New South Wales Supreme Court CITATION : A v Director-General, Department Education and Training [2008] NSWSC 1091 HEARING DATE(S) : 28 April 2008 JUDGMENT DATE : 17 October 2008 JURISDICTION : Administrative Law List JUDGMENT OF : Harrison J DECISION : 1. The decision of the Appeal Panel dated 13 September 2007 is affirmed. 2. The proceedings are otherwise dismissed. CATCHWORDS : ADMINISTRATIVE LAW – appeal from the decision of the Administrative Decisions Tribunal of New South Wales Appeal Panel – questions of law – whether error of law – plaintiffs pupils at a state primary school – complaints that teachers discriminated against plaintiffs and failed to prevent racist remarks by other pupils - allegations of racial discrimination by an educational authority on ground of race contrary to ss 7 and 17 of the Anti-Discrimination Act 1977 – no error of law demonstrated – proceedings dismissed LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 CATEGORY : Principal judgment Amery v State of New South Wales (Director-General NSW Department of Education and Training) [2004] NSWCA 404 Australian Iron and Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165 Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121 Clarke v Catholic Education Office [2003] FCA 1085; (2003) 202 ALR 340 Director General, Department of Education and Training v ZG [2007] NSWADTAP 50 CASES CITED : Gales Holdings Pty Ltd v Minister for Infrastructure and Planning [2006] NSWCA 388 Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287 State of New South Wales v Amery [2006] HCA 14; (2006) 230 CLR 174 Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 ZG v Director General, NSW Department of Education and Training [2006] NSWADT 344 A (First Plaintiff) PARTIES : B by his tutor ZG (Second Plaintiff) C by his tutor ZG (Third Plaintiff) Director-General, Department of Education and Training (Defendant) FILE NUMBER(S) : SC 30113 of 2007 COUNSEL : C L Lenehan (Plaintiffs) N Perram SC with E S Brus (Defendant) SOLICITORS : S O'Connor, Solicitor for the Legal Aid New South Wales (Plaintiffs) I V Knight, Crown Solicitor (Defendant) LOWER COURT JURISDICTION : Administrative Decisions Tribunal Appeal Panel LOWER COURT FILE NUMBER(S) : 069078; 079014 LOWER COURT JUDICIAL OFFICER : N Hennessy LCM (Deputy President); J Conley - Judicial Member; A Lowe - Non Judicial Member LOWER COURT DATE OF DECISION : 13 September 2007 LOWER COURT MEDIUM NEUTRAL CITATION : Director General, Department of Education and Training v ZG [2007] NSWADTAP 50 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HARRISON J 17 October 2008 30113 of 2007 A, B and C v Director-General Department of Education and Training JUDGMENT 1 HIS HONOUR: The plaintiffs are the three sons of ZG. The first plaintiff brings these proceedings on his own behalf; the second and third plaintiffs do so by their tutor ZG. The proceedings are by way of appeal from a decision of the Appeal Panel ("the Appeal Panel") of the Administrative Decisions Tribunal ("the ADT") pursuant to s 119 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"). Background 2 On 29 October 1999 ZG lodged complaints of racial vilification with the President of the Anti-Discrimination Board ("the Board") on behalf of one of his sons and on 15 November 1999 he lodged claims of race discrimination on behalf of them all. The Board referred the matter to the ADT on 1 April 2004 in accordance with the provisions of the Anti-Discrimination Act 1977 ("the ADA"). In the proceedings in the ADT ZG alleged certain breaches of the ADA by the defendant. He alleged that his sons had been discriminated against on the ground of their race in contravention of s 17(2) of the ADA. The complaints related to treatment of ZG's sons whilst enrolled as pupils at a primary school for which the defendant was responsible. The complaints were in two broad categories: 1. Complaints relating to disciplinary action taken by school staff involving the children. 2. Complaints regarding racist remarks made to one of the children by other pupils at the school. 3 The ADT did not uphold the first category of complaint. However, ZG partly succeeded in relation to the second category of complaint: see ZG v Director General, NSW Department of Education and Training [2006] NSWADT 344. Each party appealed to the Appeal Panel which set aside the orders of the ADT and dismissed all of ZG's complaints: see Director General, Department of Education and Training v ZG [2007] NSWADTAP 50. 4 Although the plaintiffs' appeal to this Court was lodged out of time, no point is taken by the defendant about it. The plaintiffs seek an order that the decision of the Appeal Panel be set aside and that the matter be remitted to the Appeal Panel for determination in accordance with law. The relevant grounds upon which the plaintiffs rely are contained in the plaintiffs' amended summons filed on 5 November 2007. The defendant filed a notice of contention on 19 November 2007. It will be necessary to refer to these documents later in these reasons. Statutory provisions 5 Section 7 of the ADA is as follows: " 7 What constitutes discrimination on the ground of race (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of race if, on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, the perpetrator: (a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or (b) segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or (c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have such a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race." 6 Section 17(2) of the ADA is as follows: " 17 Education (1) . . . (2) It is unlawful for an educational authority to discriminate against a student on the ground of race: (a) by denying the student access, or limiting the student's access, to any benefit provided by the educational authority, or (b) by expelling the student or subjecting the student to any other detriment." 7 It was not in dispute that the defendant was an "educational authority": see s 4 of the ADA and par [65] of the ADT's reasons. The term "race" is also defined in s 4 to include "colour, nationality, descent and ethno-religious or national origin". The ADT was satisfied that ZG and his sons were "of the Chinese race": par [65]. 8 An appreciation and understanding of the decisions of the ADT and the Appeal Panel are respectively at the centre of these proceedings and each needs to be examined before the parties' competing contentions can be explored. ZG v Director General, NSW Department of Education and Training [2006] NSWADT 344 9 The ADT's decision was published on 5 December 2006. A summary of the facts is helpfully recorded at pars [2] to [6] of the decision as follows: "[2] ZG, his wife and sons are Australian citizens of Chinese descent. ZG came to Australia from Malaysia about 30 years ago, his wife is from the Peoples' Republic of China, and their four sons were all born in Australia. The family spoke Cantonese at home, though A, B and C were all fluent English language speakers when they started school at [the] Public Primary School . . . At the time of the hearing of the Administrative Decisions Tribunal (the 'Tribunal'), A was 17 years old, B was 15 years old, and C was 13 years old. [3] ZG alleged that from June 1998, when A's teacher blamed A, in front of the class, for causing 'most of the trouble' between himself and another student D, the family did not trust [the school]. ZG said that he started taking notes in the afternoons after school of what the children told him had happened to them during the day at school. A's complaints included that his classmate D swore at him and called him names like 'fuck brain' and 'ching chong chinaman sitting on a dunny can', unfairly he was given detention, asked to pick up papers in the playground, and had a part empty packet of chips confiscated from him for 10 days. B's complaints included unfairly being asked to pick up papers in the playground and Mr Ryan, the headmaster at [the school], terrifying him into admitting guilt to saying 'bum' by interrogating him in a loud angry voice. ZG complained to the school about some of the matters the children told him, and in November 1998, the . . . school principal asked ZG to put his complaints in writing in order that the school be able to fully respond to each complaint. [4] Matters escalated from 11 March 1999 after an incident occurred in A's class involving two classmates, E and F. E's mother was Mrs Y, B's former teacher and also the executive teacher at [the school]. A said that E and F said words to the effect that they did not like Asian and Chinese food and all the Chinese and Asian restaurants should be bombed to make way for more McDonalds and Kentucky Fried Chicken outlets, and they hated 'Chinese and Asians'. A said that after this talk, E came towards him saying, 'I'm going to kill you A' and poked him with his scissors. At the hearing, E said he tripped with the scissors. In any event, A had a red mark on his forehead from E's scissors. On 11 March 1999, when ZG heard A's version of what had happened, he made notes and then took A to the Police, alleging stabbing by E, and followed this by a letter to the school that night alleging 'racial vilification' by F, a 'malicious and vicious attack' with a 'large pair of scissors' by E, and that Mrs Y had 'assaulted' B with a book four times in 1998. ZG also sent a letter dated 8 December 1999 and a questionnaire, to at least one family of a student in A's class asking for information about the scissor incident because 'As we see it, it is just not right that the perpetrator can make up a story to cover up his crime and get away with attempted murder literally and to say it was just an accident...'. [5] After 11 March 1999, the children, including B, told ZG of many more instances that they and he saw as bullying or racist behaviour by [the school] students and unfair treatment by [the school] staff, and as a result of all the matters, ZG wrote to the school on 15, 19 and 29 March 1998, 6, 12, 14, 19, 26 and 31 May 1999, 22 and 30 July 1999, 6 and 24 September 1999, 11, 21 and 29 October 1999, 2, 16 and 19 November 1999, and 8 December 1999. As well, ZG wrote a number of other letters to the Superintendent of the [local school] District (the 'Superintendent') of the Department of Education and Training' (the 'Department'), the Minister for Education and Training (the 'Minister'), and the Ombudsman of NSW. [6] In its defence, the Respondent asserted that [the school] and the Superintendent had fully investigated all of ZG's complaints, it had adequate policies to deal with racism and bullying, and it had appropriately applied its policies, including investigating ZG's complaints, disciplining E and F with detentions, speaking with them about their 'inappropriate' comments, and disciplining Mrs Y in writing for the book incidents. However, it emerged through the Respondent's evidence in the hearing that [the school] staff had limited understanding of what might amount to 'racist' remarks by its students." 