A obo V and A -v- Department of School Education [1999] NSWADT 120

CITATION: A obo V and A -v- Department of School Education [1999] NSWADT 120

DIVISION: Equal Opportunity

APPLICANT: A on behalf of V and A

RESPONDENT: Department of School Education

FILE NUMBER: 109 of 1998

HEARING DATES: 10/18/1999; 10/19/1999; 10/20/1999

SUBMISSIONS CLOSED: 10/20/1999

DATE OF DECISION: 12 November 1999

R Bartley - Judicial Member BEFORE: K Edwards - Member M Luger - Member

PRIMARY LEGISLATION: Anti-Discrimination Act 1977

APPLICATION: Race Discrimination - Education -

MATTER FOR DECISION: Principal Matter

Applicant: R Killalea of counsel REPRESENTATION: Respondent: M Lynch of counsel instructed by Crown Solicitor's Office

ORDERS: 1. All of the complaints laid by the Complainant are dismissed. 2. No order as to costs

The complaints 1 On 27 October 1997 Mr A, on behalf of his children A and V (hereinafter called the ('Complainant'), who are Jewish and attend Ermington Public School, complained that the NSW Department of School Education (hereinafter called the 'Respondent') had discriminated against the children on the ground of race. This was because the school conducted various activities at the end of the year, which focused on Christmas. 2 On 2 April 1998, the Complainant made a further complaint of discrimination on the basis of race. The Respondent had discriminated against his children because the school conducted various activities during March and April 1998, which celebrated Easter. 3 On 14 April the Complainant made a further complaint of discrimination on the basis of race on behalf of his daughter V which occurred on a Friday just prior to the Easter long weekend at the school assembly. Mr A said that when the prayer was said at assembly, V generally stood with her hands at her side, whilst the children prayed with their hands together at the front of the chest. He says that V told him that on this occasion V's teacher, Ms Napthali, walked towards V and asked, "Why aren't you praying?" Mr A alleged that V told him that she was so alarmed and scared that she immediately began to pray like the other children. Evidence 4 A, one of the Complainant's children attended school at Ermington from year K in 1992 to year 6 in 1998. Schooling at the Ermington School does not continue past year 6. A now attends at a High School (ie a school other than Ermington School). His other child V now attends Ermington School. V has attended the Ermington School since 1996 . The gravamen of the Complainant's cases was conversations he had with his children concerning what had happened at school. His case was further supplemented with the Complainant's own observations of happenings at the school. 5 The Complainant gave evidence by affidavit and orally. Evidence of the Complainant's conversations with his children was objected to on the basis it was hearsay evidence. The Respondent submitted that as no dates or times were to be mentioned or teachers named (except in one instance) the Respondent had no chance of replying to such evidence. 6 The Respondent also submitted, if the children were not called, there could be no testing of their evidence. Notwithstanding the submissions the evidence was allowed, otherwise the Complainant would not have had a chance to present his case. In addition, the Evidence Act 1995 does not apply to these proceedings. The Tribunal said it would determine the weight of the evidence in due course. 7 Mr A in evidence said in l998, A told him " We have to say the Creed and the Prayer at Assembly every Tuesday." V told him "We have to pray at school every Friday and she further told him " They tell you to put your hands together, bow your head and close you eyes, and then we have to say the words - they told us the words lots of times when we were in Kindy for us to get it right". 8 Further he was told by A "one of the teachers picks two kids and tells them to come to the front and read the Assembly paper, they choose different children every time". He said V and A told him they recited the School Creed and the School prayer in every weekly Assembly (up to about mid 1998). He said "A told him that 'I felt I had to do it- to pray, or I could be in trouble". He said V told him "We have to say all the words they tell you, if I did not pray they would say come and sit next to me and say the words with everyone". There were other conversations with his children that he told the Tribunal. 9 He said he told his children around mid 1998 they did not have to recite the school Creed or Prayer and told them they could stand silently. 10 He gave evidence from the time he told his children they did not have to recite the school Creed or Prayer, around mid 1998, A told him "If the teacher is looking I just pretend I am praying but I make up any words that come to my mind". He further said V told him that "sometimes I put my hands together and cross my fingers, bowed my head, close my eyes and I just go 'bla-bla-bla' - I pretend I am saying the prayer. He also said V also told him "Even if the teachers are not looking I just go 'bla-bla-bla" because they might tell me to sit next to them to say the words". 