FEDERAL COURT OF AUSTRALIA

Kaplan v State of Victoria (No 8) [2023] FCA 1092

ORDERS

THE COURT DECLARES THAT:

Racial Discrimination Act 1975 (Cth)

A.    In relation to the first, second, third and fourth applicants, between July 2015 and May 2020, the second respondent engaged in unlawful discrimination contrary to s 9(1) of the Racial Discrimination Act 1975 (Cth), by his failures and omissions to:

(a)    take action at a systemic and coordinated level to address a high level of antisemitic bullying and harassment of Jewish students by other students at Brighton Secondary College and high levels of swastika graffiti at the school; and

(b)    enforce the policies of Brighton Secondary College on racial harassment in relation to antisemitic bullying and harassment of Jewish students by other students at Brighton Secondary College and in relation to the display of swastika graffiti at the school.

B.    In relation to the third applicant, during 2018 in a year 8 English class at Brighton Secondary College, the third respondent engaged in unlawful discrimination contrary to s 9(1) of the Racial Discrimination Act, by his use of purported greetings in Hebrew to the third applicant in circumstances where that conduct singled the third applicant out to the class as being Jewish and of Israeli national origin, and the third applicant and his mother had made it clear the conduct was unwelcome and unwanted.

C.    Pursuant to s 18A of the Racial Discrimination Act, the Racial Discrimination Act applies in relation to the first respondent as if the first respondent had engaged in the conduct of the second respondent referred to in paragraph A above, and the conduct of the third respondent referred to in paragraph B, so that the first respondent is taken to have contravened s 9(1) of the Racial Discrimination Act in the manner there set out.

THE COURT ORDERS THAT:

1.    Paragraphs [367], [368], [369(b)] and [369(c)] (to the extent it relates to [369(b)]) of the statement of claim dated 22 July 2021 be struck out.

2.    Paragraph [373] of the statement of claim dated 22 July 2021 be struck out.

3.    Paragraphs [116]-[122] of the statement of claim dated 22 July 2021 be struck out.

Removal of litigation representatives

4.    Subject to any further or other order, Janet Abadee be removed as litigation representative of Matt Kaplan.

5.    Subject to any further or other order, Sarit Cohen be removed as litigation representative of Guy Cohen.

6.    Subject to any further or other order, Natalie Snelling be removed as litigation representative of Zack Snelling.

Disposition of the originating application

7.    The originating application dated 16 July 2021 be allowed in part.

Compensation

8.    Pursuant to s 46PO(4)(d) of the Australian Human Rights Commission Act 1986 (Cth) the first respondent pay compensation to Joel Kaplan in the total sum of $63,780.

9.    Pursuant to s 46PO(4)(d) of the AHRC Act the first respondent pay compensation to Matt Kaplan in the total sum of $60,000.

10.    Pursuant to s 46PO(4)(d) of the AHRC Act the first respondent pay compensation to Guy Cohen in the total sum of $55,000.

11.    Pursuant to s 46PO(4)(d) of the AHRC Act the first respondent pay compensation to Zack Snelling in the total sum of $244,968.31.

Damages

12.    The first respondent pay to Liam Arnold-Levy:

(a)    the sum of $10,000 by way of damages for non-economic loss pursuant to the exception in s 28LC(2)(a) of the Wrongs Act 1958 (Vic); and

(b)    the sum of $1,532.43 by way of damages for economic loss.

Apology

13.    On or before 4.00 pm on 6 October 2023, the first respondent serve on the applicants a proposed form of apology by the first respondent to each of the applicants, in a form that is compatible with the Court’s reasons for judgment in this proceeding.

14.    The applicants and the first respondent are to attempt to negotiate, in good faith, an agreed form of apology or apologies by the first respondent to each of the applicants, in a form that is compatible with the Court’s reasons for judgment in this proceeding, including agreement about when and in what form the apologies will be given.

15.    In the absence of the Court being notified on or before 4.00 pm on 13 October 2023 that the parties have agreed on a form of apology to each applicant, the proceeding will be listed for case management, at a date to be fixed in consultation with the parties, for the Court to consider whether it should prescribe a form of apology, or relieve the first respondent of any obligation to deliver an apology to one or more of the applicants.

16.    The parties may request the assistance of a Judicial Registrar of the Court in their negotiations pursuant to order 14 of these orders.

Costs

17.    The first respondent pay the applicants’ costs, capped in accordance with the Court’s orders dated 27 October 2021 in the sum of $130,000.

Further orders or variations

18.    On or before 4.00 pm on 6 October 2023, the parties each file any proposed further orders, or variations to orders already made in the proceeding, including any proposed orders in relation to interest, accompanied, if necessary, by supporting submissions of no more than 5 pages.

19.    As far as possible the parties are to agree on the form of any further orders, or variations to orders already made in the proceeding, including any proposed orders in relation to interest.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER CJ:

INTRODUCTION AND SUMMARY

1    Five applicants, Joel Kaplan, Matt Kaplan, Guy Cohen, Zack Snelling and Liam Arnold-Levy, have brought this proceeding against the State of Victoria, the principal of Brighton Secondary College, Mr Richard Minack, and two BSC teachers, Mr Paul Varney and Ms Demi Flessa. The applicants rely on three causes of action: contraventions of s 9(1) of the Racial Discrimination Act 1975 (Cth), contraventions of s 18C of the RDA, and negligence.

2    The factual basis for all three causes of action is broadly the same, although there are also a number of specific allegations against Mr Varney, Ms Flessa and a number of other BSC teachers. The applicants’ allegations span the period of 2013 to 2020, depending on when they attended BSC. Each applicant left BSC prematurely, and the Court has accepted that four out of five of them left because of the antisemitism from other students they experienced at BSC and how unsafe and unprotected by Mr Minack and the BSC staff they felt. The fourth-named applicant, Guy, left to move overseas.

3    In summary terms, the applicants allege that during their respective times at BSC, they were subjected to antisemitic bullying and harassment by groups of BSC students, and some individual BSC students, and that they complained about the bullying and harassment. The applicants allege that other Jewish students at BSC experienced some of the same treatment. The applicants also allege that Mr Minack contravened the racial vilification provisions of the RDA (s 18C) in respect of at least one (and allegedly more than one) speech he gave to a full school assembly at BSC, where the applicants allege he made remarks that offended, insulted, humiliated or intimidated Jewish students at the assembly and were offensive more generally to Jewish people.

