FEDERAL COURT OF AUSTRALIA Lina Obieta v New South Wales Department of Education and Training and Ors [2007] FCA 86 DISCRIMINATION – racial discrimination – sex discrimination – victimisation – vicarious liability – credit of applicant Held: Application dismissed. Human Rights and Equal Opportunity Act 1986 (Cth) Racial Discrimination Act 1975 (Cth) Sex Discrimination Act 1984 (Cth) Aboriginal Legal Rights Movement Inc v South Australia and Another (No1) (1995) 64 SASR 551, referred to Baird and Others v Queensland (No 1) (2005) 224 ALR 541, referred to Bropho v Human Rights and Equal Opportunity Commission and Another (2004) 135 FCR 105, cited Commonwealth v McEvoy and Another (1999) 94 FCR 341, cited Cooke v Plauen Holdings [2001] FMCA 91, referred to Cooper v Human Rights and Equal Opportunity Commission and Another (1999) 93 FCR 481, referred to Creek v Cairns Post Pty Ltd (2001) 112 FCR 352, cited Damiano and Another v Wilkinson and Another [2004] FMCA 891, cited Elliott v Nanda and Another (2001) 111 FCR 240, cited Gerhardy v Brown (1985) 159 CLR 70, referred to Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615, referred to In Marriage of Lindsey (1995) 128 FLR 46, referred to Kelly-Country v Beers and Another (2004) 207 ALR 421, referred to Lina Obieta v Human Rights and Equal Opportunity Commission [2006] FCA 1684, referred to Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission and Another (1998) 91 FCR 8, considered Microsoft Corporation and Another v Marks (No 1) 1996 69 FCR 117 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Others (1992) 110 ALR 449, followed Purvis v New South Wales (Department of Education and Training) and Another (2003) 202 ALR 133, considered Rejfek and Another v McElroy and Another (1965) 112 CLR 517, referred to Shaikh v Campbell & Nivona Pty Ltd [1998] HREOCA 13, cited Sharma v Legal Aid (Qld) [2002] FCAFC 196; (2002) 115 IR 91, cited Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44, cited Tasmanian Wilderness Society Inc and Others v Fraser and Others (1982) 153 CLR 270, referred to Toben v Jones (2003) 129 FCR 515, cited Victoria v Macedonian Teachers' Association of Victoria Inc and Another (1999) 91 FCR 47, referred to Waters and Others v Public Transport Corporation (1991) 173 CLR 349, cited LINA OBIETA v NEW SOUTH WALES DEPARTMENT OF EDUCATION AND TRAINING, NSW VOCATIONAL EDUCATION AND TRAINING ACCREDITATION BOARD, TAFE NSW SYDNEY INSTITUTE, DAVID NORMAN, ALEXIE DAVIS AND RYISSA FOGARTY NSD 631 OF 2006 COWDROY J 7 FEBRUARY 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 631 OF 2006 BETWEEN: LINA OBIETA Applicant AND: NEW SOUTH WALES DEPARTMENT OF EDUCATION AND TRAINING First Respondent NSW VOCATIONAL EDUCATION AND TRAINING ACCREDITATION BOARD Second Respondent TAFE NSW SYDNEY INSTITUTE Third Respondent DAVID NORMAN Fourth Respondent ALEXIE DAVIS Fifth Respondent RYISSA FOGARTY Sixth Respondent JUDGE: COWDROY J DATE OF ORDER: 7 FEBRUARY 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the costs of each respondent. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 631 OF 2006 BETWEEN: LINA OBIETA Applicant AND: NEW SOUTH WALES DEPARTMENT OF EDUCATION AND TRAINING First Respondent NSW VOCATIONAL EDUCATION AND TRAINING ACCREDITATION BOARD Second Respondent TAFE NSW SYDNEY INSTITUTE Third Respondent DAVID NORMAN Fourth Respondent ALEXIE DAVIS Fifth Respondent RYISSA FOGARTY Sixth Respondent JUDGE: COWDROY J DATE: 7 FEBRUARY 2007 PLACE: SYDNEY INDEX page number INTRODUCTION I SUMMARY OF FACTS II SPECIFIC ISSUES COMPLAINTS AGAINST MR NORMAN 1. 'Blue eyed – Brown eyed' incident 2. Award of low marks 3. Reference to hostile people 4. Refugee allegation 5. Afghani Detainee 6. Reference to shoes of Imelda Marcos 7. Centrelink allegation 8. Roll call allegation 9. Failure to mark fairly 10. Fast dictation 11. Gay incident 12. Allegations of sexual discrimination Victimisation 13. Writing on the board 14. Costs agreement 15. Date of course ending 16. More favourable treatment for Ms Ramos 17. Approach of Mr Norman to Ms Obieta 18. Credit/distinction 19. Throwing of examination papers 20. Cheezels Incident COMPLAINTS AGAINST MS ALEXIE DAVIS 16. Wrong name called in class 20. The Cheezels incident 21. Mimic of a duck or chicken 22. Verbal behaviour of Ms Davis 23. Allegations of tutoring 24. Apprehension of bullying 25. Claim in relation to unnamed Asian student COMPLAINTS AGAINST MS FOGARTY AND MRS ELFERT 26. Interference with right to ask questions COMPLAINTS AGAINST 'AUSTRALIAN STUDENTS' 27. Victimisation by students COMPLAINTS AGAINST MRS ELFERT 28. Misleading information provided by Mrs Elfert COMPLAINT AGAINST MS ILLINGWORTH 29. Failure to comply with agreement to have test independently reviewed and re-marked COMPLAINT AGAINST MR STEWART 30. Discrimination in provision of services COMPLAINTS AGAINST MS ILLINGWORTH 31. Grades of other students 32. Mr Stewart was not an assessor 33. Denial of access to interview records and grades 34. Request for the removal of the word 'Deferred' on test results COMPLAINT AGAINST MS CONNELLAN 35. Refusal by Ms Connellan to supply Transcript of Record COMPLAINT AGAINST MR HASSETT 36. Less favourable treatment COMPLAINT AGAINST TAFE 37. Failure to act on complaints against Mr Norman COMPLAINTS AGAINST VETAB 38. Failure to undertake audit of Students' records 39. Vicarious liability of VETAB 40. VETAB not providing remedy to complaints COMPLAINT AGAINST MRS ELFERT 41. Complaint to Ms Illingworth concerning Mrs Elfert's failure to provide information relating to the examination COMPLAINT AGAINST TAFE 42. Failure to obtain diploma COMPLAINT AGAINST DEPARTMENT OF EDUCATION AND TRAINING AND VETAB 43. Failure to take appropriate action COMPLAINTS AGAINST TAFE 44. Failing to take appropriate action 45. victimisation in relation to exclusion from supplementary exams 46. No offer to sit supplementary exams 47. TAFE did not award Diploma 48. TAFE did not award Diploma and hindered career opportunities III RELEVANT LEGAL PRINCIPLES Racial Discrimination Sexual Discrimination, sexual harassment and victimisation IV CREDIT V FINDINGS COMPLAINTS AGAINST MR NORMAN 1. 'Blue eyed – Brown eyed' incident 2. Award of low marks 3. Reference to hostile people 4. Refugee allegation 5. Afghani Detainee 6. Reference to shoes of Imelda Marcos 7. Centrelink allegation 8. Roll call allegation 9. Failure to mark fairly 10. Fast dictation 11. Gay incident 12. Allegations of sexual discrimination Victimisation 13. Writing on blackboard/white board 14. Costs agreement 15. Date of course ending 16. More favourable treatment for Ms Ramos 17. Approach of Mr Norman to Ms Obieta 18. Credit/distinction 19. Throwing of examination papers 20. Cheezels Incident COMPLAINTS AGAINST MS ALEXIE DAVIS 16. Wrong name called in class 20. The Cheezels incident 21. Mimic of a duck or chicken 22. Verbal behaviour of Ms Davis 23. Allegations of tutoring 24. Apprehension of bullying COMPLAINTS AGAINST MS RYISSA FOGARTY 26. Interference with the right to ask questions COMPLAINTS AGAINST AUSTRALIAN STUDENTS 27. Allegations of victimisation by students COMPLAINT AGAINST MRS SUSAN ELFERT 28. Misleading information provided by Mrs Elfert COMPLAINTS AGAINST MS NEREDA ILLINGWORTH 29. Failure to comply with agreement to have test independently reviewed and re-marked COMPLAINT AGAINST MR STEWART 30. Discrimination in provision of services COMPLAINT AGAINST MS ILLINGWORTH 31. Grades of other students 32. Mr Stewart was not an assessor 33. Denial of access to interview records and grades 34. Request for the removal of the word 'Deferred' on test results COMPLAINTS AGAINST MS CONNELLAN 35. Refusal by Ms Connellan to supply transcript of record COMPLAINT AGAINST MR HASSETT 36. Less favourable treatment COMPLAINT AGAINST TAFE 37. Failure to act on complaints against Mr Norman COMPLAINT AGAINST VETAB 38. Failure to undertake audit of students' records 39. Vicarious liability of VETAB 40. VETAB not providing remedy to complaints COMPLAINT AGAINST MRS ELFERT 41. Complaint to Ms Illingworth concerning Mrs Elfert's failure to provide infromation relating to the examination COMPLAINT AGAINST TAFE 42. Failure to obtain diploma COMPLAINT AGAINST THE DEPARTMENT OF EDUCATION AND TRAINING AND VETAB 43. Failure to take appropriate action COMPLAINTS AGAINST TAFE 44. Failure to take appropriate action 45. Victimisation in relation to exclusion from supplementary exams 46. No offer to sit supplementary exams 47. TAFE did not award diploma 48. TAFE did not award diploma and hindered career opportunities VICARIOUS LIABILITY CLOSING SUBMISSIONS CONCLUSION INTRODUCTION 1 In these proceedings the applicant ('Ms Obieta'), a former student at TAFE Sydney Institute, Ultimo ('TAFE') claims relief in respect of conduct allegedly committed by her teachers, fellow students, TAFE and the Vocational Education and Training Accreditation Board ('VETAB'). Ms Obieta claims that such conduct was unlawful as it constituted breaches of the Racial Discrimination Act 1975 (Cth) ('the RDA'), the Sex Discrimination Act 1984 (Cth) ('the SDA') and against Human Rights and Equal Opportunity Commission Act 1986 (Cth) ('the HREOC Act'). 2 TAFE is an organisation within the NSW Department of Education ('the Department'). VETAB is a body corporate which was constituted by the now superseded Vocational Education and Training Accreditation Act 1990 (NSW) (see now: Vocational Education and Training Act 2005 (NSW)). I SUMMARY OF FACTS 3 In 2003–2004 Ms Obieta was enrolled at the TAFE Sydney Institute, Ultimo undertaking a two year part time course known as the Diploma of Business-Legal Services. Although no cause for complaint arose in 2003, during May of 2004 Ms Obieta made allegations with respect to the conduct of her course, and against Mr David Norman, her teacher. Such complaints were made only after Ms Obieta received a grading of credit in her examination. She claimed that she was entitled to a mark entitling her to the grade of distinction. Her allegations against other teachers arose in consequence of their refusal to accede to her demands for higher marks to qualify her for a distinction. Her complaints against TAFE, VETAB and the Department were made following her dissatisfaction with the rejection by them of the complaints against her teachers and the administration. 4 On 24 May 2004 Ms Obieta had raised matters of complaint concerning the alleged conduct of Mr Norman with the Head Teacher, Business Administration and Technology, Ms Nereda Catherine Illingworth. Those issues concerned not only the alleged conduct of Mr Norman in the classroom but also raised a complaint alleging discrimination based upon Ms Obieta's assertion that she was deliberately awarded poor results for her examination work. 5 On 7 June 2004 Ms Illingworth interviewed Ms Obieta in the presence of Ms Ellen Margaret Lawson, Head Teacher of Business Administration, and Mr Norman. Ms Obieta claims that at this meeting Ms Lawson prevented her from speaking. Ms Obieta complained that she had not been awarded correct marks for her examination. She also claimed that Mr Norman discriminated against her in class as detailed in the issues discussed hereunder. 6 Ms Illingworth requested that Mr Norman provide an apology in respect of statements made in a class discussion which Ms Obieta claims were discriminatory. During this meeting, and in an attempt to resolve their differences, Mr Norman agreed to provide an apology for any misunderstanding arising out of the class discussion. However whether the apology was to be given to the class, or to Ms Obieta, is a matter in issue. An apology was provided, as detailed in the issues, which Ms Obieta claims did not accord with the agreement. 7 Ms Illingworth also arranged for Ms Obieta's examination paper to be reassessed by Mr William Stewart, a teacher in the Business Administration and Technology teaching section of TAFE. On 29 July 2004 another meeting was held convened by Ms Illingworth. Present at that meeting was Ms Obieta, Ms Illingworth, Ms Lawson and Mr Stewart. Ms Clifton, another Head Teacher, arrived later. By the date of this meeting, Mr Stewart had re-marked Ms Obieta's examination paper, as well as the examination papers of all other students in Ms Obieta's class, except one. Mr Stewart increased the marks of Ms Obieta by 2%, which made no difference to her grade of 'credit'. Ms Obieta demanded a distinction, but Mr Stewart explained that he was unable to justify the award of the additional marks necessary for Ms Obieta to achieve such grade. 8 During that meeting Ms Obieta complained that Ms Illingworth, Ms Lawson and Mr Stewart had racially and sexually discriminated against her. Ms Obieta also claimed that Mr Stewart was not a qualified assessor to re-mark her paper. 9 Ms Obieta then complained to Ms Terri Connellan, Assistant Director, Educational Programs of TAFE concerning the conduct of Mr Norman, Ms Illingworth, Ms Lawson and Mr Stewart. As Ms Conellan was absent on leave at that time, Mr Peter Hassett, Chief Education Officer of TAFE reviewed Ms Obieta's complaints. 10 In relation to the reassessment of Ms Obieta's assignment, Mr Hassett satisfied himself that TAFE's Review of Results Policy had been followed. On 11 August 2004 he informed Ms Obieta that following his investigation he believed that the review process was carried out in an equitable manner and that the amendments suggested by Mr Stewart to the original marks granted should be accepted. On 26 August 2004 Ms Obieta responded complaining that Mr Norman continued to be unpleasant and intimidating towards her. 11 Ms Connellan had tried unsuccessfully to contact Ms Obieta on 2 and 3 September 2004 requesting Ms Obieta to contact her. In the absence of any reply Ms Connellan wrote to Ms Obieta on 8 September 2004. Such letter requested that Ms Obieta telephone Ms Connellan's assistant to arrange a suitable time to meet with a view to resolving her issues. No response was received. On 20 September 2004 Ms Connellan contacted VETAB to advise that she could take no further action because of the absence of communication from Ms Obieta. 12 Thereafter Ms Obieta wrote to Margaret Anne Willis, Director of Quality Assurance Services of the NSW Department of Education and Training, complaining of her treatment by Ms Connellan and reiterating the complaints against her teachers. Having reviewed the complaints of Ms Obieta and the conduct by the Officers of TAFE in the review of the complaint, Ms Willis wrote to Ms Obieta on 4 February 2005 stating that VETAB had conducted an investigation of her complaint and was satisfied with the way in which TAFE had managed it. 13 Ms Obieta thereafter referred the conduct of Mr Norman, TAFE and VETAB to the Human Rights and Equal Opportunity Commission ('the Commission'). 14 Ms Obieta instituted these proceedings nominating the Commission as the first respondent. However, Ms Obieta later instituted separate proceedings against the Commission (see Lina Obieta v Human Rights and Equal Opportunity Commission [2006] FCA 1684) and the Court ordered that the Commission be removed as first respondent to these proceedings. 15 The fifth and sixth respondents were fellow students of Ms Obieta. Ms Obieta has alleged that they engaged in conduct which was unlawful pursuant to the SDA, RDA and the HREOC Act. 16 A section entitled 'Specific Issues' considered hereunder contains details of the 48 issues raised by Ms Obieta of alleged discrimination, harassment and victimisation under the RDA and SDA. It follows the same order as contained in the Statement of the Precise Matters raised against each respondent contained in Ms Obieta's submissions filed on 16 June 2006. Such document was prepared in response to the Court's direction that Ms Obieta provide a list of precise matters upon which she relied and the sections of the relevant legislation which she claimed were breached. 17 Some of the alleged breaches refer to definition or explanatory sections, which cannot give rise to a cause of action. Accordingly the Court will make no reference to the alleged breaches of such sections. Further, no cause of action can arise from an alleged breach of an International Convention as claimed by Ms Obieta (see Tasmanian Wilderness Society Inc and Others v Fraser and Others (1982) 153 CLR 270 at 274 per Mason J). Accordingly the Court will similarly not refer to articles of International Conventions which Ms Obieta claims have been breached. II SPECIFIC ISSUES COMPLAINTS AGAINST MR NORMAN 1. 'Blue eyed – Brown eyed' incident 18 Mr Norman was Ms Obieta's teacher of the modules Interaction in a Legal Office, Interaction with Other Parties and Advocacy Skills, each of which were part of the TAFE course for the Diploma of Business-Legal Studies. 19 On Wednesday 5 May 2004 during a class exercise relating to discrimination, Mr Norman proposed that the class be divided into different groups and that each group would be required to report, either 'for' a particular argument or 'against' it. He made a comment to the effect 'my two blue-eyed good friends over here would report that there is discrimination and the other group would report there is no discrimination'. Ms Obieta says that Mr Norman indicated that one who would be advocating that there was no discrimination came from the Philippines, thereby indicating Ms Obieta, and the other had a history of China, thereby indicating Ms Chong, another student in the class. Ms Obieta claims that by reason of Mr Norman saying such words loudly and repeatedly on two occasions, she felt discriminated against. She alleges that such conduct breached ss 9 and 18C of the RDA. 20 Mr Norman states that as part of the Advocacy Skills module he decided that a short class debate would be appropriate to give the class confidence in public speaking. Following a discussion amongst the class members it was agreed that 'discrimination in Australia' was an appropriate topic. He requested Ms Obieta and Ms Chong to debate that there was no discrimination and addressed two other students and asked them to prepare the opposite argument. Mr Norman has deposed that the four students selected were chosen solely because they were sitting closest to him in the front row of the class. He acknowledges that Ms Obieta requested that she debate that there was discrimination but as he considered she would benefit from arguing the opposite case to improve her advocacy skills, he said to Ms Obieta words to the following effect: 'Being a good advocate often means having to work outside your comfort zone. As such I would like you to debate there is no discrimination.' 21 Mr Norman says he referred to the 'Blue-eyed – Brown-eyed Forum' which had recently been broadcast on television and asked the class whether they had seen such program. He said to the class words to the effect: 'Did anybody see this show? It was a fascinating example of how discrimination can be highlighted.' 22 Mr Norman says that before the debate commenced he said to Ms Obieta and Ms Chong: 'I don't know if you have ever been discriminated against. I would hope not. Nevertheless I think it is important that you use tonight's exercise to debate that there is no discrimination in Australia. As an advocate you will find that you will be confronted with situations where you don't agree with the position or views of your client. That's part of being an advocate. You have to follow the client's instructions.' 