Tribunal in the ZG Appeal. The evidence in these proceedings does not demonstrate that the detriment to which the Applicant was subjected was done to her because of her race. In those circumstances, the Applicant has failed to prove causation, and the discrimination is not unlawful within the meaning of s 17(2)(b) of the Act.

Compliance with a requirement or condition

94. In circumstances where causation is not proven in relation to s 17(2)(b) of the Act, there seems little utility in the Tribunal considering whether the elements of indirect discrimination pursuant to s 7(1)(c) of the Act are made out. Nevertheless, we do so for completeness.

95. As the Applicant relies on indirect discrimination only, differential treatment to another individual and the identification of a comparator (whether real or hypothetical) is not necessary. Instead, she needs to demonstrate that the discrimination had the effect of requiring her to comply with a requirement or condition because of her race, which she was unable to comply with, and with which the majority of people not of her race would have been or were able to comply.

96. Through her former solicitors, the Applicant defined the requirement or condition as “the educational authority required that Nikita continue to be taught and/or supervised by Mr Anderson”. However, as submitted by the Respondents, this is not a condition or requirement with which an entire group must comply. It is limited to Nikita. A better definition of the condition or requirement imposed would be “the educational authority required students assigned to a particular teacher’s class to remain in that class”.

97. The Respondent submitted that Nikita was not required to attend Mr Anderson’s class, only “encouraged” to do so. Mr Ibrahim’s evidence is that he “encouraged” her to attend despite her discomfort, and this was confirmed in his email to PES on 8 March 2021. The Tribunal finds that in circumstances where Mr Ibrahim, as Nikita’s School Principal, “encourages” her to attend a class despite her discomfort, she would likely have viewed this as a requirement. The evidence therefore demonstrates that the requirement that “students assigned to a particular teacher’s class, remain in that class” is correct in relation to the class on 8 March 2021 which Nikita attended, despite her expressed discomfort.

Whether a substantially higher proportion of persons, not of her race, comply or can comply with that requirement or condition

98. The Applicant’s evidence did not specifically address the question of whether a substantially higher proportion of persons not of Nikita’s race could comply with the requirement or condition that “students assigned to a particular class remain in that class”. This could, however, be inferred from her evidence to the extent that no other students in the class were of Indian racial origin, and there is no evidence of other students seeking to be transferred out of Mr Anderson’s Business Studies class. The Tribunal makes this finding based on inference.

Was Nikita’s inability to comply with the requirement or condition because of her race?

99. The Applicant’s evidence is that Nikita was uncomfortable, distressed and did not want to remain in Mr Anderson’s class because of the racial vilification and detriment to which she was subjected.

100. The Applicant submitted:

The fact that Nikita couldn't stay in a class after she was subjected to such open disparagement is because of her Indian race and that she could not be in such an environment and be subjected to such disrespect of her race. The rest of the class, however, who were not of Indian race carried on in the business class and could comply - they didn't have to move to the library and have their classes disrupted as Nikita's classes were. … to require her to go back to the business class is a disregard of her stress and discomfort and is a direct way to discriminate against a student who has clearly stated that "it won't ever be back to normal, and I do not feel it will ever drop to zero".

101. Section 7(1)(c) requires that “the aggrieved person does not or is not able to comply”. The evidence demonstrates that Nikita did not comply with the requirement or condition to remain in the particular class to which she was assigned, because of her race.

Whether the requirement was reasonable, having regard to the circumstances of the case.

102. The Respondent submitted that:

Mr Ibrahim had a number of reasons why he did not accede to the Applicant’s parents’ insistence that instead of the Applicant transferring to an equivalent Business Studies Class to continue her face-to-face learning, the Second Respondent should be removed from teaching the Applicant’s Business Studies Class, and another teacher instead appointed to teach the Second Respondent’s class for the remainder of the year. Mr Ibrahim’s decision took into consideration operational and wellbeing matters in the context of the functions and organisation of the school, in compliance with the First Respondent’s usual policies. These included the impact on other students in the Second Respondent’s Business Studies class, and that the Applicant was able to attend an equivalent class taught by a teacher that she liked and was comfortable with, during a period that was a free period and thus constituted no detriment to the Applicant. Accordingly, the action of the First Respondent was justifiable and reasonable in the circumstances.