4    The applicants allege that, unlike other vulnerable minority student groups, no or no adequate steps were taken by Mr Minack, and through him the rest of the teaching and other staff at BSC, to address how these other students were treating the applicants, or to protect Jewish students. They also allege that, unlike other vulnerable minority student groups, Jewish students (including the applicants) had to endure unreasonably and extraordinarily high levels of graffiti that was highly offensive and hurtful to them, and which made them fearful for their safety at school. This graffiti consisted largely of swastika graffiti, and they allege it was present in the classrooms and around the grounds of BSC, as well as through students drawing swastikas on school books and on themselves, and making swastika shapes. They allege there were no proactive and systemic measures taken by Mr Minack, and through him the rest of the teaching and other staff at BSC, to discourage this kind of graffiti, to educate students about its particular impacts on Jewish students and to facilitate behaviour change at BSC in the way behaviour change was facilitated for other vulnerable minority groups.

5    The applicants also made a series of specific factual allegations against Mr Varney and Ms Flessa about remarks they made during various classes concerning Israel and Palestine and concerning Israelis and Palestinians, and about comments in Hebrew Mr Varney is alleged to have said to Guy.

6    The respondents contested liability on all three causes of action.

7    The Court has determined that the applicants’ allegations should be upheld in part. The Court has generally accepted the narrative from the applicants, their family members and the 17 former and current BSC student witnesses who gave evidence about the unusually high levels of swastika graffiti, and the frequent complaints they made about swastikas and the antisemitic bullying and harassment. The Court has accepted the applicants’ case that there were failures by Mr Minack to address in any systemic and proactive way the antisemitic bullying and harassment, using recognised and established approaches available in Australian secondary schools and indeed used at BSC for other vulnerable minorities.

8    The main allegations which the Court has upheld relate to Mr Minack’s contravention of s 9 of the RDA by failing to take appropriate and reasonable steps to discourage and modify the antisemitic student bullying and harassment behaviour, and to discourage swastika graffiti, including by imposing appropriate disciplinary consequences but also by more systemic approaches such as school-wide campaigns. The Court has found that at a leadership and systemic level, Mr Minack took a different, and less favourable, approach to antisemitic bullying and harassment of Jewish students than he took, or would have taken, to the bullying and harassment of other vulnerable minority student groups at BSC. Through his own conduct as principal, this differential approach was also adopted by BSC staff, and there was – for example – an inexplicable and unusual tolerance for antisemitic graffiti and a preparedness to ignore, downplay and take less seriously the complaints made by Jewish students and their families. There was also a disinclination to adopt any systemic, school-wide steps to address antisemitic student behaviour, despite this having been done, appropriately, to protect LGBTQIA+ students and to encourage tolerance and acceptance of students who identified in that way or who were exploring their identity.

9    This conduct involved a distinction in the way the applicants were treated by Mr Minack and, through his failures in leadership, the teachers and staff at BSC, which in turn impaired the applicants’ human rights to security of person and protection, to education, and to preservation of their Jewish identity.

10    Insofar as these allegations under the RDA were also made in negligence, the Court has upheld the negligence claims made by Liam, Joel, Matt and Zack. No negligence claim was pressed on behalf of Guy.

11    The Court has upheld one specific claim under s 9 of the RDA by Guy against Mr Varney, relating to singling Guy out and greeting him in Hebrew when Guy and his mother had made it clear this conduct was unwelcome.

12    The Court has otherwise rejected the specific claims made against Mr Varney, and has rejected all the specific claims made against Ms Flessa. It has also rejected all of the claims made by the applicants about specific incidents where they allege inadequate or partisan disciplinary consequences were imposed for various interactions between one or more of the applicants and other BSC students that were said to involve antisemitic harassment and bullying. The Court has found the applicants have not proven that these specific disciplinary decisions about those specific interactions were made other than on a case-by-case basis within the scope of existing policies of BSC for dealing with student on student interactions and the applicants have not proven there was any racially discriminatory element to those specific disciplinary decisions.

13    The applicants claimed a variety of relief. The State generally accepted it would be vicariously liable for the alleged conduct if proven. Therefore, in relation to the allegations the Court has found proven, damages and compensation orders are made against the State. The Court has ordered the State pay, in total:

(a)    the sum of $63,780 to Joel;

(b)    the sum of $60,000 to Matt;

(c)    the sum of $55,000 to Guy;

(d)    the sum of $244,968.31 to Zack; and

(e)    the sum of $11,532.43 to Liam.

14    Interest may be payable on some of those amounts. Some of the damages in negligence claimed by the applicants were not available because of the provisions of the Wrongs Act 1958 (Vic), and the limits imposed on recovery of damages for physical and psychiatric injury in negligence. Through the operation of s 79 of the Judiciary Act 1903 (Cth), those limits apply to the applicants’ negligence claims.

15    Further, Liam’s claims under the RDA, although of the same nature as those made by Joel, Matt, Guy and Zack, related to a time before Mr Minack was principal of BSC. The Court has found the applicants did not allege and prove any claims under the RDA against the then principal of the school, Ms Podbury, in the same way they alleged and proved their claims against Mr Minack. Therefore, Liam’s claims under the RDA cannot succeed in the same way that the claims of the other four applicants have succeeded. The Court recognises the perceived unfairness in this outcome, and has invited the State to consider making an ex gratia payment to Liam, commensurate with what the Court has found was the damage he suffered, and commensurate with the compensation awarded to the other applicants.

16    The Court has also granted declaratory relief relating to contraventions of the RDA, whereby the Court describes the contraventions of the RDA it has found proven.

17    The Court has agreed with the applicants that there should be an apology, or apologies, but has agreed with the respondents that the proper respondent to give that apology, or apologies, is the State. In its orders, the Court has prescribed some steps to be taken between the parties to negotiate a form of apology that is compatible with the Court’s reasons. If the parties cannot agree on a form of apology, or apologies, one possible outcome is that the Court will not order any apology to be given.

