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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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