10 The ADT found that the defendant was liable for unlawful discrimination on the ground of race contrary to s 17 of the ADA and ordered it to pay damages of $6000 and to apologise. It did so after a careful review of the relevant facts and applicable law. The facts found by the ADT were as appear below. The plaintiff is referred to as ZG and his sons as A, B and C. Other children who do not need to be identified are also referred to by other alphabetic pseudonyms: "[55] From about June 1998, when A told his father that he was reprimanded by Mrs Beattie in front of the class, the family did not trust [the school]. After this, ZG kept notes of what the children told him happened at school and complained to the school at first orally, and from November 1998, at the invitation of Mr Ryan, in writing. Subsequently, he also wrote and/or copied a number of other letters to the Superintendent, the Minister, Police and the Ombudsman. In his letters, he accused the staff of being unfair, and of other more serious conduct such as lying. The teachers became cautious in their dealings with the ZG children and considered that the children sometimes broke the rules knowing that if they were disciplined, ZG would complain. [56] B and C missed some classes because they were required to attend ESL classes. However, the Tribunal finds that the children were enrolled in ESL because in their family, Mandarin was spoken at home, and when ZG complained that he preferred them not to miss usual classes, the school accommodated his concerns. [57] ZG's sons alleged some matters which when raised by ZG with [the school], were either incorrect, such as when B incorrectly told him his teacher had opened his test results, or lacking substance, such as when ZG complained about A and B being given detentions for spraying water and C for saying 'bum'. [58] ZG's sons alleged some matters which, if true, appeared to be of substance including the following: C told him he was bullied by N but N wasn't disciplined, even though the injury note sent home recorded he had been punched; B told him Mrs Y hit him and others with a book in class; the children told him that they heard 'ching chong chinaman' and the like being said at school; and A told him that on 11 March 1999, E and F had said things like they hated all Chinese and Asians and were going to bomb their restaurants to make way for more McDonalds and Kentucky Fried chicken outlets and then E threatened to kill him, and poked him with scissors. [59] In relation to C's allegations about N pushing then punching him and making his nose bleed, the Tribunal is unable to make a finding as to what actually happened, given C's version was based on what he told his father some years ago and Mrs Rowley did not see the incident. [60] In relation to the allegation of Mrs Y hitting B with a book four times in 1998, the Tribunal notes that B said he talked a lot in class, and Mrs Y conceded that she may have tapped him on the head to get his attention when he was talking. The Tribunal also notes that Mrs Y said that B and the other children did not cry when she did this, which is consistent with B's statement to the Police that he didn't say anything when this happened to him, nor did he cry because 'it didn't hurt enough to cry' [Police Interview with B on 10 December 1999, Annexure 60 to ZG's statement dated 27 July 2005]. After considering all the evidence, the Tribunal finds that Mrs Y lightly hit B up to four times, and other children an indeterminate number of times, on the head in class with whatever schoolbook came to hand. However, the Tribunal is not satisfied that B was overtly upset at this, nor that he suffered any significant physical or psychological harm from this, nor that he feared Mrs Y would harm him if he reported this. This is because the Tribunal finds it implausible that if true, ZG would not have told [the school] earlier, given B allegedly told him of being hit/hurt at the end of 1998, from mid-June 1998 ZG daily recorded the occurrences at the school related to him by his sons, and from November 1998, ZG detailed in writing to [the school] even apparently minor concerns. [61] As to the incidents of 11 March 1999, the Tribunal finds as follows: On 11 March 1999, in craft class, E and F said words to the effect that they would kill all the Chinese and Asians, they hated the Chinese and Asians, they would bomb all the Chinese and Asian restaurants and Chinese food tastes like shit. The talk was heard by A who was sitting next the children. The Tribunal also finds that Mr Ryan spoke with E and F to ascertain what was said, and asked the class had they seen or heard anything, but E and F were not given ARCO counselling by him or Mrs Ives, and E's parents did not discuss with him the racist nature of what he had said. Mrs Ives spoke with A and his support friend, S, and Mr Ryan offered counselling for A with the school counsellor who was also a psychologist, but these actions were taken by [the school] to assist if A was upset by the scissor incident rather than as anti-racism steps. [62] Given the inconsistency in the evidence of E and A as to what occurred in relation to the scissor incident, the Tribunal cannot be satisfied as to what E said directly to A or the manner in which his scissors came to make a small red mark on A's head on 11 March 1999. However, the Tribunal finds that the scissors were larger than usual, and not school and/or craft scissors, Mrs Morin did not consider confiscating the scissors, and no other teacher at [the school] checked the scissors or considered confiscating them. Mr Ryan told the Police incorrectly that E was nine years old, not ten, and that the scissors used by E on 11 March 1999 were craft scissors without viewing these scissors. [63] On or about 25 October 1999, E and some other boys spoke outside the library in A's hearing words to the effect that Chinese food tasted like shit, and 'ching chong chinaman'. [64] All of ZG's complaints were investigated by [the school] and in the cases of the allegations of 11 March 1999 and Mrs Y hitting students in 1998, by the Department. The [school] anti-racism policy did not change substantially from 1999 to the time of the hearing. The Department found that the school community (staff, students and parents) at [the school] was not adequately made aware of the anti-racism policy in 1999, and the Department's recommendations as to rectifying this were not carried out by [the school] staff. " 11 The ADT then considered the material and made findings with respect to ZG's claims concerning matters other than the allegedly racist remarks. It is necessary to record at least the following extracts of the decision in that regard: "[68] ZG alleged that because of his sons' race, [the school] staff were unfair in their discipline of his children at [the school], including in confiscating A's chip bag, giving detentions to the ZG children, having A brought to detention, determining conflicts between the ZG children and other pupils at the school, and sometimes speaking with the children in a way the children told their father was frightening or rude. ZG gave evidence that other children were not made to attend detention and other children were not treated the same way as his sons, for example, M was not disciplined for pushing and punching C. However, his examples were based on what he considered should have been the disciplinary approach at [the school] and what his children had told him of events. Also, ZG's view was not always an impartial view, given he considered the school to be wrong if the school disagreed with what his children had told him, some minor matters such as the confiscation of the nearly empty chip packet appeared to have disproportionate significance in his view, and he was unable to accede the school authority to discipline his children without his approval. [69] The Tribunal notes that the role of a teacher is a challenging one. It is different to that of a careful parent: New South Wales v Lepore; Samin v Queensland; Rich v Queensland [2003] HCA 4, per McHugh J, at para 143. Amongst other things, the teacher's responsibilities are to all the children in the class/school. In exercising these responsibilities, a teacher is called upon to implement a growing number of policies which reflect the concerns of the community, the law, and evolving concepts of best practice in teaching. [70] After considering all the evidence, the Tribunal is satisfied that the school staff members were well intentioned, dedicated professionals who genuinely had attempted to behave dispassionately for a long time in the face of ZG's allegations including that the school staff could not be trusted, that on occasion, Mr Spargo and Mr Ryan lied and lost their temper with his children, that the school staff had no authority to give a detention to his children over what he saw as trivial matters, and in Mrs Y's case, that she had criminally assaulted his child and should be dismissed. The Tribunal also is satisfied that in matters of discipline, the [school] teachers were more than usually careful in their discipline of the ZG children, not because of the children's race but rather, because they were aware that ZG would complain if he disagreed. [71] Nevertheless, given the evidence of the [school] teachers who considered that on occasion, ZG's sons would break the rules because if they were punished, their father would complain, and the tension expressed most robustly by Mrs Rowley which ZG's complaints caused at [the school], the Tribunal considers it is possible that on some occasions, the teachers were sometimes impatient and not always fair with ZG's sons, and did not always take their complaints seriously. If this is the case, the Tribunal finds that this was unacceptable and unprofessional. However, after considering all the evidence of the Applicant and Respondent, the Tribunal is satisfied