18    The Court has not agreed with any of the other relief sought by the applicants.

19    What follows are the detailed reasons for the conclusions I have expressed above.

THE EVIDENCE AND SUBMISSIONS

20    The trial was conducted by way of oral evidence, save for expert reports.

21    In addition to the five applicants themselves, the applicants called 30 lay witnesses. These witnesses were:

(a)    family members of the applicants:

(i)    Rochelle Arnold-Levy, mother of Liam;

(ii)    Janet Abadee, mother of Joel and Matt;

(iii)    Zac Kaplan, brother of Joel and Matt;

(iv)    Sarit Cohen, mother of Guy;

(v)    Natalie Snelling, mother of Zack; and

(vi)    Courtney Snelling, sister of Zack;

(b)    students currently at BSC at the time of the trial:

(i)    Ryan Barrett;

(ii)    Dane Foster;

(iii)    Max Joho; and

(iv)    Jasmine Karro;

(c)    students formerly at BSC:

(i)    Matthew Austen;

(ii)    Lilly Curnow;

(iii)    Corey Fooks;

(iv)    Alma Goldberg;

(v)    Ariel Katz;

(vi)    Epaminondas Notis Korkoneas;

(vii)    Elliot McMahon;

(viii)    Ruby Micheli;

(ix)    Jules Paul;

(x)    Bella Saffer;

(xi)    Nathan Shulman;

(xii)    Angus Tranter; and

(xiii)    Howard Zezula;

(d)    madrichim (see terminology section, below):

(i)    Danny Feigen;

(ii)    Leah Hain;

(iii)    Jemma Katz; and

(iv)    Gabriel Lefkovits; and

(e)    a number of witnesses from other organisations:

(i)    Esther Meltzer, from Liebler Yavneh college;

(ii)    Dr Dvir Abramovich, from the Anti-Defamation Commission; and

(iii)    Detective Senior Constable William Lordanic.

22    In the course of the trial the applicants made applications to call two further witnesses. I refused those applications in Kaplan v State of Victoria (No 5) [2022] FCA 909 and Kaplan v State of Victoria (No 6) [2022] FCA 1048.

23    In addition to the three individual respondents, the respondents called 22 lay witnesses. These witnesses were:

(a)    former BSC principal Julie Podbury;

(b)    assistant principals:

(i)    Kaye Sentry;

(ii)    Olympia Angelidis; and

(iii)    Pasquale Gargano;

(c)    student managers (see terminology section, below):

(i)    Anh Thi Trinh;

(ii)    Carolyn Dunn;

(iii)    Jan Chan;

(iv)    Lana Goldstone;

(v)    Shae Hower;

(vi)    Nathan Hutchins;

(vii)    Rebecca McMahon;

(viii)    Sokrurm Drechsler;

(ix)    Lindsey Nash; and

(x)    Mali Lewis;

(d)    other teaching staff at BSC:

(i)    Elizabeth Bolton;

(ii)    Bryan Lynch-Wells;

(iii)    Michael Lyons; and

(iv)    Despina Sarikizis;

(e)    chaplains and wellbeing team staff:

(i)    Karen Gibson;

(ii)    Peter Mangold; and

(iii)    Tania Vairamuttu; and

(f)    Karen Kearney, who at the relevant time worked in the front administration office at BSC.

24    The applicants called six expert witnesses:

(a)    Dr Amanda Scott, a general practitioner;

(b)    Dr Kristy-Anne Adnams, a clinical psychiatrist;

(c)    Dr Maria Andrzejewski, a consultant psychiatrist;

(d)    Stephen Paul, an educational consultant;

(e)    Dr Matthew Tagkalidis, a consultant psychiatrist; and

(f)    Professor Suzanne Rutland, for her specialisation in research into Australian Jewry.

25    The respondents called one expert witness: Michael Whine, a senior consultant at the World Jewish Congress.

26    The evidence in the proceeding included a significant number of documents. The consolidated court book tendered and marked as an exhibit at the end of trial contained over 1,100 individual documents, many of which were compilations of multiple individual documents, including emails, student records, teacher and counselling notes, and other school records such as plans, school newsletters and other similar documents.

27    The parties sought to include a number of affidavits in the court book. These related mostly to discovery, but also to various applications brought by each party throughout the course of the trial. These included applications to suppress the names of certain individuals, to seek leave to amend pleadings, to rely on witness outlines, and to call further witnesses. The parties did not rely on those affidavits for the purposes of their closing submissions, with the exception of two affidavits: one in relation to discovery by Liam, and one in relation to the applicants’ application for costs-capping in the proceeding. With the respect to the latter affidavit, the respondents initially objected to the tender of that affidavit, but later withdrew that objection. Though the affidavits were not formally read for the purposes of the trial itself, no party objected to their inclusion in the court book. They were therefore admitted as part of the exhibit comprising the court book, as agreed between the parties. Absent any substantive reliance on those affidavits by the parties in their submissions, the utility of these affidavits to the Court’s fact-finding is limited.

28    A number of objections were made throughout the trial as to witness evidence. I gave rulings on those objections, which are recorded in the transcript of the trial, or which were recorded in written reasons provided to the parties directly. I also provided written reasons for ruling, and made orders, directing that certain evidence may only be used for certain purposes, and not for any other purposes, pursuant to s 136 of the Evidence Act 1995 (Cth). In addition, there were objections during the trial as to the content of certain expert reports. I gave rulings on those objections in Kaplan v State of Victoria (No 3) [2022] FCA 728 and Kaplan v State of Victoria (No 4) [2022] FCA 897, and in written reasons provided to the parties directly. The parties’ objections to the tender of documents were dealt with prior to the court book being consolidated and marked as an exhibit.

29    In addition to their oral openings and closings, the parties each filed opening and closing written submissions, as well as submissions on the application of the principles in Jones v Dunkel [1959] HCA 8; 101 CLR 298. The parties also filed chronologies, and the applicants provided a ‘Chronology of Minister’s wrongs’ and ‘Chronology of swastikas and antisemitic bullying’, which were placed on the Court’s file as submissions, as well as a number of additional aide memoire documents. The respondents provided the Court with a document detailing the number of classes, and size of those classes, at BSC across the relevant period. That document was marked as an exhibit.