23 Mr Norman says it was at that stage that he invited the four students to commence their debate and states that he said: 'I've got my two blue eyes [sic] friends [pointing to Seckold and Tesoriero] over here and my two other friends over here [pointing to Obieta and Chong]. I would like you to start the debate now…' 24 Mr Norman denies that he said: 'The other one comes from the Philippines and the other one has a history of China.' 25 Mr Norman denies that he was seeking to draw any distinction between Ms Obieta and Ms Chong, and Ms Seckold and Ms Tesoriero. He says that his use of the 'Blue eyed – Brown eyed' description was made only in reference to the television program, which he used to introduce the debate on discrimination in Australia. He says his comments were not made to humiliate, insult or intimidate Ms Obieta. 26 Ms Fogarty recalls that Mr Norman made the statements concerning blue eyed and brown eyed people by reference to the television program. 27 Ms Davis recalls this debate but did not remember Mr Norman ever using the words 'the other one comes from the Philippines and the other one has a history of China'. 2. Award of low marks 28 Ms Obieta claims that Mr Norman awarded her low grades in her class test and assignment on a case study in the module 'Professional Misconduct-Legal Profession Act' in the first semester of 2004. As such, Ms Obieta claims that such conduct breached ss 9 and 13 of the RDA. 29 Mr Norman denies that there was any bias or lack of objectivity in the grading of tests, assignments and reports prepared by Ms Obieta. 3. Reference to hostile people 30 Ms Obieta claims that Mr Norman discriminated against her on the grounds of race and violated her civil rights to freely express her opinions. Ms Obieta claims that Mr Norman made the comment in class that 'hostile people answering will get low grades and people who are not hostile answering will get high grades'. Such conduct is claimed to be a breach of ss 9 and s 13 of the RDA. 31 Mr Norman denies that he said 'hostile people answering will get low grades and people who are not hostile answering will get high grades'. Mr Norman says that the comment that he did make was 'Hostile people will get high marks. Non hostile people will get low marks'. He says that this comment was made in a light hearted way and was an attempt to bring the class to order, as they had been unsettled. 32 Ms Davis recalls the incident and verifies Mr Norman's evidence of the words he used and the fact that it was said as a joke at which the class laughed. 4. Refugee allegation 33 Ms Obieta claims that on one occasion in class Mr Norman said words to the effect, 'who is a refugee here', 'Lina did you come here by boat' and after Ms Obieta's reply that she was not a refugee but an immigrant Mr Norman said 'I do not know the difference between an immigrant and a refugee'. Ms Obieta claims that these comments of Mr Norman's involved a distinction, exclusion or reference based on race, colour, descent or ethnic origin to offend, humiliate, insult and intimidate Ms Obieta in front of the class. Such conduct is claimed to be a breach of ss 9 and 18C of the RDA. 34 Mr Norman denies that the discussion took place in the terms stated by Ms Obieta. He recalls that during the discussion Ms Obieta volunteered that she was a refugee and then after further class discussions she aggressively denied that she was a refugee. Mr Norman denies that he said to Ms Obieta 'Lina, did you come here by boat', and he denies that anything that was said in this discussion was designed to discriminate, offend, humiliate, intimidate or insult Ms Obieta. 35 Ms Davis recalls Mr Norman asking the class whether anyone knew the difference between a refugee and an immigrant and whether anyone in the class had come to Australia as a refugee. She also recalls that he asked whether any such person would share their experiences. Ms Davis recalls Ms Obieta saying words to the following effect: 'I came to Australia as a refugee.' Mr Norman then enquired of her whether she came to Australia by asking: 'did you fly or come by boat?' Ms Obieta responded angrily that she was not a refugee and was an immigrant. Ms Davis recalls Mr Norman saying: 'I'm sorry Lina, but you just told the class that you came here as a refugee'. 5. Afghani Detainee 36 On 19 May 2004, a class discussion was held concerning a recent program televised on Australian Story relating to an Afghan detainee. Mr Norman asked the class to consider the general needs of detainees. Ms Davis answered 'entertainment'. Mr Norman allegedly said 'Are they allowed to have sex there? Can they make sex there?' to which Ms Davis replied 'yes'. Mr Norman allegedly responded 'What do they use? Do they use condoms?' 37 Ms Obieta claims that Mr Norman's remarks were irrelevant to the discussion and that he raised the subject of sex for the purpose of intimidating and humiliating the listeners. Ms Obieta claims that she felt sexually harassed and humiliated on that ground and therefore Ms Obieta claims that his conduct breached s 28F of the SDA. 38 Mr Norman denies that a conversation took place in the manner described by Ms Obieta and denies particularly that he said the words attributed to him. He says that the class discussion commenced to consider the issues an advocate would need to consider if they were representing a detainee. Amongst the issues identified were health (physical, mental and sexual), language, customs and traditions, religious beliefs and education of children. It was in the context of discussing health issues that the question of sexual relations and birth control arose. Ms Davis asked whether there was entertainment in detention. Mr Norman responded, 'What do you mean?' Ms Davis responded, 'You know, entertainment.' 39 Mr Norman understood Ms Davis reference to 'entertainment' to be a reference to sexual relationships and he accordingly said 'Do you mean sexual health issues?' He says he made such statement because he wished to maintain the class focus on issues that would need to be considered by an advocate acting for a detainee. The class discussion then moved on to consider the issues of sexual health and birth control and how an advocate for a detainee would need to give consideration to such matters if they arose. He particularly recalls the issue of birth control because the class discussion moved on to consider the possible impact of HIV and Hepatitis on a person in detention. 40 Ms Davis acknowledges that following a discussion considering the needs of a detainee she raised in a sarcastic manner the entertainment needs and acknowledged that she meant the sexual health needs of a detainee. 6. Reference to shoes of Imelda Marcos 41 Ms Obieta alleges that Mr Norman said to her during class discussions, 'Lina, isn't it Imelda Marcos that comes from the Philippines where you come from' and 'how are the 3000 shoes of Imelda Marcos?' 42 Ms Obieta claims that Mr Norman made these comments regarding Imelda Marcos and her shoes drawing a distinction based on race or ethnic background that were offensive, humiliating, insulting and designed to incite contempt towards Ms Obieta from other members of the class. Ms Obieta claims that conduct breached ss 9, 17 and 18C of the RDA. 43 Mr Norman denies that he said the words attributed to him. 44 Ms Davis recalls that the subject of the shoes of Imelda Marcos was raised but not by Mr Norman. She says that Mr Keen, another student, made such a statement. 7. Centrelink allegation 45 Ms Obieta claims that Mr Norman intentionally intimidated and humiliated her in the class by announcing on three occasions that somebody was doing 'mutual obligation' with Centrelink. Ms Obieta alleges that Mr Norman said 'There are some people here who are doing mutual obligation with Centrelink and are being paid by Centrelink to do this course,' and accordingly breached ss 9, 17, and 18C of the RDA. 46 Mr Norman denies that he said the words attributed to him by Ms Obieta and denies that he made mention of the fact that a student was on a 'mutual obligation scheme' and denies that he had any knowledge whether any of his students were receiving any financial assistance from Centrelink. 47 Ms Davis does not recall any statements made by Mr Norman concerning Centrelink. She says that another student in the class, Ms Gleeson said words to the effect of 'I work for the dole' or 'I work for Austudy'. 8. Roll call allegation 48 Ms Obieta claims that Mr Norman was isolating and segregating her from the rest of the class by not calling her name out when marking the roll. She claims that the names of other students were called out, but not hers and as such claims that this is a breach of ss 9 and 13 of the RDA. 49 Mr Norman says that when he marks the class roll he only calls out the names of students who he cannot readily see or recognise when looking around the classroom. As Ms Obieta invariably sat at the same seat at the front of the classroom she was always visible and it was not necessary for him to call her name. 50 Ms Davis recalls Mr Norman stating in class that it was necessary for him to keep the class roll as part of his duty of care to ensure that if a student was injured there was a record of those present in class and of those who had left. In answer to a question by a student who wished to know why Mr Norman was diligent in keeping the class roll, he responded that he was aware that if students were receiving Austudy, they were required to attend 80% of classes and that the record was keep for that purpose also. 9. Failure to mark fairly 51 Ms Obieta claims that Mr Norman did not mark her class test and assignment fairly, and refused to change her grade when she requested it. She claimed that such conduct is a breach of ss 9 and 13 of the RDA and a breach of s 21 of the SDA. 52 Mr Norman denies the allegation that he unfairly assessed and marked Ms Obieta's work and that there were discrepancies in his grading system and assessment practices. 10. Fast dictation 53 Ms Obieta alleges that Mr Norman was victimising her by 'acting furious' and dictating fast in class after she made a complaint relating to him. This conduct is claimed to be a breach of s 27 of the RDA and s 94 of the SDA. 54 Mr Norman denies the allegation that he was dictating fast and 'acting furious.' He acknowledges that on some occasions, it was drawn to his attention by students that he was dictating too quickly, and that when requested to slow down he would do so. 55 Ms Davis said that at times Mr Norman did dictate too quickly but that if a student asked him to slow down, he would do so. 11. Gay incident 56 During a class discussion concerning victim's compensation, a hypothetical factual scenario was discussed concerning a male prostitute who had been shot during the course of his work. The students were required to complete an application for victim's compensation. Ms Obieta says that when she asked the question 'Was the man gay?', Mr Norman became very angry and yelled at her from the front of the class questioning her as to why she raised the matter. She claims that Mr Norman's conduct was rude, intimidating and offensive and that he treated her unfairly. Ms Obieta claims that this conduct is a breach of s 9 of the RDA. 57 Mr Norman responds that he recalls the question being raised by Ms Obieta and that he said words to the effect 'Lina, that is not a matter that is relevant to applying for victim's compensation in this case.' Mr Norman says he responded in a calm manner and he denied that he got 'very angry' or that he 'yelled' at Ms Obieta as she claims. Nor did he angrily question her why she had asked the question as she alleges. He denies there was any dispute with Ms Obieta as alleged. 58 Ms Davis recalls this incident. She says that Mr Norman did not yell or scream at Ms Obieta as she claimed. She remembers Mr Norman responding to Ms Obieta's question whether the man was gay by saying words to the effect: 'that is not a matter that is relevant to apply for victims' compensation', and that such words were said in calm manner. 12. Allegations of sexual discrimination 59 Ms Obieta claims that on 25 August 2004 during a class conducted by Mr Norman, Ms Chong indicated to Ms Obieta that she did not know how to fill the form in. Ms Obieta suggested Ms Chong ask Mr Norman. Mr Norman allegedly said angrily, 'You were abducted, you were taken to the dungeon, you were raped over and over again. You were raped over and over again for a very long period of time.' Ms Obieta claims that such remarks were repeated many times and were yelled by Mr Norman whilst he was in a rage. She claims that his behaviour was sexual verbal behaviour appertaining or imputed generally to women and that therefore she was sexually harassed by Mr Norman in breach of ss 28F and 94 of the SDA. 60 Mr Norman denies he said the words attributed to him on that occasion. 61 Ms Davis recalls the incident and says that she never heard such words being said by Mr Norman. Victimisation 62 Ms Obieta claims that Mr Norman victimised her during her period of study with TAFE. Following her complaint to Ms Illingworth concerning Mr Norman's conduct, Mr Norman continued to provide her with less favourable treatment and interfered with her work and learning conditions. She claimed that he would dictate fast and mumble with the effect that she had to stop taking notes. She claimed that he was picking on her all the time and was frequently calling her attention in class. She claims Mr Norman sexually harassed, intimidated and humiliated her and demeaned her dignity as a woman on 25 August 2004. He intentionally repeated his unfair marking of her class test and showed less favourable treatment to her than other students in the class. He did not mark her class test of 17 November 2004 fairly which gave her a lower grade. He impaired her enjoyment or her right to enjoy, in a non-discriminatory learning and work environment which made her work or study environment unpleasant. 63 Ms Obieta claims that Mr Norman's discriminatory conduct was unnecessary to the performance of his professional duties. Accordingly she claims that Mr Norman's conduct breached s 9 of the RDA and ss 21 and 94 of the SDA. 64 Mr Norman denies any such discriminatory conduct. 65 Ms Fogarty testified that she never saw Mr Norman become aggressive towards Ms Obieta and said that he was always polite and answered questions from any student including Ms Obieta in a polite and helpful manner. 13. Writing on the board 66 Ms Obieta claims that Mr Norman requested her to write her assignment, being a letter to a client, on the board. She says that she told Mr Norman that the letter was too long to write on the board. She alleges that Mr Norman then asked her to stand up in front of the class next to him to read the letter. She says she refused and told Mr Norman that he could use the projector. Mr Norman declined to do so and then informed her that she could read the letter from her seat. 67 Ms Obieta claims that he did not ask other students to write on the blackboard or to stand up in front of the class next to him to read their work. Accordingly, as she was the only one who was asked to do this task she was discriminated against. Ms Obieta accordingly claims a breach of s 9 of the RDA. 68 Mr Norman does not recall the particular incident in question and believes that he would not have asked Ms Obieta to write her letter on the board. Rather, he would have asked the students to note on the board in point form the essential parts of a report or letter they had prepared so that the information could form the basis of a class discussion. Mr Norman says his teaching technique was to ask a number of students to read out work they had prepared so that the class was provided with a variety of information from which the class discussion could then occur. 69 Ms Davis said that Mr Norman asked other students to write on the board when necessary and that he often asked students to come forward and make a presentation, especially in advocacy classes. 70 Ms Fogarty said that Mr Norman often asked students to come to the front of the class and read material they had prepared and gave an example of her own presentation to the class. 14. Costs agreement 71 Ms Obieta alleges that Mr Norman provided her with wrong information relating to the need for a costs agreement in a victim's compensation matter. Ms Obieta says that she argued with Mr Norman and told him that since a motor vehicle accident claim for personal injuries requires a costs agreement, the same should apply to a victim's compensation claim. She says that Mrs Elfert verified that the information provided by Mr Norman was incorrect. She says that the information was intentionally misleading and accordingly breached of ss 9, 13 and 27 of the RDA and s 21 and s 94 of the SDA. 72 Mr Norman responds that he explained to Ms Obieta that since solicitor's fees for a victim are paid by the Victim's Compensation Tribunal rather than through a costs agreement with the client, it was not necessary to have a costs agreement with the client. He says he also explained to her that if it was a personal injury matter, such as a motor vehicle accident or worker's compensation matter, a costs agreement should be forwarded to the client. 73 Mr Norman denies Ms Obieta's allegation that there was any argument and says that at all times he remained calm in attempting to explain to Ms Obieta that it was not necessary that a costs agreement be prepared for a client in a victim's compensation matter. 15. Date of course ending 74 Ms Obieta claims that Mr Norman asked the class when classes finished for the year and Ms Obieta answered that it would be 'up to the first week of December'. The other Australian students said that the last exam would be in December 2004. Mr Norman thanked the Australian students, but not Ms Obieta. Ms Obieta claims he repeated the 'thank you' and said 'I appreciate that very much' on three occasions to the other students. Ms Obieta claims that he thereby showed favouritism to the Australian students and that such conduct was a breach of s 9 of the RDA. 75 Mr Norman says that in class on 22 September 2004 he did not have with him his timetable. As he wanted to know how much class time was left to cover the remaining materials in the course, he asked the class whether anyone knew when the course finished. Ms Obieta replied that the course finished in December in the previous year and accordingly the course would finish in December this year. Ms de Souza responded that the last exam was in December but the classes actually finished in November. He recalls that there was some disagreement between Ms Obieta and Ms de Souza but as it was disrupting the class he said that he would check the timetable. 76 Ms Davis recalls that Mr Norman asked the class whether anyone remembered when the teaching semester finished and the exams commenced. She recalls Ms Obieta responding that because the class finished in December in the previous year, it would finish in December of that year. Ms Davis then recalls Ms de Souza then said that the last exam was in December in the previous year and that the class would finish in November. She recalls that there was a disagreement between Ms Obieta and Ms de Souza at which time Mr Norman told them that he would check the timetable. 