103. The requirement or condition is one imposed by the educational authority, not one requested by the Applicant. In relation to the requirement that students assigned to Mr Anderson’s class remain in that class, the Tribunal finds on the evidence before it that this was not reasonable in the circumstances, being the racial vilification and detriment to which Nikita was subjected.

104. Accordingly the Tribunal finds that Nikita was subjected to indirect discrimination by being required to attend Mr Anderson’s Business Studies class on 8 March 2021.

105. However, because there is no causal link between the detriment to which Nikita was subjected and her race, this indirect discrimination was not unlawful pursuant to s 17(2)(b) of the Act.

Remedy

106. The Applicant claimed the following as remedy for the discriminatory conduct:

Orders

18. If the Tribunal finds that the complaint is substantiated in whole or in part, the plaintiff seeks;

a. an order that the Secretary, Department of Education, in conjunction with the plaintiff, develop and implement a program or policy aimed at eliminating unlawful discrimination (Anti-Discrimination Act, s 108(2)(e)) including by:

i. critically reviewing the implementation of the Department’s anti-racism policy;

ii. promoting further awareness of the Department’s anti-racism policy and the provisions of the Anti-Discrimination Act in their application to schools; and

iii. developing and implementing a complaints management procedure that actively supports complainants by requiring educational authorities to investigate and devise options for complainants to minimise contact with perpetrators of racism or racial prejudice, including while a complaint is being investigated.

b. an order that the Secretary, Department of Education and Mr Anderson publish an apology, the form and content of which is to be agreed with the plaintiff (Anti-Discrimination Act, s 108(2)(d));

c. in the alternative to [18(b)] above, the Secretary, Department of Education make a public statement about the Tribunal’s findings and/or decision in this case, in terms agreed with the plaintiff or determined by the Tribunal (Anti- Discrimination Act, s 108(2)(c)).

19. If the Tribunal finds that the complaint is substantiated in whole or in part, the plaintiff also seeks an order as to costs (Civil and Administrative Tribunal Act 2013 (NSW), s 60(2)).

107. The Respondents submitted that the Applicant has not established that she has suffered any loss or damage, and the Tribunal should decline to take further action pursuant to section 108(2)(g) of the Act.

108. Orders under the Act are designed not as punishment or sanction, but to remedy the effect of the Respondents’ conduct: Burns v Radio 2UE Sydney Pty Ltd & Ors (No 2) [2005] NSWADT 24 at [3]. Whether a complainant has suffered "personal damage, loss or harm" may be relevant to whether the power to order an apology should be exercised, but it is not a pre-condition to its exercise: Burns v Sunol (No 2) [2017] NSWCATAD 236 at [9].

109. The Tribunal accepts the Applicant’s evidence that the Second Respondent’s conduct in racially vilifying Indian people caused her stress, discomfort, awkwardness, embarrassment and hurt. We also find that the racial vilification caused her to be unable to remain in Mr Anderson’s Business Studies class, necessitating her attending the Library for two lessons on 9 and 10 March 2021 before being moved to Mr Burnett’s Business Studies class, and that this amounted to a disruption in her studies and schooling during her HSC year. The Applicant has thereby established loss or damage caused by the Respondents’ conduct.

110. The Tribunal’s power to make an order under s 108(2)(e) is enlivened by our finding of racial vilification. The Applicant submitted:

The department's actions or lack of it are not reasonable nor justifiable as the fact that such conduct goes on, with no check as the students have described is why this must occur in the first place. With proper measures in place anyone acting out of line will have to think twice before behaving against the department's policies. However, weak measures send a weak message and students' classes are disrupted and reputations damaged. Everyone is impacted and this will go on if it's given the backing of the law, it must be eliminated from society and the best place to start is the classroom for the benefit of the community and public of which students are a part and the public themselves. … the record needs to be set straight finally in the interests of student welfare and then actively put into practice, so every teacher understands that they are in an influential role with impressionable students, representing the system, the department and the educational goals should be achieved respectfully as promised.

The very fact that rectification has to be sought outside the school, passed on to ADNSW where it should have been addressed but instead was completely turned down reflects the lack of in-school measures and programs suited to understand challenges and problems from their students/minors' perspective rather than putting them through complex procedures beyond their reach, that is lengthy and overwhelming and doesn't take in all aspects of a situation.