TERMINOLOGY AND NAMES USED IN THESE REASONS

Antisemitism

30    This case is about alleged contraventions of the RDA. The RDA uses race, ethnicity and national origin as the attributes giving rise to differential treatment of the kind it prohibits. It does not use the term ‘antisemitism’. In some ways, ‘antisemitism’ may carry an imputation that is more extreme than “racially motivated conduct”. In s 9, the RDA makes no distinctions about the severity or gravity of conduct; only about its basis. Compare s 18C where, as I explain elsewhere in these reasons, there is an aspect of gravity or severity inherent in the prohibition. In their closing written submissions, the respondents eschewed the term ‘antisemitism’ (or “antisemitic conduct”) in favour of the term “racially motivated conduct”. They submitted the use of the terms “may obscure the kind of analysis required by the RDA”.

31    I accept that the term needs to be used carefully, conscious that it may encompass much more than the analysis required by the RDA. So much is apparent from my next findings about Professor Rutland’s opinions about a wider meaning of antisemitism. Professor Rutland’s opinion is that the term can also be used to encompass “anti-Zionism that seeks to delegitimise the State of Israel”. It is apparent from the definition used in her own report that this is an opinion she holds that lies outside the accepted definition of antisemitism. Since I have largely rejected the elements of the applicants’ case that turn on alleged statements about the State of Israel, it is not necessary for me to enter into any discussion on this issue. The RDA includes national origin, and to the extent that I have found the national origin of Guy as an Israeli citizen was a reason for Mr Varney’s conduct, those findings are based squarely on the terms of s 9 of the RDA, without any need to examine Professor Rutland’s opinion about an extended definition of antisemitism.

32    Therefore, when in these reasons I use the term antisemitism, I have done so bearing in mind the definition advanced by Professor Rutland in her evidence, which was not challenged by the respondents:

Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.

33    The definition above is the working definition adopted by the International Holocaust Remembrance Alliance. Professor Rutland explains in her report that this definition has been adopted by 37 countries, including Australia, and “hundreds” of non-governmental organisations. It was adopted by Australia after Australia became a full member of the IHRA in 2019. Professor Rutland states that at the Malmo Forum on Antisemitism in 2021, the then Prime Minister of Australia, Scott Morrison, made a formal statement adopting the definition as part of Australia’s pledge to fight antisemitism.

34    This definition sits comfortably with the conduct the RDA seeks to prohibit in s 9, and in s 18C subject to exceptions. It suggests, relevantly, the perception of a person or group as Jewish as being the reason for the conduct directed at them. That perception of being Jewish may plainly encompass the race or ethnicity of that person or group. In the context of the allegations made in this proceeding, I consider it is appropriate to use the term antisemitism as a descriptor for the student conduct in question. I do not use it as a substitute for the terms of the RDA, because I do not use it in relation to those alleged to have contravened the RDA in this proceeding, such as Mr Minack.

Names of student perpetrators

35    On 20 May 2022, the Court dismissed an interlocutory application made by the respondents: Kaplan v State of Victoria [2022] FCA 590. In that interlocutory application, the respondents had sought the suppression of the identities of 34 individuals whose names appear in the applicants’ pleadings and whose names also feature in the evidence. Many of those names are those of students who were at times referred to during the hearing as “student perpetrators” – students who engaged in, among other things, verbal and physical assaults, taunts, criminal conduct, Nazi salutes, racist assaults, battery and bullying of the applicants. Those students were not called as witnesses in the proceeding. They also were not named as respondents. Although there was insufficient justification for the making of suppression orders of the kind sought by the respondents in that application, neither is there are a need for the names of those students to appear in full in these reasons. Accordingly, in these reasons I will refer to those students only by their first names.

Other terminology used in these reasons

36    I have used the term leadership cohort in these reasons, usually together with a reference to Mr Minack and to BSC teachers. By this phrase I refer to those BSC teachers in leadership positions, namely Ms Podbury (while she was at BSC), Mr Minack (while he was principal and vice principal), Ms Angelidis, Mr Gargano and Ms Sentry. I do not include the relevant year level student coordinators (also referred to as student managers) in this description, because the evidence suggested they were often quite junior teachers. It was common ground that the year level coordinators were responsible for disciplinary decisions up to a certain level, beyond which the relevant decision (eg suspension) rested with Mr Minack as principal. However, in my opinion the year level coordinators did not, on the evidence, play a leadership role.

37    I use the terms Chronicle entries, Chronicle records or Compass records to refer to the records of student welfare and behaviour recorded by teachers at BSC, largely but not exclusively of negative student behaviour, within the digital management system Compass.

38    I use the term BSC records in these reasons to refer to the documentary evidence adduced as business records from the school, which includes emails, Chronicle records, teacher diary notes, counselling notes, forms and notices (relating to suspensions, for example), school reports, student learning plans or other types of plans, school newsletters and other similar school records.

39    I have used the term relevant period to describe the period covered by the applicants’ allegations; namely 2013 to 2020.

40    The applicants sought to employ a comparator (as is discussed further below in these reasons) in their arguments. The comparator for Jewish students was said to be students at BSC described interchangeably as “LGBT”, “LGBTQI”, “LGBTQI+” and “LGBTQIA+” in oral and written submissions. In these reasons, I will use the term LGBTQIA+ as a reference to lesbian, gay, bisexual, transgender, queer (or questioning), intersex, asexual, or other sexually or gender diverse people.

41    UJEB is a reference to the United Jewish Education Board, a not-for-profit organisation, that was described in the following terms by Jemma Katz, who was a UJEB madricha:

UJEB is a non-profit organisation that provides Jewish education for students who don’t go to a private Jewish school and J-Lunch is a program offered to those students at lunchtime where two youth leaders, for example, myself, would go into the school and provide – provide some casual – casual – yes – education, some fun games relating to Jewish festivals or Jewish law, traditions, things like that.

42    J-Lunch was also described as UJEB lunch in the evidence.

43    There were various madrichim who gave evidence as witnesses called by the applicants. Madrichim, also referred to individually as madrich or madricha, were described in the evidence as “youth leader[s]”, or “leader[s]” or “facilitators”. One madricha, Leah Hain, described her role as follows:

I would go into the schools and teach kids at public schools all about Judaism, what’s coming up in the Jewish calendar, what was going on with events concerning Australian and Israel, anything that they needed to know that was coming up, educate on traditional values and how Judaism works, as well as making sure that their welfare and health were taken care of in regards to their religion, making sure that the school environment was a safe environment and that they knew that they had a community and people to talk to.

