Lima -V- Director-General, Department Of School Education & Ethnic Affairs Commission [1998] NSWEOT

Lima -V- Director-General, Department Of School Education & Ethnic Affairs Commission [1998] NSWEOT

The complaints failed because Mrs Lima did not substantiate direct or indirect race discrimination by either respondent. Section 21 did not exclude the claims because the respondents did not prove that the Community Language Program met the particular requirements of that provision. However, the Department's requirement that Mrs Lima be tested for suitability to teach Portuguese to Portuguese or Portuguese-descent children was not shown to be less favourable treatment on the ground of Brazilian nationality, and the evidence did not establish a standard Portuguese comparator or that the testing requirement was unreasonable. The alleged delay in recognising her qualifications was not shown...

Jurisdiction
Australia
Judgment Date
30 April 1998
Procedural Posture
Race Discrimination Complaint Under the Anti Discrimination Act 1977 / Enquiry After Referral by the President of the Anti Discrimination Board Pursuant to Section 94(1) of the Anti Discrimination Act 1977
Outcome
Complaints dismissed.
Legal Topics
['race Discrimination' 'direct Discrimination' 'indirect Discrimination' 'community Language Teacher Recruitment' 'language Fluency Testing' 'special Measures Exception' 'vicarious Liability' 'aiding or Permitting Unlawful Discrimination' 'costs']
['anti Discrimination Law' 'employment Law' 'education Law' 'administrative Law'] ['race Discrimination' 'direct Discrimination' 'indirect Discrimination' 'community Language Teacher Recruitment' 'language Fluency Testing' 'special Measures Exception' 'vicarious Liability' 'aiding or Permitting Unlawful Discrimination' 'costs']

Case Brief

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Procedural Posture

Race Discrimination Complaint Under the Anti Discrimination Act 1977 / Enquiry After Referral by the President of the Anti Discrimination Board Pursuant to Section 94(1) of the Anti Discrimination Act 1977

Legal Issues

  1. 1 ['Whether the Department of School Education directly discriminated against Mrs Lima on the ground of race in requiring and conducting Portuguese fluency testing for a community language teacher position.' 'Whether the Department of School Education indirectly discriminated against Mrs Lima by requiring her to be able to speak, read and write Portuguese as spoken, read and written in Portugal or by children of Portuguese descent.' "Whether delay in recognising Mrs Lima's Brazilian teaching qualifications was attributable to her Brazilian nationality." 'Whether Section 21 of the Anti-Discrimination Act 1977 excluded the claims because the Community Language Program afforded persons of a particular race access to facilities or services to meet special educational, training or welfare needs.' 'Whether the Ethnic Affairs Commission discriminated against Mrs Lima under Sections 19 or 12 of the Anti-Discrimination Act 1977 in providing interpreters to conduct language fluency tests and certifying the results.' 'Whether the Ethnic Affairs Commission was liable under Section 52 of the Anti-Discrimination Act 1977 for aiding or permitting unlawful acts by the Department of School Education.' 'Whether the Department of School Education was vicariously liable under Section 53 of the Anti-Discrimination Act 1977 for acts of the Ethnic Affairs Commission.']

Ratio Decidendi

The complaints failed because Mrs Lima did not substantiate direct or indirect race discrimination by either respondent. Section 21 did not exclude the claims because the respondents did not prove that the Community Language Program met the particular requirements of that provision. However, the Department's requirement that Mrs Lima be tested for suitability to teach Portuguese to Portuguese or Portuguese-descent children was not shown to be less favourable treatment on the ground of Brazilian nationality, and the evidence did not establish a standard Portuguese comparator or that the testing requirement was unreasonable. The alleged delay in recognising her qualifications was not shown...

Court Disposition

Complaints dismissed.

Orders

  • ['The complaints of the Complainant against the First Respondent and against the Second Respondent are dismissed.' 'If any party wishes to make submissions in relation to costs, it must apply to the Registrar within fourteen (14) days of the date of the decision for the setting of a date for the Tribunal to hear...