that if any of the alleged unfairness in disciplining of ZG's sons occurred, [the school] staff did not act, even in part, because of the race of the ZG children. Further, the Tribunal is not satisfied that [the school] staff would have acted differently in the same or similar circumstances in the case of a child who was not of Chinese race. [72] As to Mrs Y tapping B on the head four times with a book, while the Tribunal agrees with Ms McKerihan that this is inappropriate, the Tribunal notes that ZG did not mention the issue of race when he first raised the complaint to [the school]. After considering all the evidence, including that Mrs Y hit three other, non-Chinese, students similarly, the Tribunal is not satisfied that Mrs Y tapped B, or tapped him more often, even in part because of his race. Further, the Tribunal is not satisfied that Mrs Y treated the children of non-Chinese race in her class in 1998 differently to [the way that] she treated B. As well, the Tribunal is satisfied that the Department did not differently investigate and take action on the complaint about Mrs Y, even in part, than it would have investigated and actioned the allegation if made in respect of a student of non-Chinese race. [73] ZG claimed that the [school] staff and the Department victimized his sons and aggravated the harm caused by their conduct including by deliberately telling the Police and the Ombudsman that E was only 9 years old, 'deliberately distorted/fabricated the facts of the stabbing as an "accidental action"', saying the scissors were safety craft scissors, and by Mr Ryan giving 'misleading and inaccurate information' to the Police, the Ombudsman and other agencies that it was investigated by him on the day, and also by the Area Superintendent, Assistant Director General and the Case Management Section of the Education Department. [74] The Tribunal finds that it is unacceptable that Mr Ryan and/or other Respondent staff told the Police that E was nine years old, not ten, and that the scissors used by E on 11 March 1999 were craft/safety scissors without viewing these scissors. However, after considering all the evidence, including that ZG was seeking to bring criminal charges of attempted murder against a 10 year old student of the school/son of one of the teachers who had said the incident was an accident, the Tribunal is not satisfied that these statements were made because of A's race or that Mr Ryan or other of the Departmental staff would have said differently in the case of a child who was not of the Chinese in the same or similar circumstances. [75] After considering all the evidence, the Tribunal finds that ZG has not established that his claims, other than those considered below, amount to unlawful discrimination by the Respondent on the ground of race within Section 7 and/or 17 of the ADA." 12 The ADT then reviewed its findings as to ZG's claims that remarks were made by pupils of the school on 11 March 1999, outside the school library on about 25 October 1999, and by children in the school saying 'ching chong Chinaman', in order to determine whether or not these amounted to racist remarks. The conclusions that it reached are as follows: "[78] ZG's allegations are about a primary school where students ranged up to 11 years of age and came from a variety of backgrounds. The Tribunal has considered the reaction of the [school] teachers, including the two ARCO trained teachers at the school, Mr Ryan and Mrs Ives, at the hearing that the comments found to have been made between E and F on 11 March 1999, were 'silly' 'childish' talk, albeit on questioning some (not all) conceded the remarks were inappropriate and could be viewed as racist. Of course, on the one hand, the talk was 'childish' given the speakers were children. However, the children involved were 10 (E) and 11 (F) years old and arguably of sufficient comprehension to be expected to discuss the racist nature of their talk. This is especially so given all the [school] teachers were adamant that racist talk was not tolerated at [the school], and the [school] anti-racism policy and the ARCO were designed to discourage racism in the school. For example, Mrs Y indicated in the hearing that whenever she encountered a student in her class of 7 year olds making racist comments or behaving in a racist manner she did not tolerate it in her classroom, but rather she dealt with the issue immediately, spoke to the child responsible, explained to them why it was unacceptable, reprimanded them, and asked them to apologise. As to the remarks being in private conversations between children, the Tribunal notes that E and F were next to A on 11 March 1999, and one of the boys outside the library on or about 25 October 1999 said words like 'ching chong chinaman', which is a fair indication that the children on these occasions knew A could hear what was said. In any case, the Tribunal considers that though context is important, in public places such as schools, racist talk per se should be a concern, whether or not it strikes its target. As to the conversations being about food, the Tribunal finds that the additions on 11 March 1999 of hating Chinese and Asians and wanting to bomb their restaurants, and in October 2005 of words like 'ching chong chinaman', obviously take the conversation to another level than food. [79] After considering the evidence, the Tribunal finds that the remarks of E and F on 11 March 1999, and the remarks of E and other boys outside the library, constitute racist remarks." 13 The ADT then asked itself whether or not the school or the defendant unlawfully discriminated against ZG's children on ground of race. It came to the following conclusions on that issue at par [99]: "[99] After careful consideration of all the evidence, the Tribunal is not satisfied that these failures amount to unlawful discrimination by the Respondent against the ZG children within Section 7 of the ADA. However, the Tribunal is satisfied that by these failures, the Respondent unlawfully discriminated against ZG's sons on the ground of race by failing to provide ZG's sons with the benefit of a safe learning environment and/or by subjecting them to the detriment of a learning environment where racism was tolerated. After considering all the evidence, the Tribunal finds that the Respondent unlawfully discriminated against the ZG children on the ground of race within Section 17 of the ADA." Director General, Department of Education and Training v ZG [2007] NSWADTAP 50 14 Both parties appealed to the Appeal Panel. The defendant did so by a notice of appeal filed on 20 December 2006. That document identified six grounds of appeal. It was replaced by an amended notice of appeal filed on 28 February 2007. That document identified eight grounds of appeal. The defendant also filed a document dated 28 February 2007 citing 14 reasons why the Appeal Panel should extend the appeal to the merits. It replaced an earlier similar, but shorter, document filed on 20 December 2006. On 22 March 2007 the plaintiffs filed their own (cross) appeal of some 14 pages of close typed material and a two page document seeking to extend the appeal to the merits. On 20 April 2007 ZG filed a document described as the applicant's response to the appeal. That is a somewhat forbidding document of 30 close typed pages absolutely dense with microscopic detail. For example, it is by itself longer than these reasons for judgment. Finally on 7 May 2007 the defendant filed a brief reply. It will be apparent that it is not possible conveniently either to reproduce those documents here or to summarise them in any meaningful way. 15 ZG's initial complaint was that the ADT fell into a legal error when it allegedly did not deal with the whole of his case before it. This is identified in par [6] of the Appeal Panel's decision: "[6] Failure to consider all complaints. ZG submitted that the Tribunal made a legal error by not considering the complaints of aiding and abetting ( AD Act , s 52), racial vilification ( AD Act , s 20C) and victimisation ( AD Act , s 50). He also said that any unlawful race discrimination in breach of s 17(2) was a result of both "direct" and "indirect" discrimination: s 7. He said the Tribunal did not consider his complaint as a complaint of indirect discrimination." 16 The Appeal Panel dealt with this allegation at par [9]: "[9] Tribunal's jurisdiction . The complaint as referred by the President of the Anti-Discrimination Board is the basis for the Tribunal's jurisdiction: AD Act 95(3) and Tribunal Act , s 37. Once referred, complaints cannot be added, unless the Tribunal amends the complaint: AD Act , s 103. ZG did not apply to amend the complaint to add complaints of racial vilification or victimisation. Nor could ZG rely on a breach of s 52 (aiding and abetting) without seeking to join the students or staff who had allegedly caused, instructed or induced the Director General to do an act that is unlawful under the AD Act . Although complaints cannot be added without formal amendment, a complainant may rely on indirect discrimination, for example, as long as the respondent has adequate notice of that fact. ZG was legally represented when the original Points of Claim were filed and did not plead indirect discrimination. Nor did he mention indirect discrimination when making oral submissions to the Tribunal at the hearing. On the basis of these legal principles and factual matters, the Tribunal did not make a legal error by confining itself to considering two complaints of direct race discrimination against the Director General of the Department." 