44    I use the applicants’ first names throughout these reasons, which is broadly consistent with how the applicants were content to be identified during the trial. I have done the same for student witnesses where those witnesses indicated they were content to be identified by their first names.

THE RDA ALLEGATIONS

RDA s 9

45    Section 9 of the RDA provides:

9     Racial discrimination to be unlawful

(1)    It is 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.

(1A)    Where:

(a)    a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and

(b)    the other person does not or cannot comply with the term, condition or requirement; and

(c)    the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;

the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person’s race, colour, descent or national or ethnic origin.

(2)    A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.

(3)    This section does not apply in respect of the employment, or an application for the employment, of a person on a ship or aircraft (not being an Australian ship or aircraft) if that person was engaged, or applied, for that employment outside Australia.

(4)    The succeeding provisions of this Part do not limit the generality of this section.

46    In Wotton v Queensland (No 5) [2016] FCA 1457 at [530] and [531] I explained my understanding of s 9, which I apply in these reasons:

It is critical, as Allsop J observed in Baird at [37], that provisions such as s 9(1) not be dissected into small pieces so that their intended holistic operation and meaning are lost. To describe s 9(1) in terms of a series of “elements”, as the respondents’ submissions do, is to take a step along the path to dissection. Nevertheless, s 9(1) can be seen as having a conduct-based limb and an outcome-based limb. First, there must be an act involving a distinction, exclusion, restriction or preference which is based on race, colour, descent or national or ethnic origin. This is the conduct-based limb. Second, the act (in the expanded character given to it by the first limb) must have either the purpose or the effect of nullifying or impairing a human right. This directs attention to the actual outcome of the act, if “effect” is the focus; or on what was intended, in a purposive sense, to be the outcome, if “purpose” is the focus.

The first limb looks to what happened, and its connection with race. The second limb looks to the outcome or consequences (actual or intended) of what happened.

(Original emphasis.)

47    In Wotton at [545] I also made these observations which are relevant to the current proceeding and which I adopt and apply:

Although Gageler J [in Maloney v The Queen [2013] HCA 28; 252 CLR 168] employs the language of s 10 (“to a more limited extent”) rather than the language of s 9 (“nullifying or impairing the recognition … on an equal footing”), the point is the same. The lack of dignity and respect that inheres in treating people in particular ways based on race lies in the difference between how the human rights and freedoms of those people are recognised and enjoyed and how the human rights and freedoms of people of other races are recognised and enjoyed. To answer the whole of the question posed by s 9(1), one must ask not only whether race is the reference point for the differential treatment, but also what is the nature and extent of the difference.

48    As I explain below, even if a “comparator” is not an essential element of the statutory prohibition in s 9, that is why comparison of treatment in an evidentiary sense can be an appropriate way to ascertain what was the true basis or reason for certain treatment.

49    There was no debate between the parties that the applicants’ case under s 9 was largely an ‘omissions’ or ‘failures’ case, relying on the terms of s 3(3) of the RDA, which provides:

For the purposes of this Act, refusing or failing to do an act shall be deemed to be the doing of an act and a reference to an act includes a reference to such a refusal or failure.

50    As senior counsel for the respondents accepted in closing submissions, the three broad categories of omissions or failures which were repeated in the applicants’ pleadings, concise statement, evidence and submissions were failures to remove antisemitic graffiti (mostly, but not exclusively, swastikas), failures to “discipline” perpetrator students and failures to “educate” students as a cohort, including student perpetrators but not limited to them.

51    The respondents contended in writing:

The RDA also requires the basis for the conduct to be identified; what is sometimes called the “true basis”. There is no requirement to show a “strict causal nexus”, but the applicants must show a “close relationship between the designated characteristic and the impugned conduct”. This gives rise to particular complexities where the allegation is a person omitted to do something based on race; that would seem to require some evidence the person first turned their mind to the matter.

(Original emphasis, footnotes omitted.)

52    In oral closings, senior counsel for the respondents developed this at various points. For example, he submitted:

But our short point there will be in an omissions case where it’s based – where you have to have a connection with – based on race, there needs to be at least some element of awareness, knowledge turning the mind. It can’t just be a pure omission case in the absence of any knowledge otherwise you won’t get the necessary based on race connection. And so in order for an omission case – no doubt omission cases can succeed, but frankly there aren’t that many of them. …

… it’s difficult to hold someone like the principal liable for a section 9 omission, absent something that suggests that he turned his mind to the point of decided not to do it or refused to do it or didn’t do it, omitted to do it, but for some reason it was based on race. And so that’s why we do emphasise that the applicant’s case really had not paid any attention to who is the person that did the act, what were the circumstances in which they did that act, what knowledge did they have at the time that they did that act? By simply aggregating it altogether and lumping it altogether under the label of “the school”, it makes it all completely impenetrable and completely impossible to analyse properly for the purposes of section 9.

53    Senior counsel also accepted, by reference to some of the authorities on negligence and the law in Victoria on Crown immunity, that much of the legal responsibility (and therefore the factual focus) comes back to the conduct of Mr Minack. In my opinion, this reality also arises from the very nature of a principal’s legal duties and functions at a school: in terms of the implementation of policies, the setting of standards of behaviour in students, and the setting of standards, tone and culture in terms of how staff at a school behave, react to various circumstances and deal with student behaviour. The leadership responsibility falls directly on a principal.

54    Appropriately, in his cross-examination, Mr Minack accepted this was the case, and the respondents’ submissions did not seek to walk away from that reality either.

55    I accept, as the respondents submitted, that since s 9 is about conduct, when in a given case allegations relate to refusal or failure, there must be some element of consciousness, or choice, in the actor. The justification for that, as senior counsel suggested, is that s 9 is concerned with the reason or basis for conduct – whether that conduct is positive conduct or a refusal or failure to do an act. In other words – the question is either – why did a person act as they did; or why did they refuse to act? The inquiry into that question may encompass some examination of the state of mind of the actor.