If the department genuinely hopes to address these matters then remedial procedures that are simple for students to receive, where they can speak up without repercussions, and freely seek open communication with a male and female ARCO or teams specifically made up of e.g. students of their age/ex-students who understand their challenges and can provide assistance and guidance that is easily available in an independent cooperation that is more effective in promoting multicultural environments and understanding.

111. Respondents submitted that the First Respondent already had a program or policy aimed at eliminating unlawful discrimination in place, and there was therefore no utility in making such an order:

These already exist and are regularly reviewed and updated, and there is evidence they are operating effectively:

a)   The evidence of Mr Rouse sets out the comprehensive framework of policies and accompanying mandatory training specifically in respect of eliminating racial discrimination, including the Multicultural Education Policy and Anti-Racism Policy, and Anti Racism Education procedure developed specifically to facilitate the implementation of the Anti-Racism Policy. The Anti-Racism Policy expressly incorporates the principles of the NSW Anti-Discrimination Act. The Anti-Racism Education procedure addresses matters such as Indicators of Racism (including non-inclusive teaching practices such as using examples or resources that reinforce racial stereotypes, stereotyped views and unconscious bias), the impacts of racism, measures to counter racism in schools, the requirement for all staff to complete mandatory Anti-Racism Policy training, obligations of teachers, the role of ARCOs, and managing complaints of racism.

b)   Mr Rouse’s evidence was that these policies are not a situation of ‘set and forget’, but are already regularly reviewed and updated by the Department The Anti-Racism Policy and Anti-Racism Education procedure were implemented in December 2005 and were updated most recently in October 2022.

c)   The Department is committed to preventing and addressing racism. This is reflected in the mandatory nature of the training for all teachers, and the appointment and training of Anti-Racism Contact Officers in every school. After onboarding training, it is mandatory for all Department staff (including teachers) to undergo further Anti-Racism training every two years. Mr Anderson attended the mandatory anti-racism training. The content of that training includes an understanding of the policy and its links to the NSW Anti-Discrimination Act, what racism is and its impact, countering racism and managing complaints of racism. All staff includes all Department staff and is not limited to teachers and principals.

61.   In summary, the Department has in place policies to prevent and address racism in Schools. This does not mean the Department can completely eradicate racism in its schools or the community. However, the Department has procedures in place to ensure there is anti-racism education and awareness to eliminate racism as much as possible, and a complaint procedure to address incidents when they occur. It is erroneous to conclude, as the Applicant appears to do, that if any inappropriate comment is made, the Department’s policies, statements, values and implementation must therefore be deficient. This is incorrect.

112. We agree with the Respondent’s submissions on the basis of Mr Rouse’s evidence, which was not challenged by any evidence provided by the Applicant. Accordingly, the Tribunal declines to make an order pursuant to s 108(2)(e) of the Act.

113. With respect to the order sought under s 108(2)(d) for the publication of an apology, the Applicant submitted:

An apology will serve no purpose if it is not with understanding of what needs to change and occur.

…

An apology is not only meant for the person's wronged but speaks volumes about the giver of the apology. If done with sincerity to rectify, reflects on the ideals upheld by the giver in this case the teacher/school/department

With ridiculing a whole nation and their educators, their teaching and accent to students, should have required the Principal/Vice Principal/ARCO to speak to the class immediately and decry that negative message and conditioning and further such steps. Making insincere apologies and carrying on as normal sends the wrong message on what should be prioritised - the purpose of an education is wasted if it is devoid of respectability. A strong stance against the wrongful message of the teacher shows the respectful attitude of the persons, country, department, culture and the zero tolerance to it. That shows students and teachers that you as a department mean business and they will be disciplined, and inflammatory conduct will have consequences, which should be a deterrent as opposed to bringing in a law to endorse and explain the rationale behind why its offensive but not unlawful. This is an encouragement and doesn't put you as a department in good light…

114. Respondents submitted that there had been multiple attempts by the Second Respondent to apologise to the Applicant and there was therefore no utility in such an order.

115. In Wotton v State of Queensland (No 5) [2016] FCA 1457, (2016) 352 ALR 146 at [1550]- [1597] Mortimer J (as she then was) provided a comprehensive review of the power to order an apology. Her Honour’s analysis included:

[1550] The applicants seek a specific kind of apology. They submit such an apology is necessary because “the Applicants’ damage has been prolonged and exacerbated” by the absence of such an apology….