16. More favourable treatment for Ms Ramos 77 Ms Obieta claims that Mr Norman gave less favourable treatment to her and created hostility in the class. He referred to Ms Roxanna Ramos as 'Roxan' in his greeting to her. He called upon Ms Cecilia Cordova to recite a passage and referred to her as 'Lina'. Ms Obieta claims that when Mr Norman apologised for calling Ms Cordova 'Lina', this created hostility from other students in the class. She claims that Mr Norman's less favourable treatment of her had the effect of violating or impairing her rights on an equal footing with other students and made her feel ridiculed. As such she claims that she was subjected to harassment or bullying which is at law, 'being subject to any other detriment'. Such conduct is alleged to be a breach of ss 9, 17 and 27 of the RDA and s 94 of the SDA. 78 Mr Norman says that he inadvertently referred to Ms Cordova as Lina, realised his mistake and apologised to Ms Cordova. He states that it was not an attempt by him to incite other students to feel contempt for Ms Obieta. 17. Approach of Mr Norman to Ms Obieta 79 Ms Obieta states that during the class discussion on 8 September 2004, Mr Norman came closer to her, looked at her and said in a nasty way: 'Oh, I don't want to be representing a client who assaulted somebody.' 80 She states that all the students looked at her and laughed and that Mr Norman created a hostile environment which was harassment or bullying and therefore she was 'subject to any other detriment'. Such conduct is alleged to be in breach of ss 9, 17 and 27 of the RDA and s 94 of the SDA. 81 Mr Norman is not certain what the alleged incident relates to and does not recall it. He maintains that he was always civil and polite when he was responding to questions from Ms Obieta, as well as questions from any other student, and that he did not address Ms Obieta at any time in a 'nasty' manner. 18. Credit/distinction 82 Ms Obieta claims that on 10 November 2004 Mr Norman created a hostile and intimidating environment and deliberately created problems for her with other students because he repeatedly stated that she received a 'distinction' in her case study whereas the other students got a 'credit'. She states that the other students became angry and argued and wanted to know why Mr Norman marked the case study. She claims that previously Mr Norman had indicated that the case study would not be marked. As a result Ms Obieta claims that she was harassed and bullied and that the conduct of Mr Norman breached ss 9, 17 and 27 of the RDA and s 94 of the SDA. 83 Mr Norman states that when the students were asked to do their assignments he informed them that it would be a percentage graded assignment. He states that on 3 November 2004 when the students submitted their assignments there was uncertainty in his mind whether the advice he had provided concerning the grading was correct. He advised the students of his uncertainty on 3 November 2004 and told them that he would seek clarification from Ms Illingworth. He duly obtained the advice and spoke to the class on 10 November 2004. He informed them that he had been told that it had been necessary for that piece of work to be given a percentage grading and he had graded the assignments accordingly. He advised the class that two students had received distinctions. One such student was Ms Obieta. 84 Mr Norman acknowledged that there was some disquiet in the class on 10 November 2004 but says that questions were directed at him and were concerned with the previous conflicting advice he had provided. He states that the disquiet was not the fact that Ms Obieta had been awarded a distinction and he refutes that he was attempting to incite the class to feel contempt towards Ms Obieta. 85 Ms Davis recalls that when an assignment was returned there was some confusion concerning the grading of the assignment. 19. Throwing of examination papers 86 On 25 November 2004, Mr Norman returned the students' class tests in the Legal Costing module. Ms Obieta testifies that Mr Norman did not come to her desk to return the papers but stood at the printer and threw her papers at her. She found Mr Norman's behaviour offensive and rude, and intimidating. Further, Mr Norman omitted to mark two questions in her class test with the result that she received a lower grade. She was the only student who complained. She says she had an argument with Mr Norman and felt that Mr Norman was victimising her. She claims that his treatment of her was discriminatory and breached ss 9, 13, 27 of the RDA and s 94 of the SDA. 87 Mr Norman responds that the class being taken on that day was being conducted by Mrs Elfert. He attended at the commencement of the class to return the class tests to the students. He denies that he 'threw' Ms Obieta's class test at her and says that he handed it back to her. After it was handed back, Ms Obieta approached him and began questioning him in relation to the grading. As the other class had commenced and Ms Obieta's questioning was interrupting that class he asked Ms Obieta to make an appointment to see Ms Illingworth, the Head Teacher, and that he would attend to discuss her concerns. He says that upon closer examination he discovered that he had unintentionally forgotten to mark two questions on Ms Obieta's examination paper. He left the room and reviewed the test, re-marked it and returned it to her. The marks were subsequently increased from 84 to 92. 88 Ms Obieta disputes that the class had already commenced. She acknowledges that she was told to contact Ms Illingworth but said that as Ms Illingworth had not conducted herself properly during her previous complaints, she did not regard it as appropriate that she should contact her. 20. Cheezels Incident 89 Ms Obieta claims that on 23 June 2004 during a class being conducted by Mr Norman, Ms Davis sexually harassed her in the presence of Mr Norman. She said Ms Davis stood up at her desk facing towards her and looked at her. She lifted up her hand and inserted over her five fingers Ring Cheese Curls (otherwise known as Cheezels) one by one. Ms Davis then waived her hand at Ms Obieta, sucked her middle finger while she was looking at Ms Obieta. Ms Obieta claims that Ms Davis made such gesture in the presence of Mr Norman and demeaned her. She claims that after a while Mr Norman said 'ok, that's enough', and Ms Davis then sat down. 90 Ms Obieta claims that Mr Norman was legally responsible for the students and that failing to control the class and permitting such conduct constituted treatment less favourable to her than to the other students and violated her human right. She claims that this conduct was inciting sexual discrimination. 91 Mr Norman says that he did not see, and is not aware of the incident to which Ms Obieta is referring. complaints AGAINST MS ALEXIE DAVIS 16. Wrong name called in class 92 Ms Obieta claims that on one occasion in class when Mr Norman mistakenly called Ms Cordova by the name of 'Lina', Ms Davis made a noise of a duck or a chicken. As such Ms Obieta claims that Ms Davis discriminated against her on the grounds of race within the meaning of ss 9, 17 and 27 of the RDA. 93 Ms Davis denies making any duck, chicken or other such noises. 94 Ms Fogarty testifies that she did not recall Ms Davis ever making duck or chicken noises. 20. The Cheezels incident 95 Ms Obieta claims that Ms Davis harassed her in relation to the incident referred to above ('the Cheezels incident'). Further, she claims that after a complaint had been made to Mr Norman, Ms Davis sexually harassed her on 23 June 2004 and on 6 November 2004. Ms Obieta alleges that these incidents resulted from Ms Davis, '… staring at me and intimidating me all the time in class, and bullied me'. She claims that as a result she was sexually harassed and that the conduct of Ms Davis breached ss 28F and 94 of the SDA. 96 Ms Davis denies the allegations and says that she rarely spoke to Ms Obieta. Ms Davis says that she often ate Cheezels in class and while doing this placed them on her fingers. No sexual innuendo was ever intended. Ms Davis said that Ms Obieta sat facing the back of the class, and she faced the front. To see the teacher Ms Davis would look in the direction of Ms Obieta who occupied a seat in the front row. As such Ms Davis looked towards Ms Obieta, but denies that she stared at her. 21. Mimic of a duck or chicken 97 Ms Obieta claims that when called upon to recite something, Mr Norman referred to Ms Davis as 'Lina'. When Ms Obieta's name was called out, Ms Obieta alleges that Ms Davis made the noise of a duck or chicken. She claims that Ms Davis was mimicking manner of speech or her Asian accent in class and that Ms Davis made racist sounds in her presence. She claims that such conduct was harassment and constitutes 'being subject to any other detriment'. Ms Obieta claims that this constitutes a breach of ss 9, 17, 18C and 27 of the RDA. 98 Ms Davis states that she has no recollection of such event and does not believe that she has ever done so. She states that she does not mimic ducks or chickens. 99 Ms Fogarty testifies that she does not recall Ms Davis ever making any duck or chicken noises. 22. Verbal behaviour of Ms Davis 100 Ms Obieta claims that Ms Davis was always staring at her and watching her all the time in class and outside class to intimidate and distress her. On one occasion she said that Ms Davis went to the printer in front of her desk and said words to the effect 'This is for people who have problems with their hearing.' 101 Ms Obieta claims that Ms Davis was intentionally insulting and intimidating her and Ms Chong by insinuating that they had a hearing disability. She says this created a hostile environment and that her conduct constitutes racial and sexual discrimination and was in breach of ss 9 and 27 of the RDA and ss 28F and 94 of the SDA. 102 Ms Davis repeats that her desk was so placed that she had to look towards Ms Obieta to see the front of the class, since Ms Obieta, although being in the front row, sat facing the back of the class. She acknowledges that she often went in front of Ms Obieta's desk with other members of the class but does not recall making any comments relating to Ms Obieta's hearing on any occasion and does not believe that she made such comments. 23. Allegations of tutoring 103 During the class of Mrs Susan Elfert, Ms Obieta says that Ms Davis came up to her and Mrs Elfert and said 'Oh, you are tutoring her.' Ms Obieta says she felt harassed and intimidated by Ms Davis' behaviour and felt that Ms Davis did not want Mrs Elfert to teach her or give her information. She considers that Ms Davis was denying her access to education and training and depriving her of her rights and privileges as a student of TAFE. As such she was intimidated and was subject to harassment and that such conduct constituted a breach of s 9 and s 27 of the RDA. 104 Ms Davis acknowledges that she did say to Mrs Elfert on one occasion words to the effect 'Oh, you are tutoring her.' She says that such incident occurred after Ms Obieta had, in the middle of the class, asked her a series of questions which related to earlier classes and unrelated subjects. As this had been proceeding for more than half an hour Ms Davis felt extremely frustrated by so much class time being devoted to one student. She considered it inappropriate for Mrs Elfert to be providing in effect a private lesson instead of teaching the whole class. She says Ms Obieta screamed back at her. Later, when she went to explain her statement to Ms Obieta, Ms Obieta took hold of Ms Davis' arm and 'screeched' at her, refusing to let go. 24. Apprehension of bullying 105 Ms Obieta claims that during the Word Processing module she complained to the teacher, Ms Nguyen, that the Word program had been removed from the computer she was using. Ms Obieta moved to the seat adjacent to the seat which had been occupied by her and felt that a 'bully group of students' were doing something behind her back and were all giggling. She turned around and saw Ms Davis and others giggling and felt harassed by them. For this reason she claims that she has been sexually discriminated against by Ms Davis pursuant to ss 28F and 94 of the SDA. 106 Ms Davis does not deny that she and other students were giggling in the class room on this particular Saturday. She says that because it was a Saturday and because she didn't want to be in the class, she was going through some of the drawers in the classroom and 'generally clowning around with other students'. She denies however that this behaviour and giggling was in any way directed to Ms Obieta. 25. Claim in relation to unnamed Asian student 107 Ms Obieta claims that an unnamed Asian student complained to Mrs Elfert that she had been hit on the shoulder and harassed by Ms Davis and that such complaint had been made to Mrs Elfert in the presence of other students. The particular student did not return to class after this incident. Ms Obieta claims that Ms Davis' conduct constitutes racial discrimination under ss 9 and 18C of the RDA. At the hearing Ms Obieta was unable to identify the student and she had made no claim. Accordingly the Court disallowed this claim and will not consider it further. Complaints against MS Fogarty and mrs elfert 26. Interference with right to ask questions 108 Ms Obieta claims that Ms Fogarty deprived her of the right to ask questions during class discussions during the Litigation module and that this constituted discrimination. Ms Obieta claims that Mrs Elfert, her teacher in the modules of Litigation and Routine Legal Office Functions, supported Ms Fogarty and told Ms Chong and Ms Obieta not to ask questions during class discussions but to ask the questions after the class. Ms Obieta claims that the Australian students were permitted to ask questions during class discussions. As such Ms Obieta claims that Mrs Elfert treated her unfairly and less favourably than the other students. 109 Ms Obieta claims that Ms Fogarty's behaviour had the purpose of undermining and endangering her study or work performance or academic success or progress. She claims that Ms Fogarty isolated her by denying resources required to learn and violated her fundamental right in education. Ms Obieta says that Ms Fogarty came up to her seat on 28 October 2004 and said: 'I hate this class. I don't want to attend this class any more'. 110 Ms Obieta found such comment intimidating and offensive and capable of inciting the class to feel hatred towards her. As such Ms Obieta claims that such conduct was a breach of ss 9, 17, 18C and 27 of the RDA. 111 Ms Fogarty denies that she treated Ms Obieta in the manner alleged and denies that she deprived her of any opportunity as claimed to ask questions. She says that she asked Ms Obieta to consider that the other class members were also entitled to the same rights that she asked of the other class members. She said at one stage Ms Obieta started 'screeching' and verbally abusing her when it was suggested to Ms Obieta that she should reciprocate the same rights to other students. In a letter written by Ms Fogarty to Ms Illingworth and hand delivered on 28 October 2004, Ms Fogarty stated: 'Often it would take the lecturer a minimum of five minutes to answer a single question she [Ms Obieta] poses and this takes up a lot of class time resulting in very late finishes. This is not an isolated incident – since commencing this course last year she has constantly caused large gaps in the class time whilst lecturer's [sic] have spent vast amounts of time teaching her one-on-one to the detriment of her class mates.' In oral evidence, Ms Fogarty verified the truth of the facts contained within her letter. 112 Ms Obieta submits that Mrs Elfert supported Ms Fogarty's conduct and therefore Mrs Elfert engaged in conduct in breach of the RDA. complaints AGAINST 'AUSTRALIAN STUDENTS' 27. Victimisation by students 113 Ms Obieta claims that after a class she talked to Mrs Elfert in the presence of Ms Chong and made a complaint that she was being victimised and denied access to learning, which was affecting her work and her studies. She claimed that Mrs Elfert admitted that the students were 'corroborating' [sic – collaborating] and that Mrs Elfert said that she did not wish to become involved in the matter. Ms Obieta claims that the 'Australian students' discriminated against her in breach of ss 9 and 27 of the RDA. 114 Mrs Elfert says that she had no recollection of such conversation nor of the allegation of victimisation or that Ms Obieta told her that the students were 'corroborating'. Mrs Elfert otherwise does not recall any discussion concerning this topic. She does recall that Ms Obieta claimed that she had been treated unfairly in Mr Norman's class. She says that she was surprised by such allegation because in previous remarks from Ms Obieta, she considered that Ms Obieta liked Mr Norman and until this time had received no negative feedback concerning his class. Mrs Elfert says that she said to Ms Obieta, 'What would you like me to do about this? You must put it in writing and I will bring it to Ms Illingworth's attention if you feel strongly about it.' 115 Mrs Elfert says that within a week of this class she discussed the matter with Ms Illingworth and how to resolve the issue, bearing in mind that the term was almost over. COMPLAINTS AGAINST MRS ELFERT 28. Misleading information provided by Mrs Elfert 116 Ms Obieta claims that Mrs Elfert did not provide her with vital information and supplied her with wrong or incorrect information relating to assessment guidelines, notes, lessons and requirements pertaining to the exams in the modules of Litigation and Routine Legal Office Functions. Mrs Elfert allegedly did not provide to Ms Obieta and Ms Chong the assessment guidelines for those modules, which Ms Obieta claims are mandatory. Ms Obieta claims that she and Ms Chong asked Mrs Elfert the requirements for the exam in the litigation module and Mrs Elfert provided the wrong information by informing her that the examination was one in which books were not allowed. Ms Obieta claims that Ms Elfert breached ss 9, 13 and 27 of the RDA and ss 21 and 94 of the SDA. 117 Mrs Elfert recalls Ms Obieta asking her what materials can be taken into the examination. She responded 'Just check the Study Guide.' Mrs Elfert denies that she failed to provide the assessment guidelines as alleged. She states that she always handed out the guidelines at the commencement of the module which would have been in July 2004 in this instance. She states that she also showed the assessment requirements on an overhead displayed for the first three or four classes. She told the students it was a matter for them whether they wished to purchase the recommended texts and that they were in any event available in the library. She says it was the responsibility of each student to determine whether they would buy text books or borrow them. 118 Mrs Elfert denies the assertion of Ms Obieta that she informed the class that the exam would be 'closed'. She told the class that in the past the examination had been 'closed' but they needed to check the study guide as to whether or not books and notes could be brought into this exam. She states that in fact the only relevant extract of any text book was printed out in full in the examination paper with the result that examinees had no need to refer to the text book. She denies that she failed to provide Ms Obieta with vital information and that she supplied Ms Obieta with incorrect information. Mrs Elfert also says that the exam was internally set and that the material that she taught to the students in her classes corresponded with the module assessment guidelines. She also states that the examinations for those modules were publicly marked by a panel. Ms Obieta did not pass the exam but she was not the only student who failed. She said that Ms Chong re-sat the examination and passed. 