56    To take the simplistic example of the provision of a rideshare service. Suppose a Japanese person calls a rideshare, and either:

(a)    the driver then charges the person twice the appropriate fare (the positive conduct being the charging of an inflated fare); or

(b)    the driver then refuses to allow the person to get into the car (the conduct being a refusal within the terms of s 9 by reason of s 3(3)).

57    Putting to one side the effect on human rights for the purposes of this simplistic example, for a contravention of s 9 to be established an applicant will need to prove that the basis for either the positive conduct of charging an inflated fare involving a distinction, exclusion or preference based on race, colour, descent or national or ethnic origin (ie the less favourable treatment), or the omission/refusal of not allowing the person to get into the car, involving a distinction, exclusion or preference based on race, colour, descent or national or ethnic origin, was that the person was Japanese. The evidence may be circumstantial, but as the respondents submitted, in the second set of facts, at some point the Court will need to be persuaded about why the rideshare driver refused to allow the person to get into the car. That is likely to involve, as a forensic reality, some assessment by the Court of the state of mind of the actor – their attitude, their reasoning; their choices.

58    In the present proceeding, the applicants must prove that the failures they ascribe largely to Mr Minack as the principal of BSC had an element of (assuming failures can be proven) consciousness or choice in them, in order to be able to satisfy the Court that the basis for the distinction, exclusion or preference arising from the failures was race.

59    It is important to underscore that in the circumstances of the present proceeding, this exercise – asking whether the distinctions involved in the failures were based on race – is not confined to asking whether the failures were because the applicants are Jewish. That would not be accurately to apply s 9. The question is whether the failures involved a distinction based on race. Here, the Jewish race. The failures and distinction might be proven by reference to the applicants’ Jewishness being a factor in the failures to discipline student perpetrators appropriately, or failures to take adequate action to reduce the likelihood of bullying and harassment, in the sense of not as much regard being paid to the protection of Jewish students.

60    However, some of the allegations – such as the failures to remove graffiti – employ race in a different way, a way I consider permissible under s 9. In those examples, it is not so much the race of the applicants, as the race of the people who are the subject of the graffiti. In other words, the s 9 question is whether the failure to remove graffiti that is offensive to Jewish people (not just the applicants) involved a distinction (tolerance of graffiti) based on the graffiti being about Jewish people or being graffiti particularly offensive and triggering for Jewish people, rather than, for example, graffiti about sexual topics, or homophobic graffiti.

61    In terms of the approach to the evidence in deciding whether on the balance of probabilities conduct was “based on” race, there are at least two observations by Kiefel J (as her Honour then was) in Toben v Jones [2003] FCAFC 137; 129 FCR 515 which should be noted.

62    First, at [58], her Honour described the relationship between the s 9 act and race as subject to an inquiry whether “anything suggests race as a factor” in the act, or conduct.

63    This might also be expressed as the need to identify a sufficient connection between the restriction/distinction/preference produced by the conduct, and race or ethnic origin. In Hamzy v Commissioner of Corrective Services NSW [2022] NSWCA 16; 107 NSWLR 544 at [68], Basten JA said:

The necessary and sufficient connection between the restriction and race (ethnic origin) in the case of a disparate impact is the fact that it adversely affects persons of one ethnic group disproportionately. That is the fundamental criterion of disparate impact discrimination, founded on “effect”, not purpose.

64    Second, Kiefel J’s observations in Toben v Jones at [63] are helpful, with respect:

The inquiry is as to the true reason or true ground for the action (see Banovic at 186 per Dawson J). A person whose conduct is complained of might not always be a reliable witness as to their own actions. Their insight may be limited. Their true reasons may however be apparent from what they said or did. In some cases there may be other circumstances which throw light upon the reason for their actions.

(Original emphasis.)

65    As I observed in Wotton, by reference to the reasons of Allsop J (as his Honour then was) in Baird v Queensland [2006] FCAFC 162; 156 FCR 451 at [37], s 9 ultimately must be approached in its whole form. Dividing it into elements can tend to remove the focus from the purpose of the provision as a whole, which is to prohibit less favourable treatment on the basis of (relevantly) race, where that treatment had particular effects on human rights. See also Hamzy at [53], Basten JA.

66    Provisions such as s 9 are intended to operate in the real and often messy world of human experience and human engagement. They have a critical but not complicated objective – to make unlawful (and thus discourage) the differential and negative treatment of individuals because they happen to belong to one race, or have one kind of ethnic origin, rather than another.

67    There is a question about which attribute nominated in s 9 and s 18C is the correct attribute for Jewish people. The respondents accepted “national origin” was the applicable attribute to those aspects of the allegations that involved some of the applicants identifying as Israeli citizens, or as Israeli. The respondents also submitted that “ethnic origin” was an appropriate attribute to describe Jewish people. In Toben v Jones, the Full Court accepted both race and ethnic origin could be applicable, the primary judge having used both, and there being no debate on the appeal about that approach: see at [22], [37]-[38] (Carr J), [57] (Kiefel J), [153]-[154] (Allsop J). See also Hamzy at [59] (Basten JA) and the authorities there referred to. I propose to use the formulation of race in these reasons.

68    In her cross-examination, Professor Rutland said:

And being – the – how to define a Jew is so complex, because not all Jews are religiously observant. The Jewish identity can include national, ethnic, cultural – you know, all the cultural factors. I mean, culture includes religion, ethnicity, food. There’s so many elements to it. And there are so many different ways today that Jews identify as being Jewish. So it can – it is definitely ethnic from a Jewish perspective. You can have someone who’s totally irreligious, rather, and yet identifies strongly as being Jewish.

69    This holistic sense of Jewish identity came through in the evidence of many of the applicants’ witnesses. Being Jewish was for the applicants, I find, a way of identifying that was not restricted to their religious faith, but encompassed many aspects of their lives – how they dressed, who they associated with, what they were interested in, how they viewed the State of Israel, and how they saw themselves in their families and in the wider Jewish community.

70    The respondents correctly submit, and the applicants accept, that s 9 does not contain any requirements for proof of the circumstances of a comparator before a contravention can be found. That does not make comparators irrelevant, as the respondents appeared to suggest. Discrimination is about differential treatment. This raises the question – different from whom? The whole purpose of a comparator in a discrimination context is to assist in focusing on first whether there was differential treatment, and second on the reason for that treatment. Using a comparator who has different attributes, or who does not have a nominated attribute, can assist in a forensic and reasoning sense in identifying why a person was treated differentially (assuming that has been established).

