23 March 2012

Racial Discrimination


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Summary of Racial Discrimination and an example of a case (Laalaa v Director General, Department of Education and Training (EOD) [2009] NSWADTAP 56)which dealt specifically with direct and indirect discrimination.

The Act makes it unlawful to racially vilify another person, whereby a person is discriminated on the grounds of their race publicly, causing insult and/or humiliation.

The unlawfulness of racial discrimination can occur within employment, access to premises, access to accommodation and within the education sector, whether at a school, university, TAFE or college.

There will be some overlap in these areas.  For example, discrimination on the grounds of race could occur when a person seeks employment at a school, or may be denied access to certain premises or facilities within a school on the basis of their race.

Racial discrimination can be direct or indirect and section 7 of the Anti-Discrimination Act 1977 (“ADA”) outlines what constitutes discrimination on the grounds of race.  The ADA makes it unlawful to discriminate against someone by treating them less favourably than another person in the same or similar circumstances; (Direct Discrimination).  The ADA also makes it unlawful to require someone to comply with a requirement or condition that others who are not of the same race could comply with, and that requirement is not a reasonable one in the circumstances; (Indirect Discrimination).

A case which was before the Administrative Decisions Tribunal at first instance and then on appeal (internally within the Tribunal) which dealt with these issues, in particular, an allegation that a requirement was unreasonable in the circumstances and constituted direct and indirect discrimination, is the case of Laalaa v Director General, Department of Education and Training (EOD) [2009] NSWADTAP 56.

The facts of that matter were as follows:

  • Mr Laalaa completed an undergraduate degree in his home country, Lebanon.
  • In 2006, he accepted a one year scholarship provided by the Department of Education and Training to complete a Graduate Diploma of Education at the Australian Catholic University and during this year he participated in practical training at East Hills Boys Technology High School to train as a teacher of mathematics, engineering and industrial technology.
  • Mr Laalaa then attended an interview in September 2006 to assess his suitability to be a teacher and was recommended for employment. The Department required him to complete the Professional English Assessment for Teachers (PEAT).
  • He complained about that requirement and was offered the opportunity to be assessed to determine whether he should be exempt from the PEAT. He was ultimately assessed as exempt.
  • Following a series of abusive emails to Departmental officers and a further independent assessment of his suitability to be a teacher, the Department declined to offer him employment.

Mr Laalaa alleged that the Department directly and indirectly discriminated against him on the grounds of his race and victimised him in breach of the ADA. Mr Laalaa relied on section 7 of  the ADA, alleging, among other things, that the requirement to undergo the PEAT was unreasonable.

The Tribunal found that:

  • The department was entitled to require him to undergo the PEAT assessment and that this was neither indirect nor direct discrimination under section 7 of the ADA.
  • The PEAT requirement was not based on race but was based on whether a candidate for the position had obtained his tertiary qualifications.
  • The Department’s decision for Mr Laalaa to be exempt from that requirement was not based on his race but rather, his complaints and subsequent abusive emails to the Department and following a further assessment of his suitability for the role, the Department made a decision not to offer him a role at the School.
  • In any event, the department’s requirement for him to undergo the PEAT assessment to determine the level of his tertiary qualifications in order to assess his suitability for the role was not unreasonable in the circumstances.

The Tribunal dismissed Mr Laalaa’s complaint at hearing and also on appeal.

The case is a reminder that an educational authority may decline employment to a prospective employee if its internal requirements are not met and that the mere fact that the applicant is of a particular race does not mean that the application has been refused on the grounds of the applicant’s race.

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