119 Ms Davis testified that Mrs Elfert, at the commencement of a module would put the assessment guidelines on an overhead projector and would explain the assessment guidelines to the class. Ms Davis says that this occurred on several occasions. 120 Ms Fogarty confirmed the evidence of Mrs Elfert and Ms Davis, and said that Mrs Elfert encouraged students to take notes on the assessment guidelines. Ms Fogarty also confirmed Mrs Elfert's evidence that she told the students that it was their decision to purchase text books. She remembers Mrs Elfert telling the class that the necessary books were available in the library and that she encouraged the students to use the library rather than incurring expenditure in purchasing the books. COMPLAINT AGAINST MS ILLINGWORTH 29. Failure to comply with agreement to have test independently reviewed and re-marked 121 Ms Obieta claims that at the meeting held on 7 June 2004 she asked Ms Illingworth, Head Teacher, for an independent assessment of her class test and report/assignment in the modules taught by Mr Norman and that Ms Illingworth agreed that an independent assessor would undertake such task. Ms Obieta says it was also agreed that Mr Norman would apologise to her in front of the class but that Mr Norman only apologised to the class and not to her. Accordingly, Ms Obieta claims that Ms Illingworth failed to comply with the agreement to have her test reviewed independently and to have her papers marked by an independent assessor. 122 Ms Obieta claims that she was therefore discriminated against by Ms Illingworth in breach of ss 9 and 13 of the RDA and s 21 of the SDA. 123 Ms Illingworth states that on 24 May 2004 Ms Obieta informed her that she wished to make a complaint concerning Mr Norman and said that Ms Obieta was not happy with the grade she had received for the Interaction in a Legal Office module. Ms Illingworth told Ms Obieta that she could ask Mr Norman for a review. Ms Obieta responded that she had requested a review but that Mr Norman had not done so. 124 Ms Illingworth says that Ms Obieta then began to speak to her in an agitated manner and made allegations against Mr Norman. Ms Illingworth informed her that the allegations she was making were serious and that she should put them down in writing and that she would ask Mr Norman to review the marks. Ms Illingworth denies that she told Ms Obieta to come back on the following day, as Ms Obieta alleges. 125 Ms Illingworth agrees that Ms Obieta asked her on 25 May 2004 if she had talked to Mr Norman concerning her grades. Ms Illingworth responded that she had not done so because Mr Norman, a part-time teacher, had not been at TAFE since she last spoke with Ms Obieta. On the afternoon of 26 May 2004 Ms Illingworth and Mr Norman had a conversation in which Mr Norman was asked to re-mark the exam. 126 On Monday 31 May 2004 Ms Illingworth received a letter of complaint from Ms Obieta concerning Mr Norman. Ms Illingworth informed Ms Obieta that no examination papers would be returned until Mr Norman was instructed to do so. The only complaint made by Ms Obieta in the letter was in relation to her marks. Upon receiving such letter Ms Illingworth telephoned Ms Obieta to tell her that such letter did not make any complaints of the kind she had referred to during her brief conversation with Ms Illingworth. 127 A meeting was then arranged for Ms Obieta, Ms Illingworth and Mr Norman on 7 June 2004. The meeting was attended also by Ms Ellen Lawson, another Head Teacher from the section, as an observer. Prior to the meeting commencing, Ms Obieta was allowed time to read a letter written by Mr Norman in response to her complaint. Having read the letter, Ms Obieta alleged that Mr Norman had 'twisted what had happened'. 128 An agenda for the meeting was then given to Ms Obieta prepared by Ms Illingworth. Ms Illingworth says that she agreed to arrange for an independent assessor who was one of the day teachers, to review the assignment. Because Ms Obieta then alleged bias, Ms Illingworth informed her that the class tests of all the students would be re-marked and compared to each other. 129 With regard to the 'hostile people' remark which was discussed, Mr Norman responded that he made reference to that issue in a light-hearted fashion to bring the class to order. 130 Ms Illingworth said that Ms Obieta became very aggressive and was yelling much of the time. Ms Illingworth did not prevent her talking. 131 Ms Obieta had made allegations that Ms Illingworth had referred to Ms Davis as a 'bully' and that some of the students had been offended by the 'sex and condom' issue. Ms Illingworth denies that she made any such remarks. Ms Norman explained that he had raised the issue of 'sex and condom' relevantly in class discussions on health issues. 132 With regard to the 'Centrelink' issues, Ms Illingworth noted that there was no way of resolving the disagreement between Mr Norman and Ms Obieta and accordingly said that she would interview the class members concerning the issues raised by Ms Obieta. 133 Ms Illingworth denies that it was agreed that Mr Norman would apologise personally to Ms Obieta. She states that it was agreed that Mr Norman would apologise to the class for any offence or misunderstanding caused by the class discussion and Mr Norman indicated that he was prepared to do so. 134 Pursuant to the arrangement for a review, Ms Illingworth instructed Mr William Stewart, a teacher, to undertake the review and the review was undertaken. 135 Miss Illingworth then interviewed 21 students. She maintained confidentiality by not revealing who had made the complaint against Mr Norman, and requested each student to keep the interview confidential. 136 Ms Illingworth received Mr Stewart's results of the review and re-mark, which made minor adjustments to 7 of 25 student's results. In Ms Obieta's case, the marks were marginally increased for the class examination from 67.5 to 69.5. Such adjustment did not alter the grade awarded to Ms Obieta. 137 Ms Illingworth then requested Mr Stewart to mark the assignment of Ms Obieta, and of two other students. Mr Stewart undertook such task, and provided marks for the assignments of the three students. 138 Ms Illingworth arranged a meeting with Ms Obieta which took place on 29 July 2004. Present were Ms Obieta, Ms Illingworth, Mr Stewart and later, Ms Clifton. Ms Obieta was informed of the results of the review and re-mark and that investigations were concluded. 139 Ms Clifton explained the results to Ms Obieta, and showed Ms Obieta where the additional marks had been awarded. However, Ms Obieta said that she wanted a grade of distinction. Mr Stewart said that there were not sufficient marks to reach that level and Ms Obieta requested another review and re-mark. Ms Clifton refused such request and informed her that her record would show 'deferred results' until the matter was resolved. 140 Ms Illingworth denies that Ms Obieta requested a copy of her class test under the Freedom of Information Act. Subsequently her results were changed from 'deferred result' to her reviewed result as determined by Mr Stewart. complaint against mr stewart 30. Discrimination in provision of services 141 Ms Obieta claims that Mr Stewart's conduct 'involved an exclusion and preference' which denied her access to benefits, rights and privileges provide by TAFE, and discriminated against her in the way he provided services to her as a student. Accordingly she claims that Mr Stewart failed to provide fair teaching services and failed to supply these services and discriminated against her on the grounds of race. Ms Obieta claims that he breached ss 9, 13 and 27 of the RDA and ss 21 and 94 of the SDA. 142 Mr Stewart denies such allegations. He says that he reviewed Ms Obieta's examination paper, and those of 24 other students. He was informed that a student had complained, but that he was unaware of the identity of that student. Mr Stewart reported to Ms Illingworth that he found only minor discrepancies but that there was no evidence of bias in the earlier marking. 143 In the re-mark of the three student's assignments Mr Stewart says that no marks were indicated on the paper of Ms Obieta. Mr Stewart allocated 29 out of 40 for Ms Obieta's assignment. 144 Mr Stewart says that at the meeting of 29 July 2004 he explained how he had increased the mark from 25 to 29 out of 40. He says that Ms Obieta appeared to be dissatisfied with the mark and questioned Mr Stewart's objectivity. She demanded the grade of distinction, but Mr Stewart told her that he could not justify awarding the further 12 marks which was required to meet such standard. 145 Mr Stewart denies Ms Obieta's evidence that she advised him that the assessment should be based on the 'assessment tools of the competency-based training'. He denies Ms Obieta's claim that Ms Illingworth told him not to answer Ms Obieta's questions. Mr Stewart recalls Ms Obieta shouting words to the effect that she was not content with the review. COMPLAINTS AGAINST MS ILLINGWORTH 31. Grades of other students 146 Ms Obieta claims that in the meeting (held on 29 July 2004) with Ms Illingworth, Ms Lawson and Mr Stewart, she told Mr Stewart that there was a class member who got a low 'pass' mark in the class test in the module taught by Mr Norman but that such grade was changed to 'credit' and that the class member had received a credit in her report/case study yet did not attend the whole period of the Advocacy Skills module taught by Mr Norman. She also claims that she advised Mr Stewart that there was a student in the class who submitted a wrong report or case study but received a mark. She claims that Ms Lawson and Ms Illingworth avoided the conversation. As a consequence she claims that Ms Illingworth's conduct involved an exclusion and preference which denied her access to benefits, and that she was discriminated against in breach of ss 9 and 27 of the RDA and ss 21 and 94 of the SDA. 147 Ms Obieta also claims that the first to fourth respondents failed to take all reasonable steps to prevent or stop discrimination and victimisation and failed to implement its 'Staff and Student Policies'. 148 Mr Stewart has no recollection of such conversations. Ms Lawson recalls Ms Obieta referred to other students' marks, but both Ms Illingworth and Ms Lawson informed her that they could not discuss other students' marks and that they could only address Ms Obieta's concerns with regard to her own marks. 32. Mr Stewart was not an assessor 149 Mr Obieta claims that she disagreed with Ms Illingworth at the meeting on 29 July 2004 concerning the re-assessment of her class test. She says that she claimed that Mr Stewart was not an assessor and advised Ms Illingworth that the agreement for an assessment of her class test by an independent assessor had not been complied with. Ms Obieta also claims that she advised Ms Illingworth that the test was unfairly reassessed and re-marked by Mr Stewart. She claims that Ms Illingworth refused to provide her with a further reassessment and accordingly Ms Obieta claims that she was discriminated against in breach of ss 9, 13 and 27 of the RDA and ss 21 and 94 of the SDA. 150 Ms Illingworth states that Mr Stewart was a teacher in the daytime class. Mr Stewart testified that he holds qualifications issued by the Commonwealth Government which qualifies him as an assessor and teacher. Ms Illingworth maintains that there was no breach of the agreement as alleged, since Ms Obieta's class test was marked by Mr Stewart, who was independent. 151 Ms Lawson recalls that Ms Obieta challenged Mr Stewart's qualifications and abilities to re-evaluate her results and claimed that he was not a law teacher. Both Ms Illingworth and Ms Lawson reassured Ms Obieta that Mr Stewart was qualified however Ms Obieta continued to challenge Mr Stewart's qualifications. 33. Denial of access to interview records and grades 152 Ms Obieta claims that Ms Illingworth refused to provide her with the results of the interviews and investigations into her complaints concerning the discriminatory conduct of Mr Normal towards her. She claims Ms Illingworth denied that there was discrimination and that there were no complaints from other students. Ms Obieta claims that other students had informed her that they had verified the verbal behaviour of Mr Norman in class. 153 Ms Obieta says she requested Ms Illingworth to supply a copy of her class test pursuant to the Freedom of Information Act but Ms Illingworth refused and advised her that a pass mark of 69.5 (as marked by Mr Stewart) would be rounded to 70 to make it a credit inthe 'Transcript of Record'. Ms Obieta claims Ms Illingworth's conduct discriminated against her in breach of ss 9, 13 and 27 of the RDA and ss 21 and 94 of the SDA. 154 Ms Illingworth acknowledges that Ms Obieta received the grade of 'credit', and says that she did not qualify for the grade of 'distinction'. She denies that there was any discrimination in the manner in which Ms Obieta was treated. 34. Request for the removal of the word 'Deferred' on test results 155 Ms Obieta says she requested Ms Illingworth to remove the words 'deferred' in the results of her Transcript of Record in the two modules of Mr Norman and provide her with the result of the investigations with the students in relation to her complaint against Mr Norman. She claims that Ms Illingworth declined to do so and that Ms Illingworth handled the grievance procedure poorly, unsatisfactorily and inadequately. As a result she discriminated against Ms Obieta in breach of ss 9, 13 and 27 of the RDA and ss 21 and 94 of the SDA. 156 Ms Illingworth rejects Ms Obieta's claims and says that the word 'Deferred' was included in her results because she had requested a review and that Ms Obieta was informed that the 'Deferred' result would remain until the matter was settled. COMPLAINT AGAINST MS CONNELLAN 35. Refusal by Ms Connellan to supply Transcript of Record 157 Ms Obieta wrote to Ms Terri Connellan, Assistant Director of Education Programs, in relation to the complaint concerning the alleged discriminatory behaviour of Mr Norman and Ms Illingworth and also asked for an appeal for the review/reassessment of her class test and report/case study by an independent assessor. She also asked for a copy of the mark of the class test pursuant to 'Freedom of Information', and that the 'Deferred' results be removed from her Transcript of Record. She also requested that she be supplied with the amended Transcript of Record with the re-marks by an independent assessor and the written result of the investigation in relation to her complaint against Mr Norman's alleged discriminatory conduct. Ms Connellan declined to accede to such requests. Ms Obieta claims that in consequence she was discriminated against in breach of ss 9, 13 and 27 of the RDA and ss 21 of the SDA. Further she claims that the Department of Education and TAFE respondents failed to prevent discrimination and failed to implement its 'Staff and Student's Policies'. 158 Ms Connellan says that as she was on leave she did not see or respond to a letter which Ms Obieta wrote dated 3 August 2004 which itemised her requests. Mr Hassett, acting in Ms Connellan's role responded by a letter dated 11 August 2004. 159 Ms Connellan says that when she returned from leave on 30 August 2004 she had a discussion with Mr Hassett concerning the complaint and saw both Ms Obieta's letter and the response. 160 On 1 September 2004 Ms Connellan became aware that Ms Obieta had made a complaint to VETAB and following a discussion with an officer in VETAB it was agreed that her complaint would be managed by TAFE in accordance with TAFE's complaints policy namely 'Responding to Suggestions, Complaints and Allegations Policy'. A further letter was sent by Ms Obieta to Mr Hassett dated 26 August 2004 alleging discrimination. Ms Connellan attempted to contact Ms Obieta and left several messages requesting that she communicate with her. Such messages were left on Ms Obieta's mobile telephone but no response was received. 161 Ms Connellan met with Ms Illingworth on 2 September 2004 and 6 September 2004 to discuss the management of Ms Obieta's complaint. Ms Connellan also spoke to Mr Hassett concerning Ms Obieta's letter of 26 August 2004. 162 On 8 September 2004, having received no response to her messages requesting that Ms Obieta contact her, Ms Connellan wrote to Ms Obieta informing her that attempts had been made to contact her in relation to the issues raised and that messages had been left on her home number on two days of the previous week. Ms Connellan requested that Ms Obieta contact her. The letter was addressed to Ms Obieta's postal address. No response was received from Ms Obieta. 163 On 20 September 2004, in the absence of any communication from Ms Obieta, Ms Connellan contacted VETAB to advise that no further action on her part was possible because Ms Obieta had failed to respond to requests for communication. On 14 December 2004 Ms Connellan received a facsimile from Ms Margaret Willis, the general manager of VETAB advising her that Ms Obieta had made complaints. By letter dated 20 December 2004 Ms Connellan responded to Ms Willis informing her of the attempts to communicate with Ms Obieta and that so far as possible the complaint had been resolved to the best of her ability. complaint against mr hassett 36. Less favourable treatment 164 Ms Obieta states that she received a letter from Mr Peter Hassett, Chief Education Officer at Ultimo TAFE, advising her that the investigation process had been carried out in an equitable manner. He also advised that the mark should stand and that she would receive a new Transcript of Record shortly and that the internal action had been appropriate. 165 Ms Obieta claims that Mr Hassett's conduct was discriminatory because he denied her access to benefits provided by an education institution and that she received less favourable treatment. Further she claims that the Department of Education, VETAB and TAFE failed to take all reasonable steps to prevent the discrimination. Ms Obieta claims that such conduct breached ss 9, 13 and 27 of the RDA and ss 21 and 94 of the SDA. 166 Mr Hassett says that he became aware that on 3 August 2004 Ms Obieta had written to Ms Connellan during her absence. Upon receipt of the letter he proceeded to investigate the complaints and in doing so spoke to Ms Illingworth. He ascertained the procedures that had been used in accordance with the Review Policy. Ms Illingworth had informed him that Ms Obieta's class papers had been sent to Mr Stewart for reassessment. Mr Hassett says he did not know Mr Stewart but understood him to be a teacher in the Legal Studies section of TAFE NSW Sydney Institute. He also inspected Mr Stewart's reassessment. 167 Mr Hassett spoke to Ms Lawson, another Head Teacher in the Business Administration and Technology teaching section. He satisfied himself that the correct procedures had been adopted. 