The human rights relied on by the applicants

71    The applicants relied on a plethora of human rights for the purposes of their s 9 arguments in particular. The human rights relied on were expanded in submissions from what appeared in the statement of claim and the concise statement.

72    The rights pleaded or referred to in the statement of claim and the concise statement, as far as I can discern, included:

(a)    the right to education;

(b)    the right to security of person and protection (including from violence);

(c)    the right to equality before the law;

(d)    the right to access a public service;

(e)    the right to equal participation in cultural activities;

(f)    the right to freedom of thought, conscience and religion;

(g)    the right to freedom of expression; and

(h)    the right to preserve Jewish identity.

73    None of the applicants’ human rights were “nullified” by any of the conduct I have found proven. The term “nullified” in s 9 connotes circumstances where a person’s human rights are abrogated. The applicable effect in the circumstances of these proceedings is impairment, which connotes damaging or adverse effects on a person’s human rights. Further, the circumstances of this proceeding concern the enjoyment or exercise of human rights by the applicants, while they were students at BSC and in the context of their attendance at a state secondary school.

74    In the present circumstances as I have explained them, it is unnecessary to address all the human rights relied upon, because I am satisfied there were three human rights which were impaired in ways that had differing effects and therefore should properly result in distinct consideration in the Court’s awards of compensation. Even if there were other human rights of the applicants that were impaired, in my opinion they did not result in any different kind of harm that flows through to the awards of compensation. The arguments by the applicants’ counsel about the multitude of human rights contended to be engaged were scattered, undeveloped and little more than assertions. It is neither efficient nor necessary for the Court to trawl through them in an already lengthy judgment such as this.

75    Some of the human rights relied on, such as the right to freedom of thought, conscience and religion, were not impaired at all by the conduct I have found to have contravened s 9 of the RDA. There was no prohibition imposed on any of the applicants that impaired their rights to freedom of religion. They were free to wear religious clothing, and I have found that the only times in the evidence there were any incidents about their religious clothing (kippah, necklace etc) were either anomalous examples of conduct by an individual teacher, or part of the antisemitic harassment by students, who are not respondents to this proceeding. BSC policies appropriately recognised freedom of religion in students, and the evidence does not suggest any denial of this freedom in practice.

76    The three human rights I propose to consider in more detail are:

(a)    the right to security of person and protection;

(b)    the right to education; and

(c)    the right of the applicants to preserve their Jewish identity.

77    The right to security of person and protection is expressed in that form in art 5(b) of the International Convention on the Elimination of All Forms of Racial Discrimination, and so is expressly picked up by s 9(2) of the RDA. In full, art 5(b) provides:

The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution;

78    The right appears in various forms across international instruments, most prominently in the first sentence of art 9(1) of the International Covenant on Civil and Political Rights:

Everyone has the right to liberty and security of person.

79    Though the remaining paragraphs of art 9 relate to deprivation of liberty, the right to security of person is considered a distinct right which applies regardless of whether a person is detained or not detained. The right protects individuals against intentional infliction of physical or mental injury, and carries with it an obligation to protect individuals from threats to life or bodily harm, from either government or private actors. See chapter 11 of Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (Oxford University Press, 3rd edition, 2013), and the Human Rights Committee’s General Comment No 35 at [9]. See also Wotton at [1514].

80    The applicants in their written closing submissions repeatedly refer to the right to “security of person / protection from violence”. For the latter component, the applicants also rely on art 19 of the Convention on the Rights of the Child. For example, the applicants submit at [21]:

Moreover, the Applicants’ right to security of person and protection (Art 5(b)) was violated by the Swastikas. Lerner states that the purpose of Art 5(b) is ‘to avoid any distinction in the protection of individuals against any violence, whoever inflicts it.’ (p59). Relevantly, Art 19 CRC delineates a poignant model for prevention of violence in all its forms, including mental violence (Art 19(1))), and the States’ obligations to respond to harm, for children. Art 19 is the core CRC provision for protection of children. Art 19 CRC binds people who have ‘the care of children’, including ‘education’, ‘school’ and institutional/government personnel. The definition of ‘violence’ extends to intentional and non-intentional acts of commission or omission by caregivers, causing physical, psychological or emotional harm.

(Emphasis in original, footnotes omitted.)

81    Article 19 of the CRC is expressed as follows:

1.    States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

2.    Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.

82    The respondents dispute the characterisation of art 19 as a “right”, in a footnote to paragraph [13] of their written closing submissions:

On the other hand, several of the “rights” the applicant relies upon impose obligations on the State Party to take specific action or to agree aspirational concepts, for example: Article 19 of the CRC places an obligation on a State Party to “take all appropriate legislative, administrative, social and educational measures to protect the child” from certain conduct.

83    While art 19 of the CRC is more expansive in setting out the measures to be taken, art 24(1) of the ICCPR does express a related concept as a “right”:

Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.

84    Though their submissions frequently elide art 5(b) of the ICERD and art 19 of the CRC, the applicants have not clearly developed the relationship they appear to submit exists between the right to security of person and the right of the child to protection (or, on the respondents’ contention, the obligation of the state to protect children). I agree that art 19 has some relevance to the right to security of person in the context where the victims of harm are children. However, I find that the right to security of person, as it is expressed in art 5(b) of the ICERD, is sufficient to capture the nature of the impairment alleged by the applicants, being physical and mental harm. To the extent that art 19 of the CRC, and the related rights of the child to protection, such as art 24(1) of the ICCPR, give content to the nature of the protection that should be afforded to children in protecting them from physical and mental harm, I have had regard to those articles to that extent only, and need not decide whether art 19 itself provides an independent right that is capable of being impaired for the purposes of s 9 of the RDA.