17 At the risk of some repetition it is also pertinent to note that the Appeal Panel recorded the complaints as they had originally been framed when the president of the Board referred them to the ADT. They were in these terms: "[7] First complaint. The President of the Anti-Discrimination Board referred two complaints to the Tribunal. The first was a complaint of race discrimination by ZG on behalf of his son A covering the period from 11 March 1999 to 29 October 1999. That complaint was about an incident on 11 March 1999 where it was alleged that two students, E and F, said when A was sitting next to them, that they did not like Asian and Chinese food and that all Asian and Chinese restaurants should be bombed to make way for more McDonalds and Kentucky Fried Chicken outlets and that they hated Chinese and Asians. E then came towards A saying, "I'm going to kill you" and poked him with a pair of scissors. (Although ZG characterised the complaint as one of "racial vilification" in his complaint to the President of the Anti-Discrimination Board, when referring the complaint, the President said that he treated the complaint as one of race discrimination in the area of education.) The complaint also included allegations about how the school responded to this incident. [8] Second complaint . The second complaint referred by the President was a complaint of race discrimination by ZG on behalf of A, B and C, against the Director General of the Department covering the period from 15 May 1999 to 15 November 1999. That complaint alleged that the school directly discriminated against the three boys or allowed other students to discriminate against them." 18 In addition, both parties sought leave to have the Appeal Panel deal with the matter on its merits. That was something requiring a grant of leave. The Appeal Panel concluded as follows: "[10] Both parties applied for leave for the appeal to be extended to the merits of the Tribunal's decision. There is no need for the Tribunal to find an error of law before granting leave for an appeal to extend to the merits of the Tribunal's decision: Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456; (2005) 65 NSWLR 245. These proceedings were heard over five days. The complaint relates to events that occurred eight years ago. A great deal of evidence was given. The Tribunal gave a detailed account of the evidence at [26] to [45]. The Tribunal carefully evaluated that evidence and made primary findings of fact as to what had occurred at [46] to [63]. Those primary findings were supported by the evidence and included reasons as to why certain evidence was rejected and other evidence was accepted. We are not persuaded that there is any justification for re-visiting these primary factual findings. [11] The Tribunal went on to apply its understanding of the law to the primary facts as found. While the Tribunal misunderstood the law, it made all the legal findings that it needed to make in order to resolve the complaint. In those circumstances there is no justification for extending the appeal to the merits of the Tribunal's factual findings." 19 Next, both parties appealed on the ground that the ADT had acted in a procedurally unfair manner. The Appeal Panel dealt with this complaint as follows: "[12] Both parties also appealed on the ground that the Tribunal had acted in a procedurally unfair manner. The Department's submission was that the Tribunal did not give the Department an opportunity to make any submissions in relation to material that the Tribunal relied on in [76] and [77] of the decision. That material referred to definitions of "racism". In addition, the Department submitted that the Tribunal considered policies (at [88]-[90] of the decision) that were not part of the evidence and were not current at the time of the complaints. We accept that the Tribunal did not indicate to the parties that it would be relying on its own inquiries as to the definition of 'racism' and the policies of the Department. It is a clear breach of procedural fairness for the Tribunal to rely on material that was not brought to the attention of the parties. However, as the Appeal Panel's ultimate decision is that all the complaints be dismissed, there is no utility in remitting the matter to the Tribunal to decide in accordance with the principles of procedural fairness. [13] Some of ZG's grounds of appeal relating to procedural fairness were not in fact alleging a breach of procedural fairness. For example, ZG said that the Tribunal breached procedural fairness by failing to consider the "relevant and reliable evidences in full and instead placed more weight on irrelevant and/or incorrect evidence and considerations." ZG did not allege that the Tribunal made findings of fact based on no evidence. ZG also alleged that the Tribunal denied him procedural fairness by failing to provide him with an opportunity to present evidence in relation to the costs of transferring his children from [the] Public School to another school including moving house, travelling costs and medical reports. ZG had every opportunity to present whatever evidence he wished of the damages he or his children suffered. ZG could not point to any part of the transcript where the Tribunal refused to allow him to present his evidence. In fact, he presented evidence about his need to re-locate on 9 May 2006 (see p 151-154 of transcript). [14] In relation to ZG's objections to the Tribunal's decisions to set aside four summonses, these were interlocutory decisions and ZG failed to appeal against them at the time. (See transcript of 8 May 2006 at p34, pt 39.) ZG objected to the Tribunal relying on the written evidence of one student when he was not permitted to summons [sic] her to give evidence. The Tribunal's decision to rely on that evidence is not an error of law in circumstances where the Department did not dispute the evidence and that evidence supported ZG's allegations. Finally, ZG said that the Tribunal did not tell him that he needed to provide evidence of certain things, for example medical evidence of the effect that the school's conduct had on him and his wife. As ZG had brought the complaints on behalf of his children, rather than in his own right, he was not entitled to any damages for a breach of the AD Act regardless of the evidence he may have presented. None of the remainder of ZG's grounds of appeal raised a question of law." 20 The Appeal Panel then proceeded to deal with the defendant's appeal before it on questions of law. It mapped its path for this task in par [15] in the following way: "[15] Summary of Appeal Panel's approach and conclusions . On the basis of the Department's appeal, we have found that the Tribunal did not ask itself the right questions in the process of reaching its decision. Rather than remitting the decision to the Tribunal to re-determine the case based on correct legal principle, we have applied the correct legal principles to the relevant facts as found by the Tribunal. The remainder of this decision: (a) identifies the relevant findings of fact made by the Tribunal; (b) identifies the correct legal principles to be applied in relation to those findings; (c) identifies the errors of law made by the Tribunal; and (d) applies the correct law to the facts as found by the Tribunal." 21 The Appeal Panel then dealt with the plaintiffs' complaints relating to disciplinary measures and other conduct by employees of the school. At pars [26] and [27] the Appeal Panel set out its conclusions as follows: "[26] Appeal Panel's conclusions . The Tribunal regarded s 7 and s 17 as alternatives and found that neither provision had been breached. That was an error of law. Nevertheless, the Tribunal made the relevant finding it needed to make in order to resolve the complaint. It implicitly answered 'yes' to the first question. It also considered separately the question of whether that detriment was "on the ground of race" as defined in s 7. The Tribunal found that there was no differential treatment and that there was no connection between the way staff disciplined the children or reported matters to outside authorities and their race. That was a finding that was open to it on the evidence. Having come to that view, there was no need for the Tribunal to consider the third question, that is whether the Director General was vicariously liable for any act of discrimination. Although the Tribunal misunderstood the legislative provisions, it made the relevant findings that needed to be made. When those findings are correctly applied, the same conclusion is reached, that is, the allegations do not constitute a breach of s 17(2). [27] The Tribunal made no order in relation to these allegations. It should have ordered that the complaints relating to the conduct of employees of the respondent towards A, B and C be dismissed." 22 The Appeal Panel then dealt with the plaintiffs' complaints relating to the comments made by other students. It came to the following views commencing at par [29] about what the ADT should have done when it dealt with these complaints: "[29] Relevant questions . The questions the Tribunal should have asked itself in relation to its primary findings of fact were: 1. Do these findings amount to denying A access, or limiting his access, to any benefit provided by the educational authority, or to subjecting A to a detriment in terms of s 17(2)? 2. If so, was that treatment differential treatment and was there the necessary causal connection between the treatment and the race of the children as defined by s 7? 3. If so, is the Director General vicariously liable for the acts of his employees? [30] Tribunal's findings. Instead of asking itself the three questions set out above, the Tribunal again assumed that s 17(2) and s 7 were stand-alone provisions, both of which made certain conduct unlawful. In fact, s 7 is merely a definition of what constitutes discrimination on the ground of race for the purposes of s 17(2). The Tribunal's error is apparent from the following passage at [99]: 'After careful consideration of all the evidence, the Tribunal is not satisfied that these failures amount to unlawful discrimination by the Respondent against the ZG children within Section 7 of the ADA. However, the Tribunal is satisfied that by these failures, the Respondent unlawfully discriminated against ZG's sons on the ground of race by failing to provide ZG's sons with the benefit of a safe learning environment and/or by subjecting them to the detriment of a learning environment where racism was tolerated. After considering all the evidence, the Tribunal finds that the Respondent unlawfully discriminated against the ZG children on the ground of race within Section 17 of the ADA.' [31] Despite this error, the Tribunal did ask itself the first two questions it needed to ask. When the Tribunal's answers to those questions are applied to the relevant legislative provisions, the outcome is that the complaint must be dismissed. We explain below why that is the case. [32] Identification of benefit or detriment . The Tribunal defined the benefit as a "safe learning environment" and the detriment as "a learning environment where racism was tolerated". In Director General, Department of Education & Training v FP and FQ on behalf of FR (EOD) [2003] NSWADTAP 51 (6 November 2003) the Appeal Panel decided, at [37] that a "benefit" should be defined in terms of its content. The respondent submitted that a "safe learning environment" was not a "benefit" within s 17(2), nor is a "learning environment in which racism is tolerated" a detriment. [33] In O'Callaghan v Loder [1983] 3 NSWLR 89, Mathews DCJ found that sexual harassment in the workplace, which the employer knew or ought to have known about, could be regarded as a "detriment". After discussing cases of sexual harassment including O'Callaghan v Loder , the Appeal Panel concluded in FP and FQ at [50] that: 'Similarly, racial harassment of a student by fellow students at a school, which the teachers knew about or ought to have known about and took inadequate steps to eradicate, may constitute unlawful discrimination on the ground of race. Being in a school environment poisoned by racial harassment may constitute a "detriment" for the purposes of s 17(2)(b) of the AD Act. It may also constitute denial or limitation of a "benefit" associated with education if the benefit is cast as being the opportunity to enjoy the educational and social functions of a school free from harassment, whether racially based or otherwise.' [34] The Tribunal did not err in defining the "detriment" as being in a learning environment where racism is tolerated. Another way of characterising the detriment would have been "being in a school environment poisoned by racial harassment." The respondent challenged the Tribunal's finding at [99] on the basis that two incidents at the school, which occurred seven months apart, could not amount to an environment where racism is tolerated. Although there is some force to this submission, this was a finding of fact which it was open on the evidence for the Tribunal to make. The Tribunal went on to find, at [98], that staff at the school had failed to respond adequately to the two incidents: 'The Tribunal finds that despite the policies, ARCOs, (Anti-Racism Policy Officers) investigations and recommendations, the teachers at [the school], including the ARCO-trained Mr Ryan and Mrs Ives, failed to recognise as racist, and/or to discourage as racist, the remarks made by the children at school on 11 March 1999 and in the library incident, and made by a child or children saying 'ching chong chinaman'. Further, the Tribunal is satisfied that [the school] did not comply with its anti-racism policy in respect of the said remarks and subsequently, did not implement the Department's recommendations. Further, the Department failed to ensure that the ARCOs Mr Ryan and Mrs Ives were fulfilling their role and to monitor that its recommendations were acted upon.' [35] The respondent challenged these findings on the basis that non-compliance with a policy or failure to implement Departmental recommendations, does not amount to a detriment. Again, this is a finding of fact that it was open for the Tribunal to make. The Tribunal's finding, set out above, is a finding that A was subjected to a detriment by staff at the school by failing to adequately respond to the two incidents. However, it was not a finding that that detriment was "on the ground of race" as defined by s 7. [36] Differential treatment and causation. Having found a detriment, the Tribunal needed to decide whether the detriment occurred because of discrimination by staff at the school on the ground of A's race. In other words, the fact that A is of Chinese background needed to be a factor which influenced the staff in their failure to respond adequately to the incidents. The Tribunal concluded at [99] that: 'After careful consideration of all the evidence, the Tribunal is not satisfied that these failures amount to unlawful discrimination by the Respondent against the ZG children within Section 7 of the ADA. However, the Tribunal is satisfied that by these failures, the Respondent unlawfully discriminated against ZG's sons on the ground of race by failing to provide ZG's sons with the benefit of a safe learning environment and/or by subjecting them to the detriment of a learning environment where racism was tolerated. After considering all the evidence, the Tribunal finds that the Respondent unlawfully discriminated against the ZG children on the ground of race within Section 17 of the ADA'." 23 At par [37] of its decision the Appeal Panel set out its final conclusions on this issue as follows: "[37] The fact that the Tribunal was satisfied that the failures amounted to a detriment was insufficient to determine the matter. The Tribunal should have taken the next step and concluded that since the failures were not "on the ground of" A's race as defined by s 7, there was no breach of s 17(2). It was not sufficient to find that the comments themselves were racist, because the students are not liable for discrimination under the AD Act . A finding of discrimination on the ground of race is one of significantly different magnitude from one of an inadequate response to racial harassment carried out by students. Applying the Tribunal's findings to the provisions of the AD Act , the Tribunal should also have dismissed this part of the complaint as it found that it did not constitute direct race discrimination as defined by s 7 of the AD Act ." 24 The Appeal Panel therefore proceeded to set aside the orders of the ADT and to substitute orders dismissing the plaintiffs' complaints of racial discrimination. It is from that determination dated 13 September 2007 that the plaintiffs appeal to this Court. Grounds of Appeal 25 The plaintiffs ultimately relied only upon grounds 1 to 7 and 10 to 15 inclusive of their amended summons filed 5 November 2007. Grounds 8 and 9 were expressly abandoned. Grounds 1 to 5 inclusive were essentially a narrative of facts and in truth not grounds of appeal at all. Ground 6 was not so much a ground of appeal as a complaint about the result. It is associated with ground 7, which is infelicitously framed, but is essentially a complaint about par [99] of the ADT's decision and the way in which the Appeal Panel dealt with it. The plaintiffs' grounds left remaining, therefore, are as follows: "1. In ZG v Director General, NSW Department of Education and Training [2006] NSWADT 344, the Administrative Decisions Tribunal (the "Tribunal") upheld, in part, a complaint of unlawful discrimination made by the applicant, finding that the respondent had contravened section 17 of the Anti-Discrimination Act 1997 (NSW) ("AD Act"). 2. In Director General, Department of Education and Training v ZG on behalf of A, B and C; ZG on behalf of A, B and C v Director General, Department of Education and Training (EOD) [2007] NSWADTAP 50 (the "Appeal Decision"), the Appeal Panel of the Tribunal (the "Appeal Panel") found that the Tribunal had erred at first instance in that it erroneously regarded sections 7 and 17 of the AD Act as alternatives (at [30] of the Appeal Decision). 3. The Appeal Panel identified the three questions it said the Tribunal at first instance should have asked in the following terms (at [29] of the Appeal Decision): 1. Do [the Tribunal's primary findings of fact] amount to denying A access, or limiting his access, to any benefit provided by the educational authority, or to subjecting A to a detriment in terms of s 17(2)? (the "First Question") If so, was that treatment differential treatment and was there the necessary causal connection between the treatment and the race of the children as defined by s 7? (the "Second Question") If so, is the Director General vicariously liable for the acts of his employees? (the "Third Question") 4. Notwithstanding the error referred to in paragraph 2 above, the Appeal Panel held that the Tribunal had asked itself the questions in the First Question and the Second Question. 5. The Appeal Panel held that the Tribunal answered the First Question in the affirmative (see at paragraph [35] of the Appeal Decision). 6. The Appeal Panel erred in holding that the Tribunal at first instance answered the Second Question in the negative in the following passage (reproduced in the Appeal Decision at [36]: 'After careful consideration of all the evidence, the Tribunal is not satisfied that these failures amount to unlawful discrimination by the Respondent against the ZG children within Section 7 of the ADA. However, the Tribunal is satisfied that by these failures, the Respondent unlawfully discriminated against ZG's sons on the ground of race by failing to provide ZG's sons with the benefit of a safe learning environment and/or by subjecting them to the detriment of a learning environment where racism was tolerated. After considering all the evidence, the Tribunal finds that the Respondent unlawfully discriminated against the ZG children on the ground of race within Section 17 of the ADA.' 7. The Appeal Panel should have found that the Tribunal at first instance either: (a) answered the question or questions identified in the Second Question in the affirmative; or else (b) failed to consider the question or questions identified in the Second Question at all. 10. Further or alternatively, the applicant in his points of claim sought to rely upon claims of "indirect discrimination" (paras 21-23 of the applicant's points of claim dated 27 July 2005). 11. The Tribunal at first instance did not determine those claims. 12. The Appeals (sic) Panel proceeded on the erroneous assumption that applicant had not sought to rely upon "indirect discrimination", including in his points of claim (see paragraphs [9] and [19] of the Appeal Decision). 13. The power of the Appeals (sic) Panel to make an order dismissing the applicant's complaints in substitution for the orders made by the Tribunal at first instance was not enlivened in those circumstances. 14. In the premises, the dismissal of the applicant's complaints by the Appeals (sic) Panel involved error. 15. Further or alternatively, the failure by the Appeal Panel to address a central question in the applicant's case (as articulated in the applicant's points of claim) involved error in that the Appeal Panel: (a) failed to discharge its duties of functions under the Administrative Decisions Tribunal Act 1997 (NSW); and/or (b) failed to address the correct legal question which the law prescribes and thereby constructively failed to exercise its jurisdiction." 26 It is also apparent from the way these remaining grounds of appeal are structured that there are in fact only three grounds of appeal – that is to say, ground 7, grounds 10 to 14 inclusive, and ground 15. 