11 He said at Christmas time each year A and V each year had to practice activities such as Christmas songs and preparing cards, dancing to Christmas tunes, including songs and carols, the re-enactment of the birth of Jesus and recital of stories about Jesus being stories as told to the students by their teachers. 12 In 1998 the name of the Christmas concerts was changed to "end of the Year Concerts". 13 He gave evidence that in the last term of each year, from at least 1992, the School involved students in the preparation of Christmas activities including (i) practising Christmas songs and carols (ii) practicing dancing to Christmas tunes, including songs and carols (iii) practising the re-enactment of the birth of Jesus and (iv) practising recital of stories about Jesus being stories as told to the students by their teachers 14 The Complainant further gave evidence that in the last term each year, from at least 1991, the School involved the students in annual Christmas Parties which included (i) singing Christmas Carols (ii) painting Christmas cards and Santa's and (iii) meeting Santa and receiving lollies from Santa 15 The Complainant gave evidence that when V was in Year 2 in 1998, he only allowed her to participate in the first part of the program of the ' End of Year Party' where as far as he understood, games were played and a clown was present. However at around lunch time, he removed V from School because he did not want her to participate in the second part of the program where, as far as he understood, children were required to sing Christmas carols and receive lollies from Santa. 16 Around April of each year, from at least 1992, the School involved the students in the preparation of Easter activities which included the students' making hats and then parading with those hats in 'Easter Hats' parades; in making Easter eggs and Easter bunnies and the students receiving chocolate Easter eggs from their teachers. 17 He said his children partook in preparation of all of the Easter activities when the children were in Years K, 1 & 2. He and his wife participated in making hats. 18 He said A said "We never celebrated Hanukkah" and V said, "We did not do any Hanukkah stuff in Kindy or in Year 1 or Year 2". 19 In evidence in chief (orally) the Complainant said he wrote a letter in October 1998 to the Principal Mr Weiss saying he did not want V to participate in the preparations of Christmas and asked what dates and times there was going to be practice. Mr Weiss advised him of the dates and times but he did not remove V as it was not practical for him to go to the school to pick her up on the dates and times mentioned. He gave evidence he did not allow V to participate in the concerts and she did not attend school on those days, which were dedicated to the Christmas concert. 20 In cross-examination the Complainant said he did not object to the word 'Christmas', and that it was only in particular contexts that he objected to the use of the word. He said he did not object to the use of the term 'Christmas Day' in the course of general education at the school. He objected to the visual image of Santa Claus as an educational tool, and he objected to a person portraying Santa Claus at the end of the year parties and distributing lollies. 21 When asked "What is it about Santa you object to?" the Complainant said, "It is my understanding of what is Santa Claus, it is a Christian figure. We, as Jewish do not acknowledge Santa Claus. I do not want my children to acknowledge Santa Claus. I do not take my children to meet Santa Claus or to be taken photos with Santa Claus. They do not receive gifts from Santa Claus". 22 He was further asked "You say that if there is a religious class, a special religious class in any one of the Christian religions then it is okay for Santa Claus to be part of that class, Is that the distinction you seek to draw? " He replied "Yes, that is right". He was further asked "Otherwise you seek to prohibit the school from making Santa Claus any part of the education of the children in the primary school, Is that right?" He replied "Yes, that is right". 23 He agreed that in respect of the prayer formerly used at the school, there was nothing to suggest it was Christian, but he wanted it prohibited from use in the school. 24 The Complainant agreed with Mr Lynch there was nothing in the Creed or Prayer used in the school that indicated Christian but in 1997 and throughout 1998, he sought to persuade the school they should cease using the Creed and Prayer and that partly as a result of his protests, their use was discontinued in 1998. 25 He agreed that he did not raise objection to his son's participation in the Christmas nativity scene until 1996 and further agreed that he only informed his children in 1998 for the first time they were not obliged to participate in any of the Christmas activities. He said his objection was to the blanket participation of any children at the school in 'Christian' activities and that more generally, it was an objection, the activities should not take place. 26 In further cross-examination, he agreed he knew he could have taken his children out of the activities in 1997 but did not. 27 In respect to Easter eggs he was asked: