Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Zhong v State of NSW (Department of Education and Communities) [2014] NSWCATAD 209 Hearing dates: 4 November 2014 Decision date: 01 December 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: N Hennessy LCM, Deputy President Decision: Leave for Ms Zhong's complaint to proceed is refused. Catchwords: ANTI-DISCRIMINATION - complaint of race and disability discrimination by parent of primary school student - complaint declined by President of the Anti-Discrimination Board - whether fair and just for complaint to proceed Legislation Cited: Anti-Discrimination Act 1977 (NSW) Cases Cited: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Category: Principal judgment Parties: Ling Mei Zhong (Applicant) NSW Department of Education and Communities (Respondent) Representation: L Zhong (Applicant in person) McCabe's Lawyers (Respondent) File Number(s): 1410464 reasons for decision Introduction 1Ms Zhong is aggrieved by decisions made by her son's Year 5 teacher in relation to seating arrangements and nominating him to attend ESL classes. Ms Zhong complained that the Department of Education and Communities had discriminated against her son because he is Chinese and wears glasses. The President of the Anti-Discrimination Board declined the complaint as lacking in substance. 2A complaint of discrimination that has been declined by the President of the Anti-Discrimination Board cannot be heard in the Tribunal unless permission is given: Anti-Discrimination Act 1977 (NSW), s 96. The test is whether it is fair and just for the complaint to go ahead: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143. I have decided that the complaints should not go ahead because there is nothing to link the teacher's decisions with the child's race or disability. The alleged treatment 3In 2012 the child commenced at a new school in a Year 5 Opportunity Class. In May 2012 he was diagnosed with myopia and, in September 2012, he began wearing glasses. The treatment about which Ms Zhong complains on behalf of her son relates to the position in the class room in which he was seated and a recommendation that he attend English as a Second Language (ESL) classes. 4Ms Zhong complains that the teacher placed her son at the front of the class away from other children. While Ms Zhong and the Respondent do not agree on the precise location of the desk, I accept that the teacher decided to put him away from other children at the front of the class. The reason the teacher says she made that decision was so that she could monitor him because he was distracting other children and was also easily distracted himself. At Ms Zhong's insistence, the teacher changed the position of her son's desk in Term 3. Ms Zhong says that the seating arrangement adversely affected her son and she had to enrol him in another school. What would Mr Zhong have to prove to substantiate the complaints? 5The relevant provision in relation to race discrimination is s 17(2) of the Anti-Discrimination Act: (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. 6The equivalent provision in relation to disability discrimination is s 49L(2). 7Race discrimination is defined is s 7 and disability discrimination is defined in s 49A, s 49B and s 49C. I understand Mr Zhong to be complaining of direct race discrimination as defined in s 7(1)(a) (1) A person ( "the perpetrator" ) discriminates against another person ( "the aggrieved person" ) on the ground of race if the perpetrator: (a) on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or 8The equivalent provision in relation to disability discrimination is 49B(1)(a). 9In order to substantiate a complaint of race and disability discrimination in education, Ms Zhong would have to prove, on behalf of her son, that: (1)her son is Chinese and has a disability; (2)the Respondent denied him access or limited his access to any benefit or subjected him to a detriment; (3)in the same circumstances or in circumstances which are not materially different, the Respondent did not treat, or would not have treated a person of a different race or who did not have a disability in the same way; and (4)at least one of the reasons for the treatment was the child's race or disability. 10There is no dispute that the child's race is Chinese and that he has a disability as defined by the Anti-Discrimination Act. 11The Respondent disputes that the seating arrangements or the recommendation that he attend ESL classes limited the child's access to any benefit or subjected him to a detriment. In relation to the attendance at ESL classes, there is no evidence that the child actually attended any ESL classes. According to Ms Zhong, it would have been a waste of time for her son to attend because his English language skills were good and there is no need for him to have any extra tuition. That is apparent, she says, from the fact that he was successful in being selected for a position in the Opportunity Class. 12There is some merit in the Respondent's submission that there can have been no detriment to the child if he did not attend the ESL classes. Nevertheless, for the purpose of these proceedings I have assumed that if the matter proceeded to a hearing, Ms Zhong would be able to prove that her son has been subjected to a 'detriment' in relation to both aspects of the complaint. Conclusion in relation to seating arrangements 13The reason the teacher gave for seating the child where she did was that he had a tendency to distract other children and was easily distracted himself. The Respondent suggested that another reason the child was placed at the front of the class was his eyesight. Ms Zhong says that that could not have been the reason because no-one was aware of her son's poor eyesight until he started wearing glasses in September 2012. While Ms Zhong agreed that the reason the teacher put her son at the front of the class was so she could monitor him, she felt aggrieved by that decision because she said it had a bad effect on him. 14The Respondent denied that race was a reason for the seating arrangement. In a letter dated 15 May 2014 the Respondent stated that, "Approximately 98% of the students in the year 5 OC class taught . . . were of Chinese descent." The Respondent now agrees that this is not the case and that a more accurate estimate is that there were 14 students from an Asian background and 9 students from a non-Asian background in the class. That gives a total of 23 students. Ms Zhong says that the class had 30 students altogether. Nevertheless, both parties agreed that slightly more than half the students were from an Asian background. 15There is no evidence, nor any material from which an inference can be drawn, that being Chinese or having myopia was a reason for her son being placed at the front of the class. In addition, there is a plausible reason for that decision. While Ms Zhong is aggrieved by this decision and maintains that it has affected her son adversely, she would have great difficulty satisfying a Tribunal hearing this case that there has been a breach of the Anti-Discrimination Act. In those circumstances it is not fair or just for the complaint to proceed. Conclusion in relation to attendance at ESL classes 16When I asked Ms Zhong at the hearing why she thought her son had been recommended for the ESL class she said she did not know but speculated that it could have been to "cover up" their decision about the seating arrangements. As Ms Zhong does not attribute the decision to her son's race or disability, this part of the complaint is bound to fail and it is not fair or just for it to proceed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 December 2014