27 By its notice of contention filed on 19 November 2007 and amended on 28 April 2008, the defendant gave notice that the decision of the Appeal Panel should be affirmed on grounds other than those relied on by the Appeal Panel. The grounds relied upon in support of that contention were as follows: "1. The Appeal Panel's dismissal of the complaint of indirect discrimination ought to be upheld on the alternative basis that there was no, or no adequate, evidence to support any finding of indirect discrimination. 2. The Appeal Panel's dismissal of the complaint of indirect discrimination ought to be upheld on the alternative basis that the factual findings made by the Administration Decision Tribunal could not support a finding of indirect discrimination. 3. The Appeal Panel's refusal to consider the complaint of indirect discrimination ought to be upheld on the basis that the Plaintiff did not appeal from the Tribunal's treatment of the indirect discrimination claim. 4. The Appeal Panel's refusal to consider the complaint of indirect discrimination ought to be upheld on the basis that the Plaintiff advised the Appeal Panel both orally and in writing that he was satisfied that the complaint of indirect discrimination had been dealt with [by] the Tribunal at first instance in his favour." Plaintiffs' submissions 28 As the Appeal Panel made clear, it did not and would not determine the matter by conducting its own review on the merits. No complaint is made by either party about that decision. 29 The Appeal Panel found that the ADT had correctly confined itself to complaints of direct discrimination. In that regard, the Appeal Panel observed that ZG did not plead indirect discrimination in his points of claim or address the ADT on such a claim. The plaintiffs contend that that constituted error on the part of the Appeal Panel. This is discussed in more detail later in these reasons. The plaintiffs emphasise for presently relevant purposes, however, that the Appeal Panel viewed the findings of the ADT as being limited to direct discrimination. 30 In relation to what it understood to be the complaints of direct race discrimination arising from the remarks made by other students at the school, the Appeal Panel said that the ADT should have asked itself the questions which it posed at par [29] of its decision: see par [22] above. The Appeal Panel found that the ADT instead adopted an erroneous approach that seemed to misunderstand the relationship between s 7 and s 17 of the ADA: see par [30] of the Appeal Panel's decision also set out at par [22] above. Nevertheless, the Appeal Panel said at par [31] of its decision that the ADT had made the necessary findings to determine the first two questions that it identified. 31 In relation to the first question the Appeal Panel said that the ADT had not erred in characterising the relevant detriment for the purposes of s 17(2) as being subjecting ZG's son to a learning environment where racism was tolerated: see pars [32] – [35] of the Appeal Panel's decision. The defendant has not sought to disturb that conclusion in these proceedings. However, the Appeal Panel said that the ADT should have answered the second question "no" because it had found that the necessary causal connection between the treatment and the children's race did not exist: see pars [36] – [38] of the Appeal Panel's decision. In the plaintiffs' submission, that reasoning involved error. 32 The plaintiffs argued that it will be apparent from the words "The Tribunal should have taken the next step and concluded that since the failures were not on the ground of "A's race as defined by s 7, there was no breach of s17 (2)" in par [37] of the Appeal Panel's decision, that it drew from the ADT's cursory reference to s 7 that a finding that the requisite causal connection between any differential treatment and the race of ZG's son was absent. However, the ADT expressly found "that the [defendant] unlawfully discriminated against the ZG children on the ground of race within Section 17 of the ADA": see par [99] of the ADT's decision at par [13] above. 33 As the plaintiffs point out, that finding sits uncomfortably with the ADT's finding that there had been no "unlawful discrimination by the Respondent against the ZG children within Section 7": see also par [99]. The Appeal Panel concluded that that may reflect a misunderstanding on the part of the ADT as to the relationship between s 7 of the ADA and the proscriptions of unlawful discrimination that appear in Part 2, Divisions 2 and 3 (including s 17). However, the plaintiffs submit that the ADT did not make a finding that there was no requisite causal connection between the treatment accorded to ZG's children and their race. The ADT had, in terms, made a finding that there had been discrimination on the ground of race. 34 The plaintiffs submitted that in those circumstances there were a number of choices open to the Appeal Panel: 1. It could have granted leave to extend the appeal to the merits and made its own findings on the causation issue instead of declining to proceed in that way. 2. It could have affirmed the decision of the ADT. 3. It could have remitted the matter to the ADT if it were of the view that the ADT's treatment of s 7 and s 17(2) indicated or suggested that the ADT had asked itself the wrong question on the issue of causation. 35 Instead, the Appeal Panel elevated the ADT's discussion of s 7 to a finding on the causation issue that was inconsistent with the ADT's express finding that there had been discrimination on the ground of race. The plaintiffs submitted that that reasoning amounted to the error encapsulated in grounds 1 to 7 of the amended grounds of appeal. 36 The plaintiffs then dealt with the grounds that I shall refer to as the alleged failure of the Appeal Panel to deal with ZG's indirect discrimination point: see grounds 10 – 15. This point has as its genesis the matters referred to by the Appeal Panel in pars [6] and [9] of its decision: see pars [15] and [16] above. The plaintiffs contend that indirect discrimination was pleaded at pars 21 to 23 of ZG's points of claim and that he specifically addressed that claim and the evidence that he said supported it in pars 211 to 232 of his written submissions to the ADT. There were no oral submissions. 37 The plaintiffs emphasised that there are significant differences between the matters that must be made out by an applicant making a direct discrimination claim and those that must be made out for the purposes of an indirect discrimination claim. An applicant bringing a claim of indirect discrimination under the ADA must show: (a) that the respondent required him or her to comply with "a requirement or condition"; (b) that a substantially higher proportion of persons who are of a different race comply or are able to comply with that requirement or condition; (c) that the applicant does not or is not able to comply with that requirement or condition; and (d) that the requirement or condition was not reasonable having regard to the circumstances of the case. See generally State of New South Wales v Amery [2006] HCA 14; (2006) 230 CLR 174 at [2] per Gleeson CJ and at [50] per Gummow, Hayne and Crennan JJ; Amery v State of New South Wales (Director-General NSW Department of Education and Training) [2004] NSWCA 404 at [10] per Beazley JA. 38 An applicant must show in addition that such discrimination engaged one of the proscriptions in Part 2, Divisions 2 and 3. Notably, an applicant is not required to show that he or she was subjected to differential treatment on the ground of his or her race. In his points of claim ZG had characterised the relevant requirement or condition for the purposes of his indirect discrimination claim as a requirement or condition of his sons' attendance at the school that they undertake their schooling in a school where racism was tolerated. 39 The plaintiffs submitted that such a characterisation is supported by analogous decisions, and that it is well established that the words "requirement or condition" should be construed broadly so as to cover "any form of qualification or prerequisite". See in these respects Clarke v Catholic Education Office [2003] FCA 1085; (2003) 202 ALR 340 at [42] – [45] and Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121 at [98] – [109]; Australian Iron and Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165 at 168; Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 393. 40 ZG also alleged further that that was a requirement or condition with which his sons were unable to comply, that a substantially higher proportion of persons who are of a different race comply or are able to comply with it, that the requirement or condition was not reasonable in the circumstances and that in requiring his sons to comply with it the defendant subjected them to discrimination on the ground of their race by subjecting them to a detriment and thereby contravened s 17(2)(b) of the ADA. The ADT did not consider those aspects of ZG's claims. 41 In these circumstances the plaintiffs submitted that it followed that the ADT had not discharged its function of determining whether all of ZG's various complaints should be dismissed or had been substantiated: s 108 of the ADA. Furthermore, the appropriate course for the Appeal Panel in those circumstances was to remit the matter to the ADT for further hearing (or extend the appeal to the merits under s 113(2) of the ADT Act). Instead, as already noted, the Appeal Panel made orders dismissing ZG's complaints of discrimination in substitution for the orders made by the ADT. 42 The Appeal Panel had the power to make various orders, including an order in substitution for an order made by the ADT: s 114. However, those powers are conditioned upon the Appeal Panel forming the opinion that such an order is "appropriate". The plaintiffs submitted that the Appeal Panel could not have been satisfied in the circumstances that the substitution of orders dismissing ZG's complaints of race discrimination was "appropriate" for the purposes of s 114. 43 Alternatively the plaintiff submitted that the Appeal Panel was required by the ADT Act to "determine the appeal": s 114(2). The exercise of that function demanded that the Appeal Panel consider ZG's claims to the extent that they were relevant for the purposes of the appeal. In other words, the ADT Act made the relevance of those matters mandatory. A failure to consider those matters, so the plaintiffs argued, necessarily involved a failure by the Appeal Panel to complete the jurisdictional task required of it: s 114(1): see Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at [42] and Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287 at [90]. 