168 Mr Hassett says that he noted Ms Obieta's request under the Freedom of Information Act 1982 (Cth) but states that at that time it was his understanding that requests had to be made in a more formal manner. He believed that a formal request would need to have been sent by an applicant for information to the Freedom of Information Unit of the Department of Education and Training for response. Mr Hassett acknowledges that his assumptions may have been incorrect but his action in declining to make the invitation available was not because of Ms Obieta's background, race or sex. He states he knew nothing of her background. 169 With regard to Ms Obieta's allegation that she requested her Transcript of Record with re-graded marks, Mr Hassett states that the records of TAFE NSW Sydney Institute database shows that Ms Obieta's re-graded results were sent to her on 6 August 2004. 170 Mr Hassett acknowledges that Ms Obieta again wrote on 26 August 2004 to him complaining of Mr Norman's conduct and that such letter had been received on 2 September 2004. He did not respond since Ms Connellan had taken over the conduct of Ms Obieta's complaint. COMPLAINT AGAINST TAFE 37. Failure to act on complaints against Mr Norman 171 Ms Obieta complains that she wrote on 26 August 2004 to Mr Hassett advising again of the discrimination against her which was continuing in consequence of the conduct of Mr Norman. She also informed him that TAFE had failed to carry out appropriate action and no remedies had been implemented in connection with the behaviour of Mr Norman. 172 Ms Obieta also complained that she had not received her Transcript of Record with her grade on the two modules of Mr Norman and a copy of the class test and the result of the investigation had not been provided to her. 173 Ms Obieta claims that TAFE discriminated against her by reason of the above and denied her benefits and claims discrimination in breach of ss 9, 13, 27 of the RDA and ss 21 and 94 of the SDA. Additionally she claims that TAFE was vicariously liable under the SDA and the RDA for their failure to provide her with an appropriate work environment. 174 Mr Hassett says that upon receipt of Ms Obieta's letter of 3 August 2004, addressed to Ms Connellan, he made enquiries of Ms Illingworth and of Ms Lawson concerning the issues raised by Ms Obieta. He satisfied himself that the requirements of TAFE's Review and Results Policy had been satisfied. 175 With regard to Ms Obieta's request for her Transcript of Record under the Freedom of Information Act, he believed then that her request was informal and was insufficient. He acknowledges that he may have been mistaken in so concluding. 176 Mr Hassett responded to Ms Obieta, informing her that TAFE had followed the appropriate procedures. He enclosed the Policy documents and invited Ms Obieta to telephone him. COMPLAINTS AGAINST VETAB 38. Failure to undertake audit of Students' records 177 Ms Obieta states that she complained to VETAB concerning the discriminatory conduct of Mr Norman towards her and the discrepancies in his grading and assessment practices. She also complained that a class member, Roxana Ramos received a pass in the class test of Mr Norman's modules and that the grade was changed to 'credit' in the Transcript of Record. Ms Obieta claims that Ms Ramos was always absent from the modules of Mr Norman and in other modules of this course yet nevertheless Mr Norman provided her with the grade of credit in all three modules. 178 Ms Obieta claims that her request to VETAB to audit the student's records in relation to the discrepancies in the grading and assessment practices of Mr Norman and in the teaching staff of TAFE was not actioned. Ms Obieta relies upon vicarious liability provisions in ss 18A and 18E of the RDA and s 106 of the SDA. 179 Ms Willis Director of Quality Assurance for the NSW Department of Education and Training and Director of VETAB gave evidence that VETAB's role was to monitor compliance with the Standards for Registered Training Organisations ('RTOs') which includes handling complaints relating to RTOs. She gave evidence that VETAB did not order an investigation of students' records because it does not carry out an audit of individual assessments of students. 39. Vicarious liability of VETAB 180 Ms Obieta says VETAB replied acknowledging receipt of her complaint and states that Ms Dawn Grayce, Senior Project Officer, informed her that organisations such as TAFE were required to comply with the Standards of the Australian Quality Training Framework and that VETAB was responsible for monitoring such compliance. Ms Obieta refers to the vicarious liability provisions in ss 18A and 18E of the RDA and s 106 of the SDA. 181 Ms Willis' affidavit states that Ms Grayce attempted to contact Ms Obieta on 16 September and 24 September 2004 and left messages requesting Ms Obieta to contact her. Ms Obieta did not return any phone call. 40. VETAB not providing remedy to complaints 182 Ms Obieta says she again complained to VETAB concerning the victimisation against her and advised VETAB that TAFE had done nothing to remedy the matter. She requested VETAB to provide her with the results of her complaint and the outcome of the investigation. 183 Ms Obieta claims that VETAB did not redress her grievances and that VETAB discriminated against her. She claims that VETAB was in breach of ss 9, 13, 17, 18C, and 27 of the RDA and ss 21, 28F and 94 of the SDA. 184 Ms Willis' affidavit annexes a file note which details the attempts made by VETAB to communicate with Ms Obieta by telephone, email and letter, and by message sent through her teacher. Ms Obieta did not make contact in response to any of the requests made by her. COMPLAINT AGAINST MRS ELFERT 41. Complaint to Ms Illingworth concerning Mrs Elfert's failure to provide information relating to the examination. 185 Ms Obieta claims that after an exam in Routine Legal Office Functions in December 2004, Ms Illingworth approached her and Ms Chong in the hallway and asked questions relating to the exam. Ms Obieta says that she and Ms Chong complained to Ms Illingworth concerning the allegedly misleading information provided by Mrs Elfert. She claims that she was discriminated against in breach of ss 9, 13 and 27 of the RDA and ss 21 and 94 of the SDA. This claim is a duplication of the claim made in 28 above and accordingly the response of Mrs Elfert is the same. COMPLAINT AGAINST TAFE 42. Failure to obtain diploma 186 Ms Obieta claims that she received her Transcript of Record from TAFE in January 2005. It established that she failed two modules, namely Litigation and Routine Legal Office Functions. Such courses were conducted by Mrs Elfert. 187 Ms Obieta alleges that TAFE discriminated against her in breach of ss 9 and 13 of the RDA, and ss 21 and 94 of the SDA because she was not awarded the Diploma due to her fail results in the two subjects. 188 Ms Illingworth's affidavit sworn 13 September 2006 states that Category A exams of which Litigation and Routine Legal Office Functions were comprised, were marked by a marking panel which is separate from the teachers of the Business Administration and Technology at TAFE. The affidavit also states that once the papers have been marked they are forwarded directly to the Students Records Department at each college and therefore a teacher would not know the grading of a student from their class. 189 Mrs Elfert testified that although she was a member of the marking panel there are 'strict protocols' in place to prevent a person marking the papers of a student from that person's own college and that she did not have access to Ms Obieta's exam papers nor did she mark them. COMPLAINT AGAINST DEPARTMENT OF EDUCATION AND TRAINING AND VETAB 43. Failure to take appropriate action 190 Ms Obieta says that VETAB advised her by letter dated 4 February 2005 that it was satisfied by the way in which TAFE had conducted the complaint against it and that the conduct of Mr Norman did not constitute discrimination towards any student. However VETAB did not respond regarding the results of the audit of the students' records in relation to discrepancies and failed to respond to the complaints regarding bullying and victimisation by the students. She says VETAB did nothing to resolve her complaints and failed to take any appropriate action. For these reasons she claims that there was discrimination by the Department and VETAB against her in breach of ss 9, 13, 17, 18C, and 27 of the RDA and ss 21, 28F and 94 of the SDA. 191 The Department and VETAB deny that Ms Obieta's complaint was not handled correctly. complaints against tafe 44. Failing to take appropriate action 192 Ms Obieta says that she was treated less favourably and that TAFE's conduct involved an exclusion, segregation, restriction and preference based on race. She also claims that TAFE discriminated against her under the SDA arising out of the same conduct. 193 Ms Obieta claims that TAFE failed to take appropriate action to resolve all the discrimination that occurred during her period of study and failed her in the course which prevented her from obtaining her qualification. She says that she was penalised by TAFE and discriminated against in breach of ss 9, 13, 17, 18C and 27 of the RDA and ss 21, 28F and 94 of the SDA. 194 TAFE denies such allegations. 45. victimisation in relation to exclusion from supplementary exams 195 Ms Obieta says she was not given any options or advice in relation to the two modules she failed and was never given the opportunity to sit for a supplementary exam until she lodged a complaint with the Commission for discrimination and victimisation. She said that she learnt of the availability of supplementary exams from the submission of Mr Phillip Carroll of TAFE which was provided to the Commission dated 10 October. Accordingly Ms Obieta claims that she was discriminated against in breach of ss 9, 13 and 27 of the RDA and ss 21 and 94 of the SDA. 196 The affidavits of Mrs Elfert and Ms Illingworth state that it is the responsibility of students to request supplementary examinations, the procedure for which is set out in the 'Revised Policy on Review of Results'. Ms Davis and Ms Fogarty stated in oral evidence that Ms Illingworth had told the students on a number of occasions that if they failed a Category A exam it was their responsibility to approach her as Head Teacher, to make arrangements to undertake revision exercises and supplementary exams. Mrs Elfert also says that Ms Obieta was not the only student to fail a Category A exam and that another class member, Ms Chong had failed, re-sat and subsequently passed the examination. 46. No offer to sit supplementary exams 197 Ms Obieta says that on 17 March 2005 her solicitor, Ms Jill Yates of Hargreaves Practice, wrote to TAFE on her behalf concerning her complaint. However TAFE did not offer the opportunity to do any supplementary exam and therefore discriminated against her in breach of ss 9, 13 and 27 of the RDA and ss 21 and 94 of the SDA. 198 The Department and TAFE refer to the affidavits of Mrs Elfert and Ms Illingworth which state that it is the responsibility of the student to arrange for supplementary exams after failing a Category A exam, as referred to above. 199 Ms Davis testified that Ms Illingworth often told class members of the procedure to be followed if they failed Category A examinations, namely that they should approach her and ask her to make arrangements to do revision exercises and supplementary exams. 200 Ms Fogarty also testified that Ms Illingworth told the students of the process to be followed if they failed a Category A examination. Her evidence confirmed that of Ms Davis and of Ms Illingworth. 47. TAFE did not award Diploma 201 Ms Obieta complains that TAFE discriminated against her and that she did not obtain her qualification because she was excluded from revision exercises and excluded from doing the supplementary examination. As such it is claimed that this constituted breaches of ss 9, 13 and 27 of the RDA and ss 21 and 94 of the SDA. 202 The Department and TAFE make the same response as in 46 above and deny the allegations. 48. TAFE did not award Diploma and hindered career opportunities 203 Ms Obieta claims that TAFE victimised her, has caused damage and affected her life, health and career opportunities. She also claims to have lost her self esteem and confidence. Accordingly she was discriminated against by TAFE in breach of ss 9, 13 and 27 of the RDA and ss 21 and 94 of the SDA. 204 The Department and TAFE deny the allegations. III RELEVANT LEGAL PRINCIPLES 205 The majority of the claims of Ms Obieta are made under specified provisions of the RDA and the SDA. Ms Obieta claims that the conduct of the first, second and third respondents and that of several of their employees and also of Mr Norman, Ms Davis and Ms Fogarty and other students, variously constitutes racial discrimination pursuant to ss 9, 10, 13, 18 and 18C of the RDA, intimidating and coercive behaviour in breach of s 27(2) of the RDA, inciting unlawful acts under s 17 of the RDA, and vicarious liability pursuant to ss 18A and 18E of the RDA. Ms Obieta also makes allegations of sexual discrimination and harassment purportedly pursuant to ss 5, 21, 28A of the SDA, allegations of sexual harassment specifically in the context of educational institutions pursuant to s 28F of the SDA, allegations that the respondents have committed the offence of victimisation pursuant to s 94 of the SDA, allegations that the respondents have caused, instructed, induced, aided or permitted another person to do an act that would be unlawful under the SDA pursuant to s 105 of the SDA, and claims of vicarious liability pursuant to s 106 of the SDA. In addition, Ms Obieta claims that the respondents have breached provisions of the International Convention for the Elimination of All Forms of Racial Discrimination (entered into force 2 January 1969) ('ICERD'), the International Covenant on Civil and Political Rights (entered into force 23 March 1976)('ICCPR'), the Convention for the Elimination of All Forms of Discrimination against Women (entered into force 27 August 1983) ('CEDAW') and the Convention Concerning Discrimination in Respect of Employment and Occupation, (entered into force 15 June 1960) ('CDREO'). Racial Discrimination 206 Section 9(1) of the RDA makes it unlawful for a person to do any act that constitutes racial discrimination. 207 For Ms Obieta to establish that any of the conduct of which she complains amounts to racial discrimination under s 9(1) of the RDA she must establish the occurrence of an act involving 'a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin' which had the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing of Ms Obieta's human rights or fundamental freedoms: see s 9(1) of the RDA. 208 The elements that Ms Obieta must establish to prove race discrimination within the meaning of s 9(1) of the RDA are as follows: a person must do an 'act'; the act must involve either a 'distinction', 'exclusion', 'restriction' or 'preference' in the areas of 'social' or 'cultural' life or any 'field of public life'; the act must be based on race; the act must have either the purpose or the effect of impairing a human right; and the relevant 'human right' is identified. 209 The expression 'act' is not defined in the RDA. The determination of whether there has been a 'distinction', 'exclusion', 'restriction' or 'preference' must be determined objectively based on an assessment of the evidence. 210 The requirement to identify that the particular 'distinction', 'exclusion', 'restriction' or 'preference' was 'based on' Ms Obieta's race has been the subject of judicial determination in Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission and Another (1998) 91 FCR 8. At [33] the Court considered that the words 'based on' required a test of 'sufficient connection' with race rather than a 'causal nexus'. Weinberg J distinguished the expression 'based on' from other constructions used elsewhere in Federal anti-discrimination legislation (such as 'by reason of' or 'on the ground of'). The words 'based on' encompass a broader meaning of 'by reference to' and are not limited to 'by reason of' (at [30]). What is required is a close relationship, between the designated characteristic and the impugned conduct, which is not necessarily causal (at [33]): see also Baird and Others v Queensland (No 1) (2005) 224 ALR 541 and Commonwealth v McEvoy and Another (1999) 94 FCR 341 for an analysis of the meaning of 'based on'. 211 The effect of s 18 of the RDA is that Ms Obieta does not have to establish that race was the only reason for the act. It is sufficient if it were one of the reasons. 212 The standard of proof that is required to establish unlawful conduct under s 9 of the RDA was considered in Sharma v Legal Aid (Qld) [2002] FCAFC 196; (2002) 115 IR 91. The Full Court at [40] said: 'It is for the applicant who complains of racial discrimination to make out his or her case on the balance of probabilities. It may be accepted that it is unusual to find direct evidence of racial discrimination, and the outcome of a case will usually depend on what inferences it is proper to draw from the primary facts found: Glasgow City Council v Zafar [1998] 2 All ER 953, 958. There may be cases in which the motivation may be subconscious. There may be cases in which the proper inference to be drawn from the evidence is that, whether or not the employer realised it at the time or not, race was the reason it acted as it did: Nagarajan v London Regional Transport [1999] 3 WLR 425, 433. It was common ground at first instance that the standard of proof for breaches of the RDA is the higher standard referred to in Briginshaw v Briginshaw (1938) 60 CLR 336, 361-362. Racial discrimination is a serious matter, which is not lightly to be inferred: Department of Health v Arumugam [1988] VR 319, 331. No contrary argument was put on the hearing of the appeal, apart from the comment that there is no binding authority on this Court that Briginshaw should be applied in cases of this nature. In a case depending on circumstantial evidence, it is well established that the trier of fact must consider "the weight which is to be given to the united force of all the circumstances put together". One should not put a piece of circumstantial evidence out of consideration merely because an inference does not arise from it alone: Chamberlain v The Queen [No 2](1983-1984) 153 CLR 521 at 535. It is the cumulative effect of the circumstances which is important provided, of course, that the circumstances relied upon are established as facts.' 213 Under s 9 it is also necessary to establish the relevant human right which has been impaired because of race. The expression 'human right' for the purpose of the RDA incorporates the rights set out in the International Convention on the Elimination of all Forms of Racial Discrimination (CERD) scheduled to the RDA. The preamble to the RDA recites the entry into force of the CERD and the desirability of parliament making provision for giving effect to the CERD. Von Doussa J in Commonwealth v McEvoy and Another 94 FCR noted at [31] that: 'It is apparent that in adopting the phrase "race, colour, descent or national or ethnic origin" in s 9…Parliament has transported into the domestic law of Australia, through the RDA, text from Article 1.1 of the International Convention on the Elimination of All Forms of Racial Discrimination' 214 In addition it was noted in Gerhardy v Brown (1985) 159 CLR 70 that for the purposes of s 9 of the RDA 'human rights' may include those included in other international instruments to which Australia is a party. One such other instrument is the International Covenant on Civil and Political Rights (ICCPR) (as provided in Schedule 2 to the HREOC Act) which is relied upon by Ms Obieta. 