State of Victoria was found vicariously liable for a school principal’s failure to adequately respond to antisemitic bullying by students
Kaplan v State of Victoria (No 8) [2023] FCA 1092
Summary
In Kaplan v State of Victoria (No 8) [2023] FCA 1092 (14 September 2023), the State of Victoria was found vicariously liable for a school principal’s failure to adequately respond to antisemitic bullying by students.
Facts
This case was brought by five Jewish former Brighton Secondary College (BSC) students (Joel Kaplan, Matt Kaplan, Guy Cohen, Zack Snelling, and Liam Arnold-Levy).
Between 2013 and 2020, the applicants were subjected to the following antisemitic behaviour by other BSC students:
physical bullying;
verbal taunts; and
a considerable volume of offensive graffiti, namely hundreds of swastikas drawn in classrooms, books, and across school grounds.
Despite numerous complaints, BSC staff failed to respond adequately to this antisemitic behaviour, in direct contrast to BSC’s less permissive approach to the harassment of other vulnerable minority groups.
The applicants sued under the Racial Discrimination Act 1975 (Cth) (RDA) and in negligence against the principal of BSC, Richard Minack, two teachers, Paul Varney and Demi Flessa, and the State of Victoria.
Decision
This was an incredibly document heavy, fact-intensive case. The nearly 500-page judgment reveals that approximately 70 witnesses testified, and the court book contained over 1,100 documents.
The applicants asserted three causes of action:
(1) section 9 of the RDA, which makes it unlawful for “a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life”;
(2) section 18C of the RDA, which makes it unlawful for “a person to do an act, otherwise than in private, if: (a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and (b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group”; and
(3) negligence, specifically a duty of care owed by Mr Minack as principal to the students.
The applicants succeeded on some of their section 9(1) and negligence claims. Specifically, the Court found:
(1) Mr Minack engaged in unlawful discrimination contrary to section 9(1) of the RDA against Joel, Matt, Guy, and Zack by his failures and omissions to:
(a) take systemic and co-ordinated action to address antisemitic bullying and swastika graffiti at BSC; and
(b) enforce BSC’s policies on racial harassment in relation to this conduct.
(2) Mr Varney engaged in unlawful discrimination contrary to section 9(1) of the RDA against Guy by greeting him in Hebrew which singled him out in front of his class, despite Guy and his mother making it clear that this was unwelcome.
The claims made under the RDA by Joel, Matt, Zack, and Liam were also upheld in negligence.
In reaching its conclusion, the Court found the following four elements of section 9(1) were established:
(1) an act (being Mr Minack’s failure to take action, and Mr Varney’s Hebrew greetings to Guy);
(2) involving a distinction (in illustrating the distinction of the treatment of Jewish students, the applicants used a “comparator” in the form of LGBTQIA+ students. While a comparator is not necessary to establish this element, the Court found it a useful forensic exercise and accepted the applicants’ arguments. Specifically, the applicants established that BSC had adequately responded to bullying of LGBTQIA+ students by implementing a range of school-wide educational campaigns, posters, and visual displays of support – demonstrating that BSC knew how to respond to discriminatory treatment, but chose not to employ such tactics to protect Jewish students);
(3) based on race and/or national origin (her Honour used the formulation “race” in her judgment, but accepted that the “perception of being Jewish may plainly encompass the race or ethnicity of that person or group”, and acknowledged a holistic conception of Jewish identity extending beyond religion to other aspects of life including association, dress, interests, and familial connections. National origin was applicable to Guy as an Israeli citizen); which
(4) impairs a human right (namely, the right to education, right to Jewish identity, and right to security of person and protection).
However, the applicants’ other claims were unsuccessful:
The section 18C claims failed concerning:
the swastika graffiti, as the failure to respond adequately was not itself an act that was objectively likely, in all the circumstances, to offend, insult, humiliate or intimidate the applicants. While the underlying antisemitic student graffiti could have fallen within the terms of section 18C, the applicants’ claim was based on Mr Minack’s failure to act on the graffiti. The Court noted that most section 18C cases involve positive conduct, and that “[t]he circumstances in which an omission could have the effect of offending, or insulting, humiliating or intimidating, are more difficult to conceive”;
the Hebrew greetings by Mr Varney, as this was found to be immature, but not sufficiently serious to be reasonably likely to offend, insult, humiliate or intimidate Guy; and
a speech made by Mr Minack that referenced Nazi views of Jewish people and his father’s service in the German Army, which was reasonably likely to offend, insult, humiliate, or intimidate Jewish students, but was not found to be directed at the applicants’ race.
Regarding negligence, no duty of care was established in relation to the graffiti, and it was not established that Mr Minack or any other staff member knew (or were put on notice) that the graffiti might cause psychiatric injury to the applicants
Several remaining allegations against various teachers failed for lack of evidence.
By virtue of section 18A of the RDA, the State of Victoria was held vicariously liable for the breaches of section 9(1). The State was ordered to pay compensation and damages totalling $435,280.74.
The Court was unable to award Liam compensation because he did not share the same principal as the other applicants, and no RDA claims were proven against that principal. Recognising the apparent unfairness to Liam, the Court took the explicitly “unusual step” of inviting the State of Victoria to consider an ex gratia payment to him, commensurate with the sums awarded to the other applicants.
The State of Victoria was also ordered to make an apology to the applicants, in a form to be negotiated between the parties. A written apology was agreed to and published on 30 October 2023. Further, the parties have agreed that a Deputy Secretary of the Department of Education is to issue an oral apology at the Caulfield Hebrew Congregation by 28 November 2023.
Commentary
This case demonstrates the significance of vicarious liability in discrimination law – the State of Victoria was held liable for Mr Minack, who was in turn liable for his staff. State Departments of Education and school principals have a key responsibility in addressing the bullying that occurs under their watch.
This case also makes an interesting addition to the jurisprudence on section 9(1) of the RDA, by using a LGBTQIA+ “comparator” to establish the element of distinction. Although not essential to establish a section 9 claim, an appropriate comparator can help identify the true basis or reason for certain treatment.
As for section 18C, this case highlights the conceptual difficulty of using an omission to establish an act, as the principal focus of this section is positive conduct. Omissions and failures are more appropriately addressed by section 9.
This case also highlights the significant evidentiary burden necessary to establish discrimination claims.
Case note prepared by Madison Colangelo, Graduate, Norton Rose Fulbright.