44 The plaintiffs' submission was that the Appeal Panel did not consider the real questions that it was duty bound to consider and that in the circumstances that amounted to a constructive failure to exercise its jurisdiction: Sellamuthu (supra) at [21] and Gales Holdings Pty Ltd v Minister for Infrastructure and Planning [2006] NSWCA 388 at [174]. According to the plaintiffs, the Appeal Panel therefore erred in the ways adumbrated in grounds 10 to 15 inclusive. The defendant's submission 45 The defendant drew attention to that part of the ADT's decision that dealt with ZG's contention that by permitting one of his sons to be subjected to racial abuse the school had discriminated against the sons on the basis of race. The Appeal Panel's reversal of that conclusion is the subject of the plaintiffs' grounds 1 to 7 of appeal. The defendant's submissions review pars [76] to [79] and the discussion and conclusions of the ADT between pars [80] and [99] under the heading "Did [the school] and/or the Department unlawfully discriminate against the ZG children on the grounds of race?" 46 The significant findings made by the ADT themselves led to three findings of fact, all of which, according to the defendant, appear in par [98] of the ADT decision. That paragraph is as follows: "[98] If the legislation, anti-racism policies of [the school] and the Department, and ARCO training were to be more than mere rhetoric, [the school] and the Department needed to create at [the school] an environment in which, so far as possible, 'childish' talk which was racist was discouraged. After considering all the evidence, the Tribunal finds that despite the policies, ARCOs, investigations and recommendations, the teachers at [the school], including the ARCO-trained Mr Ryan and Mrs Ives, failed to recognise as racist, and/or to discourage as racist, the remarks made by the children at school on 11 March 1999 and in the library incident, and made by a child or children saying 'ching chong chinaman'. Further, the Tribunal is satisfied that [the school] did not comply with its anti-racism policy in respect of the said remarks and subsequently, did not implement the Department's recommendations. Further, the Department failed to ensure that the ARCOs Mr Ryan and Mrs Ives were fulfilling their role and to monitor that its recommendations were acted upon." (Emphasis added). 47 These findings are respectively to be found in the second, third and fourth sentences of that paragraph. The defendant submitted that, accordingly, the ADT had found as facts that the school and the Department had committed three failures, emphasised in the preceding quote. Armed with those factual findings, the ADT then moved to their proper legal characterisation at par [99]. The paragraph uses the word "failures" and the defendant contends that that was necessarily a reference to the three emphasised failures identified in par [98]. 48 The ADT characterised these failures as not being a breach of s 7 but as a breach of s 17. This was legally impossible: satisfaction of the definition in s 7 is the sine qua non for a breach of s 17. The ADT's finding, if left undisturbed, inevitably meant that there could have been no breach of s 17. The plaintiffs have argued that the ADT's finding that there had been a breach of s 17 therefore showed that its finding that there had been a breach of s 7 was suspect. The only safe course, according to this argument, is to start over again. 49 The defendant contends that this argument has no merit unless par [99] itself contained findings of fact. However, par [99] contains no findings of fact. It is concerned rather with the legal characterisation of the three failures identified at par [98]. The defendant submits that the plaintiffs' argument that par [99] contains a finding of fact about racial discrimination should be rejected. Moreover, it should be rejected as well because if it were a finding of fact it had no basis in any of the other facts found by the ADT at pars [95] to [98]. Those findings of fact contain nothing that supports an argument that there was a breach of s 7. 50 The defendant submitted accordingly that grounds 1 to 7 ought to be dismissed. 51 With respect to the balance of the plaintiffs' grounds the defendant submitted that the plaintiffs ought not to be permitted to run this argument. During the oral hearing before the Appeal Panel it was apparent that the plaintiffs were of the view that the indirect discrimination case had been dealt with at par [99]: see T10.44 – 11.12. It is also clear from ZG's written submissions to the Appeal Panel that he considered that the ADT had dealt with the claim of indirect discrimination. Indeed, his contention was that the Appeal Panel had not adequately or correctly dealt with the claim of direct discrimination. The defendant concedes, as the plaintiffs submit, that the Appeal Panel erroneously came to the view that indirect discrimination had not been raised before the ADT. However, if the plaintiffs' case before the Appeal Panel was that par [99] was a positive finding on their indirect discrimination case, there was no occasion to make such a finding. In effect the plaintiffs have waived an entitlement to raise such an argument by claiming that the indirect discrimination point was determined in their favour by the ADT. It is therefore inconsistent now to argue that the ADT did not deal with point. 52 Alternatively, even if the plaintiffs were permitted to raise the argument, the defendant contends that it should not succeed. As the defendant has argued in its notice of contention, the only outcome legally open to the Appeal Panel, had it considered the question of indirect discrimination, would have been to hold that the argument was wrong and to have dismissed the plaintiffs' appeal. This is for three reasons. 53 First, whatever else a "requirement or condition" within s 7(1)(c) comprehends, it must be something for which the notion of compliance makes sense. The proposed requirement or condition cannot be a requirement with which persons of the Chinese race were required to comply. It might be different if the relevant requirement or condition was that they undertake their schooling in a school where racism against Chinese was tolerated. Were that so the case might more closely resemble Catholic Education Office v Clarke (supra). The defendant submits that it is doubtful that the Full Court would have reached the same conclusion in that case if the condition or requirement had been that the deaf pupil had been required to undertake his education in an environment where discrimination against deaf people was tolerated. 54 Secondly, unlike Clarke, where the imposition of the condition could not have been plainer, the plaintiffs here do not explain how or why the requirement or condition was imposed. The plaintiffs' case was explained at pars 211 to 232 of ZG's written submissions to the ADT. Nowhere in those submissions is there any explanation of how the "requirement or condition" was imposed or what might have been said to constitute it. The points of claim do not assist. 55 Thirdly, the defendant argues that there is a logical difficulty with racism being identified as the disability or benefit for the purposes of s 17. That section makes discrimination on the basis of race unlawful. It requires the imposition of a detriment or the denial of a benefit. That detriment or denial of a benefit cannot itself be discrimination on the basis of race. If it were otherwise the provision would be fatally circular. The need for a requirement or condition must necessarily be linked to the plaintiffs rather than described in the general terms of the legislation itself. 56 The defendant submitted further that for the plaintiffs' contention to have succeeded in the ADT, or as restated in these proceedings, it is necessary to accept that the meaning of the word "tolerated" is no more than the simple fact of the occurrence of racist conduct. The Macquarie Dictionary defines "tolerated" as "(1) to allow to be, be practised, or to be done without prohibition or hindrance; permit, (2) to bear without repugnance; put up with". The factual findings of the ADT at par [98] did not and cannot sustain a finding that the school was a school where racism was tolerated, as that word is properly understood. 57 Furthermore, even if the defendant were wrong about the meaning of the word "tolerate", the real issue is as identified by the High Court of Australia in Amery (supra) at par [65]: "[65] However, it is not the mere existence of a requirement or condition to which Pt 3 Div 1 of the AD Act is directed. It is discrimination which may involve the imposition of a requirement or condition. The question that must be asked in applying ss 24(1)(b) and 25 is whether the perpetrator engaged in a proscribed form of discrimination, not "what was the requirement or condition in this case". 58 The ADT did not and could not identify any proscribed form of discrimination by the defendant against the plaintiffs. That is to say, at no time was anything done, or required of, or omitted to be done because of the plaintiffs' race. As such, a claim of discrimination, whether it be direct within the meaning of s 7(1)(a) and/or indirect within the meaning of s 7(1)(c) simply could not succeed. 59 The defendant submitted that in all of these circumstances the proceedings should be dismissed. Consideration 60 The right to appeal to the Appeal Panel is provided for in s 115 of the ADA. It is as follows: " 115 Appeals to Appeal Panel against decisions of Tribunal An order or other decision made by the Tribunal pursuant to this Act (other than a decision under section 96) may be appealed to an Appeal Panel of the Tribunal under Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997 by a party to the proceedings in which the order or decision is made." 61 The nature of the appeal to an Appeal Panel from the ADT is set out in s 113 of the ADT Act as follows: " 113 Right to appeal against appealable decisions of the Tribunal (1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel. (2) An appeal under this Part: (a) may be made on any question of law, and (b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision." 