215 To succeed in establishing a claim under s 9(1A) of the RDA that there was an act involving a distinction based on, or done by reason of, her race, colour, decent or national or ethnic origin, Ms Obieta must establish that a term, condition or requirement that was not reasonable in the circumstances was imposed upon her (see s 9(1A)(a)). As was held by McHugh J in Waters and Others v Public Transport Corporation (1991) 173 CLR 349 at 406 in reference to a similar provision in Victorian anti-discrimination legislation (see s 17(5)(a) Equal Opportunity Act 1984 (Vic)), such term, condition or requirement would need to be identified with precision. 216 Further, under s 9(1A)(b) Ms Obieta must established that she does not or cannot comply with the term, condition or requirement and under s 9(1A)(c), that the requirement has the purpose or effect of interfering with the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as Ms Obieta, of any relevant human right or fundamental freedom. 217 Section 10 of the RDA relevantly provides for a right of equality before the law and that the laws of the Commonwealth, States and Territories are to apply generally to all people regardless of their race, colour, national or ethnic origin. Ms Obieta must show that under a particular law, she does not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or that she enjoys that right to a more limited extent. Once this has been established then notwithstanding the particular law in question, by force of this section, she is entitled to enjoy the right to the same extent as persons of another race, colour or national or ethnic origin. 218 Section 13 of the RDA specifically deals with the provision of goods and services to the public and makes it unlawful for a person to refuse or fail to supply goods or services to another person or to do so on less favourable terms because of the race, colour or national or ethnic origins of that other person. To establish a claim under this section, Ms Obieta must establish that by reason of her race, colour or national or ethnic origin or that of any of her relatives or associates, the supply of goods or services was refused to her or that there was a failure on her demand to supply such goods or services (s 13(a)). Such claim could be established if such goods or services were supplied to Ms Obieta on terms or conditions less favourable than such goods and services would otherwise be supplied by reason of Ms Obieta's race, colour or national or ethnic origin or that of her relatives or associates (s 13(b)). 219 Section 18 of the RDA is a deeming provision which provides that if an act is done for two or more reasons and one of the reasons is because of the race, colour, descent or national or ethnic origin of a person, then for the purposes of Part II of the RDA, the act is taken to have been done for that reason. Under s 18(b) there is no requirement that the reason for the act being the race, colour, descent or national or ethnic origin of the person be the dominant reason or a substantial reason for doing the act. 220 Section 18A of the RDA provides that employers or principals are vicariously liable for the acts of their employees or agents in circumstances that if the act was done by the employer or principal it would be unlawful under Part II of the RDA. Section 18A(2) provides that vicarious liability does not apply to an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing the act. For Ms Obieta to establish a claim under this section she must establish that there was an act; that the act was done by an employee or agent of a person; that the act was done in connection with his or her duties as an employee or agent (s 18A(1)(a)); and that the act would be unlawful under Part II of the RDA if it were done by that person (s 18A(1)(b)). 221 Section 18C of the RDA makes it unlawful for a person to do any act (otherwise than in private) if the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or group of people (see s 18C(1)(a)). Pursuant to s 18C(1)(b), the act must have been done because of the race, colour or national or ethnic origin of the other person or all of the people in the group. Thus the first inquiry of s 18C is whether the act in question, can in the circumstances be regarded as reasonably likely to offend or humiliate a person in Ms Obieta's position. 222 In Bropho v Human Rights and Equal Opportunity Commission and Another (2004) 135 FCR 105, French J observed at, [69] that the words 'offend, insult, humiliate or intimidate' are to be considered according to 'their ordinary meaning, in their context, acknowledging their somewhat elastic content and having regard to the objectives of the legislation…' . These objectives, it was noted, are to be gleaned not only from the words of the legislation but also from extraneous material such as, inter alia, the Second Reading Speech of the Racial Hatred Bill 1994 (Cth) ('Second Reading Speech'). The Second Reading Speech provides that the Act was intended to 'close a gap in the legal protection available to the victims of extreme racist behaviour': see Bropho 135FCR at [70]. In Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 at 356-357 Kiefel J said that the conduct which is encompassed by s 18C of the RDA is that which has, 'profound and serious effects not to be likened to mere slights'. 223 Section 18C of the RDA requires the satisfaction of an objective test of the likelihood that the act complained of will have the prohibited effect: see Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 at [15]. The objective nature of the test was also considered in Bropho 135 FCR where French J at [66] citing the Second Reading Speech said: 'Community standards of behaviour rather than the subjective views of the complainant are taken into account' (Australia, House of Representatives Debates (1994), p334). 224 A similar observation of the requirement of objectivity was made by Brown FM in Kelly-Country v Beers and Another (2004) 207 ALR 421 at [84]. 225 The question of causation that arises in the application of s 18C(1)(a) has been considered in numerous cases. In Purvis v New South Wales (Department of Education and Training) and Another (2003) 202 ALR 133 at 138 the High Court explained per Gleeson CJ, at 171-2 per McHugh and Kirby JJ, at 187 per Gummow, Hayne and Heydon JJ, that the accepted test for causation in the context of anti-discrimination legislation focuses on the 'genuine basis' or 'the true basis' or 'real reason' for the act of the alleged discriminator. The question of causation was also considered in Bropho 135 FCR at [71]wherein French J referred to the description by Kiefel J in Creek v Cairns Post 112 FCRat [28] of the key causation issue as 'whether anything suggests race as a factor' in the act in question. Kiefel J at [23] adopted the approach to the construction of statutory provisions similar to s 9 of the RDA taken by McHugh J in Waters 173 CLRat 401. 226 In the latter case McHugh J said referring to s 17(1) of the Equal Opportunity Act 1984 (Vic): 'The words "on the grounds of" and "by reason of" require a causal connexion between the act of the discriminator which treats a person less favourably and the status … of the person the subject of that act ("the victim"). The status … of the victim must be at least one of the factors which moved the discriminator to act as she or he did.' 227 In Toben v Jones (2003) 129 FCR 515 at [31] Carr J agreed with the adoption by Kiefel J of the approach taken by McHugh J in Waters 173 CLR. At 31 Carr J said: 'The authorities on the issue of causation in the context of the discrimination legislation were reviewed by Kiefel J in Cairns Post at [19]-[27]. It seems clear from what her Honour said at [22] that she regarded the assessment of a reason as being an objective one, but not one which excluded any evidence of the relevant person's intention or motive. Regard was to be had to all the circumstances. I respectfully agree with that approach.' 228 Section 18E of the RDA is essentially similar to the vicarious liability provision in s 18A of the RDA except insofar as s 18E provides for the vicarious liability of employers or principals for acts of their employees or agents rendered unlawful pursuant to the provisions of Part IIA of the RDA. For Ms Obieta to establish claims under this provision she would have to satisfy the same elements as for s 18A of the RDA. 229 Section 27(2) of the RDA provides for offences relating to the administration of the RDA. To establish her claims pursuant to this section Ms Obieta must demonstrate that the particular respondent acted in a way to intimidate or coerce, or impose any pecuniary or other penalty on Ms Obieta 'by reason that' Ms Obieta had made or proposed to make a complaint of unlawful discrimination, or had furnished or proposed to furnish information to the Commission, or proposed to attend a conference held under the RDA or the HREOC Act. In Microsoft Corporation and Another v Marks (No 1) 1996 69 FCR 117 Beaumont J noted at 137 that a proceeding should be classified as civil or criminal when it is commenced, and where the substance and object of the proceedings are remedial the proceeding should be classified as civil. 230 Despite the fact that one of the options of the Court in s 27(2) of the RDA is the imposition of a penal sentence, it has been held that the civil standard should nevertheless apply where the substance of the proceedings are civil (see In Marriage of Lindsey (1995) 128 FLR 46). The majority of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Others (1992) 110 ALR 449 has emphasised the fact that the ordinary standard of proof in civil litigation is proof on the balance of probabilities even when the matter to be proved involves criminal conduct or fraud (see Rejfek and Another v McElroy and Another (1965) 112 CLR 517 at 519-21). It was also held in that case that the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. 231 Under s 17(a) of the RDA it is unlawful for a person to incite the doing of acts made unlawful by a provision of Part II of the RDA. Further s 17(b) makes it unlawful for a person to assist or promote the doing of such an act (whether by financial assistance or otherwise). In Shaikh v Campbell & Nivona Pty Ltd [1998] HREOCA 13 (24 April 1998), in referring to s 17 of the RDA, Commissioner Innes AM stated at 8: 'In order to make out a case under this section the complainant has to show incitement, assistance or promotion of someone carrying out unlawful acts. Incitement denotes encouragement in an active way.' 232 To establish her claims pursuant to this section, Ms Obieta must show that the particular respondents were actively inciting or encouraging behaviour that is made unlawful by a provision of Part II of the RDA (s 17(a)) or that the respondents assisted or promoted the doing of such acts (s 17(b)). Sexual Discrimination, sexual harassment and victimisation 233 Section 5 of the SDA provides a definition of sex discrimination under the SDA and does not of itself give rise to a cause of action. It essentially provides the conditions that are required before a person called the 'discriminator' (s 5(1)) can be found to have discriminated against another person called the 'aggrieved person' (s 5(1)) on the grounds of the sex of the aggrieved person. Under s 5(1) if by reason of the sex of the aggrieved person, or a characteristic that generally pertains to or is generally imputed to a person of that sex, the discriminator treats the aggrieved person less favourably than the discriminator treats or would treat a person of the opposite sex, then the discriminator has discriminated against the aggrieved person. Ms Obieta must establish that the respondent in question treated her less favourably than the respondent would treat a person of the opposite sex in circumstances that are the same or not materially different. 234 Section 21(2) of the SDA renders it unlawful for an education authority to discriminate against a student on the grounds, inter alia, of the student's sex relevantly by denying or limiting the student's access to any benefit provided by the educational authority (s 21(2)(a)); or by subjecting the student to any other detriment ( s 21(2)(c)). 235 For Ms Obieta to establish a claim under s 21(2)(a) of the SDA she must prove that the respondents discriminated against her on the ground of her sex pursuant to the definition in s 5 of the SDA, either by denying or limiting her access to any benefits provided by the educational authority (s 21(2)(a)) or by subjecting her to any other detriment (s 21(2)(c)). 236 In Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44, a case which considered, inter alia, the meaning of 'detriment' in comparable state legislation, the Administrative Decisions Tribunal ('ADT') found that the word 'detriment' should be given its common meaning of 'loss, damage or injury' (at [40]). It was also said in that case that '[t]he detriment suffered… must be real and not trivial' and 'whether something constitutes a detriment must be determined objectively and not subjectively' (at [41]). In Damiano and Another v Wilkinson and Another [2004] FMCA 891 at [23] Baumann FM considered the meaning of detriment gleaned from three authorities as follows: '… [T]he definition of detriment [is] placing a complainant "under a disadvantage of a matter of substance" (Bogie v University of Western Sydney (1990) EOC 92-313) or "suffers a material difference in treatment" (Bailey v Australian National University (1995) EOC 92- 744) which is "real and not trivial" (Sivanathan [sic] v Commissioner of Police (NSW) (2001) NSWADT 44)' 237 Similar to s 5 of the SDA, s 28A of the SDA is a definitional section and does not of itself give rise to a cause of action. It provides the definition of sexual harassment and in order for Ms Obieta to establish that any of the conduct alleged constitutes sexual harassment she must establish that a person made an unwelcome sexual advance, or an unwelcome request for sexual favours to her (s 28A(1)(a)) or that a person engaged in other unwelcome conduct of a sexual nature directed at her (s 28A(1)(b)). This section prescribes an objective test as it is a requirement that the impugned conduct occurred: 'in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that… [Ms Obieta]… would be offended, humiliated or intimidated.' 238 Section 28A(2) defines 'conduct of a sexual nature' as including 'making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing'. Where it is alleged that conduct is unlawful under the SDA, the context of the conduct must be considered. In Cooke v Plauen Holdings [2001] FMCA 91, Driver FM observed that whether an act or statement can constitute sexual harassment will depend upon the nature or the quality of the act or statement. 239 For Ms Obieta to establish her claims under section 28F of the SDA she is required to establish that the relevant staff member (s 28F(1)) or adult student (s 28F(2)) of TAFE sexually harassed her. That is, pursuant to s 28A of the SDA, Ms Obieta would have to establish that the relevant respondent made an unwelcome sexual advance, or an unwelcome request for sexual favours (s 28A(1)(a)) or engaged in other unwelcome conduct of a sexual nature (s 28A(1)(b)) in circumstances in which a reasonable person having regard to all the circumstances, would have anticipated that Ms Obieta would be offended, humiliated or intimidated. 240 Pursuant to s 94(1) of the SDA it is an offence for a person to commit an act of victimisation against another person. Pursuant to s 94(2) Ms Obieta is required to establish that the relevant respondent subjected, or threatened to subject her to any detriment on the grounds that Ms Obieta had or was believed to have made or proposed to make a complaint under the SDA or under the HREOC Act (s 94(2)(a)); or that Ms Obieta had brought or proposed to bring proceedings under the SDA or the HREOC Act against any person (s 94(2)(b)); or that Ms Obieta had furnished or produced or proposed to furnish or produce any information or documents to anybody exercising functions under the SDA or the HREOC Act (s 94(2)(c)); or that Ms Obieta had attended or proposed to attend a conference held under the SDA or the HREOC Act (s 94(2)(d)); or that Ms Obieta appeared or proposed to appear as a witness in proceedings under the SDA or the HREOC Act (s 94(2)(e)); or that Ms Obeita has reasonably asserted or proposed to assert any rights under the SDA or the HREOC Act (s 94(2)(f)); or that Ms Obieta had made an allegation that a person had done an act that is unlawful under Part II of the SDA (s 94(2)(g)). In Damiano [2004] FMCA 891 Baumann FM at [22] said, referring to Bailey v ANU (1995) EOC 92-744, that for victimisation to be established under comparable legislation one of the grounds under a section comparable to s 94(2) of the SDA must be a 'substantial and operative' factor for the alleged action. 241 Under s 105 of the SDA a person who causes, instructs, aids or permits another person to do an act that is unlawful under Division 1 or 2 of Part II shall, for the purposes of the SDA, be taken also to have done the act. The meaning of the word 'permit' was discussed in Cooper v Human Rights and Equal Opportunity Commission and Another (1999) 93 FCR 481 at 494-495, [41]-[45]. Moore J in Elliott v Nanda and Another (2001) 111 FCR 240 at 293, [163]explained the operation of s 105 as pertaining to the situation where a person who is in a position to prevent allegedly unlawful conduct fails to do so. His Honour said: 'Section 105 provides a means of bringing about lawful conduct by rendering liable a person who could prevent unlawful conduct from occurring or continuing or who assists, directly or indirectly, in its performance. A person can prevent unlawful conduct by not creating a situation where it will or may take place or altering a situation so it will not continue.' 242 Section 106 provides for the vicarious liability of employers for acts of their employees that would, if the act was done by the employer, be unlawful under Division 1 or 2 of Part II or be unlawful under Division 3 of Part II of the SDA. Section 106(1) does not apply if it is established that the employee took all reasonable steps to prevent the unlawful act taking place (s 106(2)). For the question of vicarious liability to arise, Ms Obieta would need firstly to establish that the acts alleged of the relevant employee amounted to an unlawful act under Division 1 or 2 of Part II or Division 3 of Part II of the SDA. IV CREDIT 243 Ms Kim Hua Chong provided two affidavits in support of Ms Obieta's allegations dated 16 June 2006 and 16 September 2006 respectively. Ms Chong told the Court that the affidavits were prepared by herself with the assistance of her cousin who is a solicitor. Many passages were identical, both in the words used and in the punctuation, to the passages relating to the same incidents and recitation contained in Ms Obieta's affidavits. This was apparent in numerous instances in both her affidavits. 244 On 18 October 2006 Ms Chong swore that she did not consult with Ms Obieta, and did not see Ms Obieta's affidavits before she prepared her own affidavits. She swore that the content of her affidavit was from her own memory, and that her cousin assisted her. She denied that her cousin had a copy of Ms Obieta's affidavit. 245 Ms Chong also swore that despite the fact that she was only asked to provide her affidavits close to the time they were sworn, that she nevertheless was able to recollect in detail events and conversations which occurred almost 18 months previously. Ms Chong reiterated that she had not collaborated with Ms Obieta and that the content of the affidavits was from her own recollection. 246 At the request of counsel for the first to fourth respondents, the Court provided a warning relating to perjury and the Court adjourned. 247 The next day on 19 October 2006 Ms Chong indicated that she wished to withdraw from the hearing, and to withdraw her evidence. She read the following statement: 'Your Honour, firstly it is like this. I would like to apologise and extremely sorry for not telling the Court the truth yesterday, because I was stressed being a witness in Court, and workload and work, and my English. Please disregard what I said yesterday. And, secondly, my cousin who is a lawyer did not help me to prepare the affidavit. Thirdly, Ms Obieta help me to draft the affidavit and I sign, because of my English and my grammar is no good. And in the beginning I didn't know that I can withdraw the affidavit because I kept on thinking that I already sign the affidavit. What should I do? Now that I can withdraw the affidavit I decided to withdraw as witness.' 248 Ms Chong acknowledged that she did not write anything but her name: 'Well, did you write any part of it, except for your name?‑‑‑Sorry. Again? Did you write any part of those affidavits, except for your name?‑‑‑No. So all of the words are Ms Obieta's words?‑‑‑Yes.' 249 Despite the above, the Court asked Ms Chong whether she had a recollection of the events relied upon by Ms Obieta. It became apparent that she had difficulty with the English language. Ms Chong recalled some of the incidents referred to in her affidavits. However, it was impossible to know whether such recollection resulted from the text of the affidavits which Ms Obieta prepared for her, or from independent recollection. For this reason, and taking into consideration the fact that she had provided no independent evidence of substance, the Court places no weight on her testimony or affidavits. 250 Ms Chong withdrew as a witness after Ms Obieta acknowledged that she did not wish to persevere with her testimony. 251 It is disturbing that Ms Obieta was prepared to permit testimony to be given to the Court by Ms Chong which she knew was false. Ms Obieta told the Court that Ms Chong's cousin who is a lawyer helped her prepare Ms Chong's affidavit. Such statement was untrue. 252 Further disturbing conduct occurred when Ms Obieta made statements from the Bar table which were false. Such statements related to the preparation of Ms Chong's affidavits. 253 The transcript records the following: 'Do you agree that what you told the Court from the bar table was not true?‑‑‑Well, some part of it. What part of it was not true?‑‑‑The typing. The typing – the typing of the affidavit. You told the Court that your computer was slow, and therefore Ms Chong typed up the affidavits?‑‑‑Yes, your Honour. That is what you told the Court. Is that true or false?‑‑‑It is false.' 254 The first to fourth respondents submit: 'It is clear that the applicant had been caught out providing false information to the Court. When confronted with this reality the applicant made what can only be described as a disingenuous and nonsensical attempt to draw a distinction between lying from the bar table and lying on oath: T 351.21-.29, (19/10/06).' The Court accepts that but for the ultimate honesty of Ms Chong, Ms Obieta would have deliberately deceived the Court. 255 Ms Obieta has further alleged that the TAFE records have been falsified and in particular that the record of Ms Ramos had been altered. She alleged also that Ms Illingworth swore a false affidavit and that she believed that the Crown Solicitor of NSW was complicit in such conduct. Ms Obieta also alleges that TAFE had tampered with a letter forwarded by Ms Obieta's previous solicitor. Even when that solicitor produced a computer generated copy, identical to that which was sent to TAFE except for the absence of the letterhead, Ms Obieta maintained that there were discrepancies in the content of the letter. 256 Having made observations during oral evidence, and having considered their testimony, I find that the respondent's witnesses, the teachers of Ms Obieta, and staff of TAFE namely Mr Norman, Mrs Elfert, Ms Illingworth, Ms Lawson, Ms Willis and Mr Stewart were dedicated educators whose evidence I accept. I have also formed the view that Ms Connellan, Mr Hassett, Ms Davis and Ms Fogarty were all truthful witnesses. 257 Surprisingly, Ms Obieta did not suggest to any of the witnesses that the conduct she relied upon as establishing discrimination was based upon her race, sex, nor that such actions arose in consequence of a proposal by her to make a complaint to the Commission. 258 The Court finds that where evidence conflicts between that of Ms Obieta and other witnesses, the Court must consider these findings of credit in determining whether the burden of proof has been satisfied. V FINDINGS 259 Three important considerations arise from the above. Firstly, the burden of proof lies upon Ms Obieta to establish discrimination, harassment or victimisation whether it arises pursuant to the RDA or the SDA. Secondly, with respect to claims of unlawful discrimination, harassment or victimisation under the RDA, it is essential that the discrimination, harassment or victimisation be proved, on the balance of probabilities, on the ground of Ms Obieta's race (see Victoria v Macedonian Teachers' Association of Victoria Inc and Another (1999) 91 FCR 47). Similarly, with regard to a claim for sexual discrimination, harassment or victimisation under the SDA, discrimination, harassment or victimisation based upon Ms Obieta's sex must be established on the balance of probabilities: see Aboriginal Legal Rights Movement Inc v South Australia and Another (No1) (1995) 64 SASR 551 at 553. 260 The findings of the Court in relation to each of Ms Obieta's allegations are set out below and must be read in conjunction with the section entitled Relevant Legal Principles. complaints against Mr Norman 1. 'Blue eyed – Brown eyed' incident 261 The Court accepts the evidence of Mr Norman that the statement relied upon by Ms Obieta occurred during a class exercise and was made in the context of a recent television program. It is not established that the words 'the other one comes from the Philippines and the other one has a history of China' were ever said by Mr Norman. 262 Taking into account the context of the discussion, the Court is satisfied that the selection of Ms Obieta to take part in the debate did not involve a distinction, exclusion, restriction or preference based upon race, colour, descent or national or ethnic origin. Accordingly, no breach of s 9 of the RDA is established. Further the statement was not reasonably likely to offend, insult, humiliate or intimidate, nor was it done because of Ms Obieta race, colour, or national or ethnic origin and so does not establish a breach of s 18C of the RDA. 2. Award of low marks 263 Ms Obieta has not discharged the onus of proof in establishing that there was any bias or lack of objectivity on the part of Mr Norman in the grading of tests, assignments and reports prepared by her. In any event, such conduct would not establish a breach of ss 9(1) and 13 of the RDA as the onus of establishing that there was a distinction, exclusion, restriction or preference which was based on Ms Obieta's race or that she was refused supply of goods and services because of her race is not satisfied. 3. Reference to hostile people 264 The Court accepts Mr Norman's evidence concerning the making of such statement. Even if such statements had been said, they would not amount to a breach of ss 9 and 13 of the RDA as there is no evidence that such statement was based on Ms Obieta's race. 4. Refugee allegation 265 The Court is not satisfied that the onus of proof has been satisfied to establish that such words were said as alleged. Further, even if such words were said, the context would not render them words which would constitute a breach of ss 9(1) and 18C of the RDA. Such words, even if said could not have affected the enjoyment or exercise of a human right as required by s 9(1) of the RDA. Further there is no evidence to establish that in the context in which any such words were said, they would be reasonably likely to offend, insult, humiliate or intimidate Ms Obieta. 5. Afghani Detainee 266 The Court accepts that there was a discussion in class concerning the needs of a hypothetical Afghani detainee and the needs of such detainee, however the Court is not satisfied that the words allegedly said by Mr Norman were in fact said. Further, contrary to the Court's finding, even if such words had been used by Mr Norman, such conduct would not amount to a breach of s 28F because the requirement of the definition of 'sexual harassment' contained in s 28A would not have been established. The circumstances were not such that a reasonable person would anticipate that Ms Obieta would be offended, humiliated or intimidated. 6. Reference to shoes of Imelda Marcos 267 The Court accepts the evidence of Ms Fogarty that such words were said by another student. Accordingly the Court finds that Mr Norman did not say the words alleged. 7. Centrelink allegation 268 The Court accepts Mr Norman's evidence that he did not know which, if any, students were supported by Centrelink and that the term 'Mutual Obligation Scheme' was not known to him. The Court therefore finds the allegation not proved. Further, if, contrary to the Court's finding such words had been said, there is no evidence that they were racially based and accordingly there is no evidence of any breach of the RDA. 8. Roll call allegation 269 The Court accepts Mr Norman's evidence that he called out the names of the students who he could not readily see or recognise and that since Ms Obieta was well known to him and was always visible sitting in the front row, it was unnecessary for him to call out her name. The Court finds that the evidence does not establish a basis for a claim of racial discrimination and there is accordingly no breach of the RDA. 9. Failure to mark fairly 270 The Court does not accept that Ms Obieta was marked unfairly in her class test and assignment by Mr Norman. The Court finds that there is no evidence of any unfairness in the grading system. Further, there is no evidence that any such conduct, even if proved, was motivated by race. Accordingly there was no breach of the RDA. 10. Fast dictation 271 The Court finds that on occasions Mr Norman may have dictated quickly and when requested by students to slow down he would do so. The Court is also satisfied that if such occasion arose, it was unintentional. The Court finds that there is no discrimination based upon race, nor is there any evidence that such conduct constituted sexual harassment of Ms Obieta as claimed as in the circumstances a reasonable person would not have anticipated that Ms Obieta would be offeneded, humiliated or intimidated by such conduct. 11. Gay incident 272 Mr Norman acknowledges that a question was asked by Ms Obieta and the Court finds that he responded as he states and that this was appropriate. The Court finds that there was no dispute as alleged by Ms Obieta. 273 Even if, contrary to the Court's finding, Mr Norman responded as Ms Obieta alleges, there is no evidence that such conduct was racially based. It follows that there was no breach of the RDA. 12. Allegations of sexual discrimination 274 The Court is unable to find, on the balance of probabilities, that the words were used as alleged, nor that the incident Ms Obieta refers to occurred in the manner she claims. Further, even if, contrary to the Court's finding, such words were said, the context was that of a class discussion. The Court is satisfied that such occasion does not give rise to sexual harassment within the meaning of s 28A of the SDA as a reasonable person would not anticipate that Ms Obieta would be offended, humiliated or intimidated by such conduct. Further such conduct does not constitute an unwelcome sexual advance or request or other unwelcome behaviour of a sexual nature and could not therefore constitute a breach of the SDA. Victimisation 275 Ms Obieta appears to repeat allegations she has already made concerning the dictation of Mr Norman, with a variant that he mumbled when dictating as well as dictating fast. She repeats an allegation of humiliation and that she received less favourable treatment than other students in her class test marks. 276 The Court finds that the burden of proof in relation to any of the factual issues has not been established. Even if, contrary to the Court's finding, the factual matters, insofar as they have been already considered in the preceding paragraphs did occur, then there is no evidence that such conduct arose in consequence of Ms Obieta's race or sex or because Ms Obieta had made complaints against Mr Norman to Ms Illingworth. 13. Writing on blackboard/white board 277 The Court finds that Ms Obieta may have been requested, during the class exercises, to write something on the board. However, there is nothing to suggest that the request of Mr Norman to do so in such circumstances was done in consequence of her race or constituted sexual harassment or discrimination. 14. Costs agreement 278 The Court accepts Mr Norman's evidence concerning his conversation relating to the need for a costs agreement. In these circumstances there is no factual basis for the allegations made. Even if the Court were in error in so concluding, upon the facts alleged, they would not give rise to any issue under the RDA because there is no suggestion that the statements of Mr Norman were related to Ms Obieta's race. Further, there is no evidence that such conduct had any relationship to her sex. Accordingly, there is no basis for the claims made under the RDA and the SDA. 15. Date of course ending 279 The Court finds that there was a discussion concerning the date of the last week of lessons. However the conduct referred to does not establish any basis of racial or sexual discrimination. 16. More favourable treatment for Ms Ramos 280 The Court accepts that Mr Norman inadvertently referred to another student using Ms Obieta's name. Mr Norman acknowledges that this was an unintentional error and there was no intention to incite any feeling of contempt for Ms Obieta. The Court accepts Mr Norman's explanation. Further the Court finds that there is no evidence that such conduct arose because of any racial distinction or oppression, nor is there any evidence that it was based upon Ms Obieta's sex. Accordingly the Court finds that there is no breach of either the RDA or the SDA. 17. Approach of Mr Norman to Ms Obieta 281 The Court notes that Mr Norman does not recall the incident and the Court considers that, without corroboration, it could not be satisfied, on the balance of probabilities, that any such incident occurred as claimed. Further, even if, contrary to the Court's finding, such incident occurred, there is nothing to suggest that it was made on the basis of Ms Obieta's race or sex. Accordingly the Court does not find any breaches of the RDA or the SDA as claimed. 18. Credit/distinction 282 The Court accepts that on 10 November 2004 there was some confusion in the class concerning the marks that had been allocated for a particular assignment. However, the Court is satisfied that there is no basis for any alleged racial or sexual discrimination of Ms Obieta. 19. Throwing of examination papers 283 The burden of proof of the allegation that Mr Norman threw Ms Obieta's class test at her is not discharged. Further, the Court does not find from this incident any facts which suggest that the omission to mark the two exam questions arose in consequence of Ms Obieta's race or the sex. This was an unintentional oversight of Mr Norman. Accordingly the Court finds no breach of the RDA and the SDA. 20. Cheezels Incident 284 The Court accepts that Mr Norman did not see the incident referred to and that the circumstances, even if proved, could not give rise to a breach of the RDA or SDA. The Court is not satisfied that any such act would constitute a distinction, exclusion, restriction or preference based on race or that such conduct would constitute an unwelcome sexual advance, request or other unwelcome behaviour of a sexual nature in circumstances in which a reasonable person in the circumstances would have anticipated that Ms Obieta would be offended, humiliated or intimidated. complaints AGAINST MS ALEXIE DAVIS 16. Wrong name called in class 285 The Court is unable to accept that Ms Davis made the noises as Ms Obieta has not discharged the requisite burden of proof. Further, even if such incident did take place there is no evidence to suggest that it arose in consequence of Ms Obieta's race or sex. As such there is no breach of the RDA and SDA as claimed. 20. The Cheezels incident 286 The Court accepts that Ms Davis often ate Cheezels in class and to do this placed them on her fingers. She stated, and the Court accepts, that from the position where she sat in class towards the back of the room, she would have to look in the direction of Ms Obieta to see the teacher who stood at the front. The Court accepts that she did not stare at Ms Obieta as claimed, and that there was no racial or sexual innuendo in her conduct as perceived by Ms Obieta which could constitute a breach of the RDA or SDA. 287 The Court is unable to find any conduct of a racial or sexual nature directed at Ms Obieta and rejects the claims. 21. Mimic of a duck or chicken 288 The Court finds that the burden of proof has not been discharged in respect of this allegation. Further, even if such incident was proven, there was nothing to suggest that it arose in consequence of Ms Obieta's race or sex. 22. Verbal behaviour of Ms Davis 289 The Court is not satisfied on the balance of probabilities that Ms Davis made the comment alleged. It further finds that, even if such statement had been made, there was nothing to suggest that it was based upon Ms Obieta's race or sex as claimed. 23. Allegations of tutoring 290 The Court finds that Ms Davis did make the statement as acknowledged by Ms Davis to Mrs Elfert but that such statement was made to Mrs Elfert and not to Ms Obieta. Further, the Court accepts the evidence of Ms Davis that such comment resulted from the exasperation of Ms Davis that so many questions were being asked requiring Mrs Elfert to provide extensive attention to Ms Obieta. The Court accepts the explanation of Ms Davis that she felt that it was inappropriate for one student to receive so much attention when the course was unfinished and the end of the semester was rapidly approaching. 