[1551] Separately, the applicants submit an apology would acknowledge the community’s grievances and allow the community to move on….

…

[1553] … while the power to order an apology is not in doubt, courts have generally been reluctant to exercise that power … in Jones v Scully [2002] FCA 1080; 120 FCR 243 at [245] that “the idea of ordering someone to make an apology is a contradiction in terms”. That observation has some force and it has been followed in a number of other decisions of this Court to which the parties did not refer. In Jones v Toben [2002] FCA 1150; 71 ALD 629, Branson J said (at [106]) that “I do not consider it appropriate to seek to compel the respondent to articulate a sentiment that he plainly enough does not feel”. In Jones v The Bible Believers’ Church [2007] FCA 55, Conti J similarly said (at [65]) that such an order would be “inappropriate”.

[1554] All three of those cases dealt with claims of offensive behaviour based on race arising under s 18C of the RDA, but the approach taken by Hely J in Jones v Scully has also been followed in cases dealing with other types of discrimination. In Forest v Queensland Health [2007] FCA 1236, which dealt with disability discrimination, Collier J expressed the view (at [13]) that “a court-ordered apology serves little purpose”. The Full Court allowed an appeal from her Honour’s decision in Queensland v Forest [2008] FCAFC 96; 168 FCR 532 without reference to her Honour’s comments regarding an apology. In Poniatowska v Hickinbotham [2009] FCA 680, a sex discrimination case, Mansfield J expanded on the view that an ordered apology might be inappropriate, focusing on whether such an order would go further than was necessary to “recognise” wrongdoing and whether it would result in an apology that lacked sincerity (at [324]-[325])…

[1584] Drawing these authorities together, I consider that in the current proceeding the critical question is whether a court-ordered apology is an act which the Court is satisfied would redress damage suffered by the applicants. Whether more appropriate methods of achieving that redress are available is also relevant.…

[1589] The need for an apology, and the nature of any apology, as Mr Ralph implies, is context dependent. In any context, an apology is a way of recognising wrongdoing (large or small, moral, personal, social, public or legal) and acknowledging hurt and grievance caused or felt in others because of that wrongdoing. An apology is intended, as Mr Ralph said, to be a step towards healing. Or, as the Constitutional Court put it in Le Roux, a step towards reconciliation.

[1590] It may well be the case that the observations made in cases such as Jones v Scully and Eatock v Bolt are apposite for controversies which arise between private parties. If an apology is seen as some kind of admission of personal responsibility or wrongdoing, or a statement of personal regret, then in a dispute between private individuals (or entities) it may well be inappropriate to force an individual to say something she or he does not really mean. Between private individuals, sincerity has a different and more immediate quality, in the sense of an individual taking personal responsibility for wrongdoing and acknowledging hurt or grievance caused to or felt by others…

[1596] Another option I am prepared to consider is that an order be made for the Commissioner to make a public statement about the Court’s findings in this case in lieu of an apology, but to be published in the same way as the apology would have been published. The statement could be in similar form to that ordered in Eatock v Bolt (No 2), adapted to the circumstances of this case.

116. We accept that Mr Anderson made three separate apologies in relation to his conduct, being the 1^st, 2^nd and 3^rd apology. We also accept that Mr Ibrahim apologised to the Applicant. In our view it does not matter whose version of words in relation to each of the apologies is accepted. The undisputed evidence is that the Applicant was not and is not satisfied with those apologies. In our view the apologies did not have the desired or necessary effect, which was to acknowledge the harm caused by Mr Anderson’s words and conduct to Nikita, and to counteract the racial vilification – the incitation by Mr Anderson to the students in his Business Studies class to engage in serious contempt and severe ridicule of Indian people.

117. The Applicant submitted:

Next, we were faced with the matter in Mr. Andersons class, however, this was not a matter we could just bear and overlook because of the gravity of it with so many young, impressionable students to whom prejudicial ideas were being given. It needed to be addressed and couldn't be taken so lightly. Unfortunately, the principal didn't try to understand what we were trying to explain should happen to send a strong message to the teacher and the students that such conduct will not be tolerated, so that it is never repeated or considered normal to degrade other races.