62 As has already been mentioned, there is no challenge in this Court to the Appeal Panel's refusal to grant leave pursuant to s 113(2)(b). On appeals limited to a question or questions of law, the powers of the Appeal Panel are as provided in s 114 of the ADT Act as follows: " 114 Appeals on questions of law (1) If an appeal under this Part is restricted to questions of law, the Appeal Panel is to determine the appeal and may make such orders as it thinks appropriate in light of its decision. (2) The orders that may be made by the Appeal Panel on any such appeal include, but are not limited to, any of the following: (a) an order affirming or setting aside the decision of the Tribunal (as originally constituted), (b) an order remitting the case to be heard and decided again by the Tribunal (as originally or similarly constituted), either with or without the hearing of further evidence, in accordance with the directions of the Appeal Panel, (c) an order made in substitution for an order made by the Tribunal." 63 It will be apparent that the orders made by the Appeal Panel in this case were made in accordance with s 114(2)(c) of the ADT Act. 64 The appeal to this Court is brought pursuant to s 119(1) of the ADT Act which is as follows: " 119 Right of appeal to Supreme Court (1) A party to proceedings before an Appeal Panel of the Tribunal may appeal to the Supreme Court, on a question of law, against any decision of the Appeal Panel in those proceedings." 65 The orders that can be made following such an appeal to this Court are provided for in s 120 of the ADT Act as follows: " 120 Orders on appeal to the Supreme Court (1) The Supreme Court is to hear and determine the appeal and may make such orders as it thinks appropriate in light of its decision. (2) The orders that may be made by the Supreme Court on appeal include (but are not limited to): (a) an order affirming or setting aside the decision of the Appeal Panel, and (b) an order remitting the case to be heard and decided again by the Appeal Panel (either with or without the hearing of further evidence) in accordance with the directions of the Supreme Court." 66 The nature of the plaintiffs' challenge to the ADT's decision had been that the findings of fact that it made were not open to it. The burden of the Appeal Panel's approach was that the findings of fact that the ADT made were open to it on the material before it. However, the challenge in this Court is to the manner in which the Appeal Panel disposed of the proceedings before it. 67 On the issue of the plaintiffs' complaints relating to the disciplinary measures and other conduct by the teachers, this amounted to a challenge to the Appeal Panel's conclusions in par [26] of its decision. The Appeal Panel identified the error of law that the ADT made in dealing with s 7 and s 17. The Appeal Panel found however that the ADT nevertheless made the relevant finding that it needed to make to resolve the complaint. It answered 'yes' to the first question and 'no' to the second question, each identified in par [22] of the Appeal Panel decision. As the Appeal Panel said, although the ADT misunderstood the legislative provisions, it made the relevant findings that needed to be made. When those findings are correctly applied as a matter of law the allegations do not constitute a breach of s 17(2). The Appeal Panel accepted that the ADT erred in the reasoning exposed in par [99] of its decision. However, the Appeal Panel considered that despite the error, the ADT did ask itself the two questions it was required to answer and that when those questions were applied to the relevant legislative provisions, the result was that the appeal should be dismissed. 68 In my opinion the defendant's contention, that the plaintiffs' argument has no merit unless par [99] itself contained findings of fact, is correct. Paragraph [99] contains no findings of fact but is concerned rather with the legal characterisation of the three failures identified at par [98]. The plaintiffs' argument that par [99] contains a finding of fact about racial discrimination should be rejected. In the circumstances the Appeal Panel's conclusion, and consequent order, that these complaints should have been dismissed was in my opinion clearly open to it. 69 On the issue of the plaintiffs' complaints relating to comments by other students, this amounted to a challenge to the Appeal Panel's conclusions in par [37] of its decision. The Appeal Panel concluded that even though the ADT was satisfied that the failures that it found amounted to a detriment, it should also have taken the next step and concluded that since the failures were not "on the ground of" A's race as defined by s 7, there was no breach of s 17(2). The Appeal Panel proceeded to apply the ADT's findings to the provisions of the ADA and concluded that the ADT should have also dismissed this part of the plaintiffs' complaint on the basis that it did not constitute race discrimination as defined by s 7. The Appeal Panel proceeded therefore to dismiss that complaint. In my opinion that decision was also clearly open to it. The defendant's contentions, that I have summarised at pars [53] to [58] above, are in my opinion correct. 70 I would not have been satisfied that the plaintiffs were otherwise out of court on this issue by reason of their having waived it because of the way in which their case before the Appeal Panel was conducted. Each party relies upon the transcript at pages 10 and 11 before the Appeal Panel in support of their respective arguments set forth above. The presiding member quite clearly elicited ZG's agreement with the proposition that the ADT forgot to mention the issue of indirect discrimination and advised him that it would have to be one of his appeal grounds. Paragraph [6] of the Appeal Panel's decision also refers to the fact that ZG said that the ADT "did not consider his complaint as a complaint of indirect discrimination". The defendant took no point on this in the proceedings before the Appeal Panel and cannot do so now. 71 These proceedings have a relatively long history. At the time of the events that first gave rise to them, ZG's sons were aged approximately 9, 7 and 5 years of age respectively. They are now correspondingly aged approximately 19, 17 and 15 years of age. The fundamental proposition advanced by ZG was that racial discrimination was at the heart, or was the underlying root cause, of certain behaviour towards his sons from school staff and from pupils about which he was concerned to complain. (I have chosen to describe ZG's complaints for present purposes in language that does not reflect all of the actual terms or expressions contained in ss 7 or 17 of the ADA). 72 It was not possible for the ADT or the Appeal Panel to do otherwise than to deal, or to attempt to deal, with the proceedings before them strictly in accordance with the law. I have found that at least the Appeal Panel did so and that the plaintiffs' appeal to this Court should fail. The limitations upon the plaintiffs' ability to succeed in this Court are set out in the sections that I have extracted. Appeals to this Court in the events that occurred are restricted to questions of law. My decision is therefore one that concludes that the Appeal Panel did not make an error of law. I reject the plaintiffs' contention that the Appeal Panel could not have been satisfied in the circumstances that the substitution of orders dismissing ZG's complaints of race discrimination was "appropriate" for the purposes of s 114. 73 The respective arguments of the parties before me were detailed and sophisticated. They were reliant upon an underpinning wealth of written material on which the decisions of the ADT and the Appeal Panel were based, which it is not possible in full to refer to or to record. That material includes, but is not limited to, the documents annexed to the affidavit of Lillian Chan affirmed on 1 February 2008 filed on behalf of the plaintiffs and the documents annexed to the affidavit of Gretchen Shirm affirmed on 17 March 2008 filed on behalf of the defendant. The plaintiffs' points of claim and the extraordinarily detailed written submissions prepared by ZG and relied upon by him in the ADT and before the Appeal Panel are also among these documents, as well as the transcript of the proceedings before the Appeal Panel. I have read and considered all of that material. It is very instructive and necessarily constitutes essential background to a complete understanding and appreciation of the issues in this Court. 74 In her opening submissions to the Appeal Panel, counsel for the defendant said that the matter was not complicated but that the ADT seemed to have indicated that it was. I observe that, although it is strictly beside the point, I agree with those remarks. The not inconsiderable and quite remarkable energy and passion that drove the commencement and continuation of the original proceedings from inception were arguably always disproportionate to the prospects of success. The plaintiffs appear never to have had the benefit of legal advice or representation before their appearance in this Court, with the minor exception of the matters referred to in par 5 of ZG's affidavit affirmed on 19 October 2007. That is somewhat unfortunate in the events that have occurred. In my opinion the decision of the ADT contained clear errors of law with which the Appeal Panel dealt appropriately in accordance with s 114. 75 It is regrettable that the proceedings did not come to an end following the ADT decision. The decision in that tribunal would appear to have given the plaintiffs' arguments alleging discrimination upon the basis of race a momentum that was never warranted, whatever may otherwise have been the merits of the plaintiffs' complaints about what occurred generally at the school regardless of race. The wealth of material to which I have referred contains nothing, apart from assertions by the plaintiffs, which supports any relevant connection between the matters that the plaintiffs complain of and discrimination by the defendant upon the ground of race. Conclusions 76 In my opinion the following orders should be made: 1. The decision of the Appeal Panel dated 13 September 2007 is affirmed. 2. The proceedings are otherwise dismissed. 77 I will hear the parties on the question of costs. ************* DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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