291 The Court finds that the conduct complained of was not racially or sexually motivated as alleged and that no breach of the RDA or the SDA resulted. 24. Apprehension of bullying 292 The Court finds that there was one occasion in a Saturday class when Ms Davis was giggling. This occurred when the students were light-hearted and the Court finds that Ms Davis' giggling was not directed at Ms Obieta. Further, the Court finds that there is no evidence that such conduct arose in consequence of Ms Obieta's race or sex. Complaints against ms ryissa Fogarty 26. Interference with the right to ask questions 293 The Court finds that there was an occasion when Ms Fogarty asked Ms Obieta to consider the rights of the other class members to ask questions and that Ms Obieta responded to such suggestion in a hostile manner. However the Court finds that such request was unrelated to the race or sex of Ms Obieta and as such did not constitute a breach of the RDA or SDA. COMPLAINTS AGAINST 'AUSTRALIAN STUDENTS' 27. Allegations of victimisation by students 294 The Court finds that the allegation that students victimised and denied Ms Obieta access to learning is generalised and is not established on the evidence. Further there is no evidence that any such conduct was racially or sexually motivated and thus does not constitute racial or sexual discrimination, harassment or victimisation. Complaint against Mrs Elfert 28. Misleading information provided by Mrs Elfert 295 The Court rejects the claims of Ms Obieta that Mrs Elfert failed to provide her with vital information and supplied her with the wrong or incorrect information relating to the assessment guidelines, notes, lessons and requirements concerning exams. The Court is satisfied that Mrs Elfert provided all the necessary information for Ms Obieta and other students and that Ms Obieta either failed to comprehend or failed to follow information provided to all students at the commencement of and during the course. 296 The Court also finds that Mrs Elfert told Ms Obieta to check the Study Guide when a question arose concerning the material which could be taken into the exam. The Court also finds Mrs Elfert did not tell Ms Obieta that no materials could be taken into the exam. Further, even if Ms Obieta was not provided with accurate information, there is no evidence to suggest that this was based upon Ms Obieta's race or sex and as such does not constitute a breach of the RDA or SDA. complaints against ms nereda illingworth 29. Failure to comply with agreement to have test independently reviewed and re-marked 297 The Court finds that Ms Illingworth offered to have Ms Obieta's class test and assignments in the modules taught by Mr Norman re-marked by an independent assessor and that Mr Stewart was appointed to re-mark Ms Obieta's class tests and then subsequently her assignment. 298 The Court also finds that there was an agreement made on 7 June 2004 by Ms Illingworth that Mr Norman would apologise to the class, but not specifically to Ms Obieta, for any misunderstanding that may have arisen out of class discussions. Such agreement was made solely in an attempt to placate Ms Obieta, without any acknowledgement by Mr Norman that his conduct in the class discussion was in any way improper. 299 Further, the Court accepts Ms Illingworth's evidence concerning the conduct of Ms Obieta during the meeting on 7 June 2004. The Court also accepts the evidence of Ms Illingworth concerning the conduct of Ms Obieta in a subsequent meeting on 29 July 2004. 300 The Court finds that there is no discrimination against Ms Obieta as claimed resulting from any conduct engaged in by Ms Illingworth and that there is no basis for any claim under the RDA or SDA. None of the conduct complained of by Ms Obieta, even if established, is claimed to have arisen in consequence of her race or sex. complaint against mr stewart 30. Discrimination in provision of services 301 The Court accepts the evidence of Mr Stewart that he explained to Ms Obieta at the meeting on 29 July 2004 the procedure he had used to mark the paper. The Court also accepts that Mr Stewart, in response to Ms Obieta's demand that her grades be increased from a credit to a distinction, explained to her that she did not gain sufficient marks required for such standard. 302 The Court is satisfied that there is no conduct which could constitute a breach of the RDA or the SDA and that no discrimination of any kind was suffered by Ms Obieta. COMPLAINT AGAINST MS ILLINGWORTH 31. Grades of other students 303 The Court finds that at the meeting held on 29 July 2004 Ms Obieta complained that another student received a higher grade than she did. However, the Court finds that there is no evidence of racial or sexual discrimination, harassment or victimisation and there is no breach of the RDA or SDA. 32. Mr Stewart was not an assessor 304 The Court is satisfied that Mr Stewart was qualified as a teacher and assessor as evidenced by the certificate tendered in evidence. He was qualified to undertake the re-mark of Ms Obieta's class tests and assignment. The Court is also satisfied that he was independent of the staff who were engaged in the day-to-day tuition of Ms Obieta and that accordingly his assessment of Ms Obieta's marks was 'independent'. 305 The Court is satisfied there is no racial or sexual discrimination resulting from Mr Stewart's re-mark of Ms Obieta's paper and thus no breach of either the RDA or the SDA. 33. Denial of access to interview records and grades 306 The Court finds that Ms Illingworth was requested by Ms Obieta to provide information obtained in consequence of interviewing 21 students relating to Ms Obieta's complaints. The Court also finds that Ms Obieta requested a copy of her class test. The Court also finds that Ms Illingworth refused to provide both but does not find that Ms Obieta requested her class test pursuant to the Freedom of Information Act. The Court finds that there is no evidence of discrimination in the conduct of Ms Illingworth in refusing to supply such records. 307 There is no basis to suggest that Ms Illingworth's refusal resulted from racial or sexual considerations relating to Ms Obieta and accordingly there was no breach of the RDA or the SDA. 34. Request for the removal of the word 'Deferred' on test results 308 The Court finds that Ms Illingworth included the word 'Deferred' in Ms Obieta's test results because Ms Obieta had requested a review of the mark she had received. The Court also finds that Ms Obieta was told that the deferred result would remain on her record until the issue concerning her marks was resolved. 309 The Court is unable to find any evidence of discrimination in such conduct of Ms Illingworth and further, that there is no basis for any allegation that such conduct was based on race or sex. No breach of the RDA or SDA is established. COMPLAINTS AGAINST MS CONNELLAN 35. Refusal by Ms Connellan to supply transcript of record 310 The Court finds that Ms Connellan attempted to contact Ms Obieta on several occasions by telephone to discuss her request for the supply of her Transcript of Record, but that no return phone call was made by Ms Obieta. 311 The Court finds that since it was not possible to communicate with Ms Obieta, Ms Connellan communicated with VETAB advising that no further action could be taken. 312 In view of these proven facts, the Court is unable to find that there is any racial or sexual discrimination directed towards Ms Obieta in consequence of any conduct of Ms Connellan. complaints against mr hassett 36. Less favourable treatment 313 The Court finds that a request was made by Ms Obieta under the Freedom of Information Act for the supply to her of her academic record. Mr Hassett was not primarily responsible to handle such matters, but he did so during Ms Connellan's leave from 2 August to 27 August 2004. The Court accepts Mr Hassett's evidence that he understood that an application for information under the Freedom of Information Act would need to be addressed to the Freedom of Information Unit of the Department of Education and Training for a response. It was for this reason that he declined Ms Obieta's request for the supply of the Transcript of Record. The Court accepts that Mr Hassett knew nothing of the background of Ms Obieta and did not discriminate against her on the ground of race or sex in declining to forward her Transcript of Record. A distinction, exclusion, restriction or preference based upon Ms Obieta's race is therefore not established and Ms Obieta was not treated less favourably than someone of the opposite sex. As such there no breach of the RDA or SDA. COMPLAINT AGAINST TAFE 37. Failure to act on complaints against Mr Norman 314 Ms Obieta wrote to Mr Hassett on 26 August 2004 advising him of the discrimination against her. Mr Hassett took no action but the Court is satisfied that Mr Hassett, by not responding to her letter, did not discriminate against Ms Obieta on the grounds of race or sex. The Court is also satisfied that the actions of TAFE in relation to Ms Obieta's requests for her class test, results of interviews and enquiries relating to the 'Deferred' result appearing on her Transcript of Record were not racially or sexually discriminatory and do not constitute breaches of RDA or SDA. complaints against vetab 38. Failure to undertake audit of students' records 315 The Court is satisfied that VETAB has no role in the assessment of complaints made against institutions at which education is provided. There is no basis for the alleged racial or sexual discrimination, as the reason that no audit of students' records was conducted as requested was because this was not part of the function of VETAB. As such no breaches of the RDA or SDA are established. 39. Vicarious liability of VETAB 316 The Court is not satisfied that the vicarious liability of VETAB is established pursuant to the SDA and RDA as there is no conduct of VETAB employees which constitutes unlawful discrimination or offensive behaviour either under s 18A or s 18E of the RDA. 40. VETAB not providing remedy to complaints 317 The Court repeats the finding made in 38 above. Further the Court is satisfied that Ms Obieta failed to respond to VETAB's requests that Ms Obieta contact them. COMPLAINT AGAINST MRS ELFERT 41. Complaint to Ms Illingworth concerning Mrs Elfert's failure to provide information relating the to the examination. 318 As this claim is a duplication of that made in paragraph 28 above, the findings of the Court are those referrable to that complaint. There can be no vicarious liability when no primary liability is established, and no racial or sexual discrimination is established. COMPLAINT AGAINST TAFE 42. Failure to obtain diploma 319 The Court finds that no evidence has been provided in support of the allegations that the strict protocols required for the marking of Category A exams were not upheld by TAFE or that Ms Obieta's intention to make a complaint to the Commission was in any way related to the fact that Ms Obieta failed the modules. Accordingly the allegations of discrimination and victimisation on the basis of race or sex have not been made out. COMPLAINT AGAINST THE DEPARTMENT OF EDUCATION AND TRAINING AND VETAB 43. Failure to take appropriate action 320 In respect of Ms Obieta's complaint that VETAB did nothing to resolve her complaints and failed to take appropriate action, the Court finds that VETAB, although a separate statutory entity, comprises part of the Department of Education and that its role was to ensure that educational institutions registered with it had appropriate grievance procedures in place. It was not the role of VETAB to investigate the specific complaints of Ms Obieta. In this respect the role of VETAB is misunderstood by her. 321 The evidence establishes that VETAB did ensure that appropriate procedures were in place and on the material before it was satisfied that those procedures had been implemented by TAFE. 322 No discrimination on the ground of race or sex by VETAB against Ms Obieta is established. complaints against tafe 44. Failure to take appropriate action 323 In respect to Ms Obieta's claim that she was treated less favourably than other students and that TAFE's conduct involved an exclusion, segregation or restriction and preference based on race, the Court is satisfied that there is no evidence to support such allegation. Further, the Court is satisfied that there is no evidence to find that TAFE discriminated against Ms Obieta on sexual grounds. 324 In respect of Ms Obieta's claim that TAFE excluded her because she was not given revisionary exercises and a supplementary exam, the Court is satisfied from the evidence of Ms Illingworth and Mrs Elfert that the procedures were clearly established pursuant to which a student who is unsuccessful in an exam was entitled to sit for a further exam. The evidence shows that Ms Obieta's friend, Ms Chong sat for such exams. The Court is satisfied that Ms Obieta chose to dispute the marks given to her and to pursue her belief that she should have been awarded higher marks, in preference to accepting that her performance did not justify the grades to which she aspired. The evidence of Ms Connellan establishes that her attempts to communicate with Ms Obieta in September 2004 were unsuccessful. Had Ms Obieta elected to return the calls, the Court is satisfied that she would have received additional advice on the avenues available to her to sit for further exams. Ms Obieta chose not to do so. There is no basis for the assertion that TAFE discriminated against Ms Obieta on racial or sexual grounds. 45. Victimisation in relation to exclusion from supplementary exams 325 The Court finds that Ms Obieta was given the opportunity to resit Category A exams; that information in relation to this procedure was provided in the 'Revised Policy on Review of Results'; and that it was the responsibility of students to organise such supplementary exams. 326 The Court is unable to find that TAFE discriminated or victimised against Ms Obieta on the grounds of her race or sex as claimed. 46. No offer to sit supplementary exams 327 Ms Obieta stated her position clearly in her letter to the Commission dated 22 November 2005 that she 'should not and I am not going to suffer the consequence of re-taking the exams'. The Court finds that it was the responsibility of the individual student to request a further examination and the procedure for doing so was explained by Mrs Elfert on several occasions. The Court therefore finds that there is no basis for the allegations of unlawful discrimination or victimisation made by Ms Obieta and there was no breach of the RDA or SDA as claimed. 328 TAFE received the letter from Ms Julie Yates of the Hargreaves Practice. However a reply was forwarded and there was no further follow up to the enquiry. The Court finds no evidence that TAFE falsified the letter as claimed by Ms Obieta. 47. TAFE did not award diploma 329 The Court is satisfied that Ms Obieta was given the opportunity to partake in revision exercises and sit for supplementary exams in relation to her failed Category A exams if she chose to do so. However, Ms Obieta failed to avail herself of this opportunity. There is no evidence to establish the allegations of unlawful discrimination or victimisation due to Ms Obieta's race or sex in relation to the failed modules. 48. TAFE did not award diploma and hindered career opportunities 330 Ms Obieta has not established that the conduct complained of amounted to unlawful discrimination on the basis of Ms Obieta's race or sex and the Court rejects the allegations. Vicarious Liability 331 Ms Obieta complains that the Department of Education, VETAB and TAFE are vicariously liable for the conduct of their staff, namely Mr Norman, Ms Illingworth, Mrs Elfert, Mr Hassett and Ms Connellan. Pursuant to s 18E of the RDA, TAFE, the Department of Education and VETAB can only be held to be liable if an employee or agent in connection with his or her duties as an employee engages in conduct which is unlawful. A provision to the same effect is contained in s 106 of the SDA. Since the Court has found that none of the conduct of the employees whose conduct has been complained of constitutes a breach of either the RDA or the SDA, there is no occasion to give rise to vicarious liability under either statute. CLosing submissions 332 At the conclusion of all of the oral evidence on 26 October 2006, Ms Obieta was asked whether there was anything further in her case which she wished to raise. Ms Obieta told the Court that she did not wish to raise any further matters. 333 The hearing was then adjourned to allow the parties to provide written submissions and the hearing resumed on 11 December 2006 for the purpose of hearing submissions. 334 In her written submissions Ms Obieta claimed that she was humiliated, insulted, intimidated and offended with the treatment she had received during the hearing of the matter in Court; that documents were 'struck off' by the Court during the hearing; and that she received unequal treatment. Since the Court was still possessed of jurisdiction, it was concerned to know of the specific matters of which Ms Obieta claimed in order to remedy any alleged unfairness or irregularities. Accordingly the Court asked Ms Obieta to identify the matters she claimed in support of her submissions. 335 Ms Obieta said two medical reports were 'struck off'. In fact they were rejected because the reports were not verified and the makers were not available for cross examination. 336 Ms Obieta also claimed that her class exercise described as her 'portfolio' had been rejected from tender. The Court transcript records that she never sought to tender it on a prior occasion. In response Ms Obieta claims that the transcript had been edited. The Court granted leave to Ms Obieta to re-open the hearing to tender her portfolio. 337 Ms Obieta also claimed that attendance records had been rejected by the Court. In fact they had already been marked as an exhibit. She then complained that she was not allowed to photocopy documents that had been produced on subpoena. It was explained again to her that such order had been made during the hearing to preserve the confidentiality of other persons. Ms Obieta nevertheless had the opportunity to inspect all of the records produced on subpoena during the hearing. 338 Ms Obieta then claimed that she had been 'blocked to ask questions' and that she was forced to ask questions. The transcript does not record that she was ever forced to ask questions. She could not identify any questions which she was prevented from asking and the transcript does not support her submission. Conclusion 339 Since Ms Obieta's claims have failed, the Court dismisses the application with costs. I certify that the preceding three hundred and thirty-nine (339) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy . Associate: Dated: 7 February 2007 Counsel for the Applicant The Applicant appeared in person. Counsel for the First to Fourth Respondents: Mr P. Ginters Solicitor for the First to Fourth Respondents: Crown Solicitor's Office Solicitor for the Fifth Respondent Clayton Utz Dates of Hearing: 16 – 20 October 2006, 23 – 26 October 2006 and 11 – 12 December 2006 Date of Judgment: 7 February 2007