…

There were apologies, then denials, altered statements then retractions and so on, invalidating any remorse or apology and mostly the heightened understanding that this needs to be eradicated from schools.

…

…Countermeasures need to be taken as one can't just wait to see how these prejudicial ideas grow and manifest itself and neither can it be assumed that it will not lead to hate or further scorn, especially having been endorsed by the teacher and further found acceptance by the school in his continuing to teach, giving students the wrong idea and setting a very poor precedent in a class full of impressionable students, who also need to be protected from the wrongful ideas on ridiculing others based on race that has received approval from their mentors.

118. The Respondents submitted that it was not appropriate to order that the Applicant is to agree to, and thus determine, the form and content of a published apology or public statement as sought in the orders. We agree that s 108(2)(d) of the Act provides that it is the Tribunal that gives directions in an apology order concerning the time, form, extent and manner of publication.

119. In our view the time has passed in which the Respondents could counteract the racial vilification by Mr Anderson with an apology. The Year 12 Business Studies class in which Nikita was a student and in which the conduct occurred has graduated, and the education of Nikita and her classmates is no longer the responsibility of the First Respondent. Nevertheless, we believe there could be some utility in the First Respondent issuing an apology to Nikita for the harm caused to her, in circumstances where no apology has yet been given by the First Respondent to Nikita. This would go some of the way to redressing the harm caused to Nikita by the First Respondent, which accepted it was vicariously liable for the Second Respondent’s conduct. This apology should be issued forthwith, in written form addressed to the Applicant, from the First Respondent, acknowledging the Tribunal’s findings of racial vilification and the harm caused to Nikita.

120. Section 108(2)(c) of the Act allows the Tribunal to order the Respondents to perform “any reasonable act or course of conduct to redress any loss or damage suffered by the complainant”. In Eatock v Bolt (No 2) [2011] FCA 1180 Bromberg J stated at [15] – [16]:

I indicated in my earlier reasons for judgment that I held the preliminary view that an order should be made by the Court requiring HWT to publish what I called a corrective notice. I identified at [466] four purposes which such an order would serve to facilitate. Those purposes are:

- redressing the hurt felt by those injured;

- restoring the esteem and social standing which has been lost as a consequence of the contravention;

- informing those influenced by the contravening conduct of the wrongdoing involved; and

- helping to negate the dissemination of racial prejudice.

Similar purposes were relied upon by the Canadian Human Rights Tribunal when considering remedies under an Act which proscribed communications likely to expose a person to hatred or contempt by reason of race: see Citron v Zundel (2002) 41 CHRR D/274 (CHRT) at [300]-[301], referred to by Branson J in Jones v Toben [2002] FCA 1150 at [111].

121. Taking into account the purpose of a public statement or publication of a corrective notice as described in Eatock v Bolt (No 2), in our view an appropriate remedy would be for the First Respondent to publish a statement pursuant to s 108(2)(c) which acknowledges the Tribunal’s findings, with specific reference to Nikita, racial vilification, Mr Anderson and the Cronulla High School Year 12 Business Studies Class in 2021, and that an apology has been issued to Nikita from the First Respondent. In our view this is a reasonable act which could effectively redress the harm caused to Nikita by the Respondents’ racial vilification, restore any esteem which has been lost by her as a consequence of the contravention, inform those who may have been influenced by the contravening conduct of the wrongdoing involved, and help to negate the dissemination of racial prejudice.

122. On a preliminary view, a media release from the First Respondent would satisfy these purposes, however, the exact form, content, and manner of publication of this statement should appropriately be the subject of submissions by the parties, following which the Tribunal will make final orders.

Orders

1. The Applicant’s complaint of racial vilification is substantiated.

2. The remainder of the Applicant’s complaint is dismissed.

3. The First Respondent is to issue the Applicant with an apology forthwith, in written form addressed to the Applicant, acknowledging the Tribunal’s findings of racial vilification and the harm caused to her.

4. The parties are to provide the Tribunal with an agreed draft Statement for publication in accordance with these reasons for decision within 14 days. If no agreement is reached, the parties are to provide the Tribunal with submissions as to the exact form, content and manner of publication they each propose, within 21 days of the publication of these reasons for decision.

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

Registrar

Decision last updated: 01 August 2023