85    The right to education (or the right to education and training as it is expressed in art 5(e)(v) of the ICERD) is enshrined in art 28 of the CRC, art 13 of the International Covenant on Economic, Social and Cultural Rights and art 26 of the Universal Declaration of Human Rights. The right is articulated differently between these conventions, but not in ways materially relevant to the content of the right for present purposes. See the commentary of Christian Courtis and John Tobin in John Tobin (ed), The UN Convention on the Rights of the Child: A Commentary (Oxford University Press, 2019) at p 1059. The most detailed articulation of the right is found in art 13 of the ICESCR and is elaborated upon in commentary produced by the Committee on Economic, Social and Cultural Rights. Article 13(1) provides:

1.    The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.

86    The right to education is recognised as a right enabling the enjoyment of other rights and one that “epitomizes the indivisibility and interdependence of all human rights”: General Comment 11 of the CESCR at [2]. The CESCR further elaborates on the content of the right in General Comment 13, adopting the “four A” framework of availability, accessibility, acceptability and adaptability: see General Comment 13 at [6]. The applicants make submissions in respect of the latter three of these features: see, for example, the applicants’ written closing submissions at [31] and [49]. I agree that “availability” in the sense of the ICESCR is not in issue in this proceeding. Accessibility requires educational institutions to be accessible to everyone without discrimination on any prohibited grounds. Acceptability requires the form and substance of education to be relevant, culturally appropriate and of good quality. Adaptability requires education to be flexible to adapt to the needs of a changing community and respond to the needs of students in diverse social and cultural settings. The right to education, like all rights under the ICESCR, imposes the tripartite obligation on the state to respect, protect and fulfil: see General Comment 13 at [46]-[48]. In the circumstances of this proceeding, the Court’s findings on the impairment of the applicants’ human right to education concern accessibility, insofar as it encompasses a safe educational environment, and acceptability and adaptability insofar as they encompass an educational environment that encourages respect of Jewish traditions as it might any other religious or racial or ethnic traditions, and discourages student behaviour and attitudes that involve insult, offence and humiliation towards students because they are Jewish.

87    The CRC expands on the right to education in art 29 by setting out the agreed aims of the education of the child, including “the development of respect for … his or her own cultural identity” (art 29(1)(c)). However, I agree with the submissions of the respondents that art 29 reflects an agreement between State Parties, and does not recognise an individual human right. To the extent that the applicants rely upon art 29 as a distinct right that can be impaired for the purposes of s 9, that contention is misconceived.

88    The right of the child to preservation of identity is unique to the CRC. It is not one of the rights expressly included in the remit of s 9 through s 9(2) because it is not listed in art 5 of the ICERD. However, art 5 of the ICERD is not to be treated as an exhaustive list of rights; rather, as stated in General Recommendation 20 of the Committee on the Elimination of Racial Discrimination, art 5 “does not of itself create civil, political, economic, social or cultural rights, but assumes the existence and recognition of these rights”: at [1]. It is therefore legitimate to look to other international instruments to give content to the phrase “any human right or fundamental freedom” in s 9(1). See Iliafi v Church of Jesus Christ of Latter-Day Saints Australia [2014] FCAFC 26; 221 FCR 86 at [62] (Kenny J, Greenwood and Logan JJ agreeing).

89    The text of art 8 of the CRC reads:

1.    States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.

2.    Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.

90    The article explicitly protects certain elements of a child’s identity, being “nationality, name and family relations as recognized by law”. Here, “nationality” is clearly engaged by the applicants who identify as Israeli. The term “identity” is otherwise undefined, and the Committee on the Rights of the Child has not published any definition of the term. The applicants submit that “identity” includes “matters of ‘cultural’ and ‘religious’ identity”. The applicants rely on the work of John Tobin and Jonathan Todres in their commentary on art 8 in the CRC Commentary in support of this submission.

91    Tobin and Todres provide useful insight into the drafting history of art 8, which reveals that the word “including” was used “so that other elements of identity will not be excluded”: see CRC Commentary at p 291. Construing the article in the context of surrounding articles would support a broader reading of the term, particularly the right of the child to be heard (art 12), the right to freedom of thought, conscience and religion (art 14) and the rights of indigenous children and those belonging to minority groups to enjoy their own culture, profess and practise their religion and use their own language (art 30). This is the position argued by Tobin and Todres in the CRC Commentary: see at pp 285, 295-6.

92    There is limited jurisprudence on the content of the right outside of the explicitly protected categories, but what case law there is tends to support a broader interpretation of the term “identity”. From the United Kingdom, in J v B and the Children [2017] EWFC 4 the Court relied on art 8(1) in finding that the preservation of the children’s Jewish identity outweighed the importance of contact with their transgender parent: at [185], [187]. J concerned three young children who were being raised in an ultra-orthodox Jewish community. Their father had transitioned to female and left the community. They and their mother remained in the community. The case concerned access by the father to the children. In a compassionate and insightful judgment, Jackson J found (with some reluctance) that only indirect contact should be permitted, and as part of his reasoning noted (at [185]):

These parents decided to bring up their children according to the narrow ways of the community, and they continue to agree about this. That being the case, the priority must be to sustain the children in the chosen way of life, preserving their existing family and social networks and their education. It is not to be forgotten that children have the right to preserve their identity (UNCRC Art.8), something that is a matter of particular pride to these children.

93    The New South Wales Court of Appeal found that art 8(1) was relevant to the issue of “cultural identity” in Re Tracey [2011] NSWCA 43; 80 NSWLR 261 at [48] (Spigelman CJ, Beazley JA agreeing), although the Court did not give any detailed reasoning. In Re Alex [2009] FamCA 1292; 248 FLR 312 at [180], Bryant CJ included art 8 as one of the rights being “particularly apposite” to a case regarding a child’s gender dysphoria.

94    In Campbell v Northern Territory of Australia (No 3) [2021] FCA 1089; 295 A Crim R 1, the applicant invoked art 8 as one of the bases for an (unsuccessful) s 9 claim regarding the impact of youth detention on the applicant’s Aboriginal identity, but the Court did not make any findings on this matter.

95    I am satisfied that “identity” is broad enough to incorporate the applicants’ Jewish identity and therefore that the right is engaged. In art 8, “identity” is about more than being given the capacity to prove a person is who they say they are: it is about more than identity documents and recognition of where a child belongs. It extends in my opinion to cultural and religious identity – to a child being able to develop and express who they are in terms of their race, their culture and their religion. In my discussion of Professor Rutland’s evidence, I have accepted her opinions about how important it can be for Jewish young people to be able to express and be proud of their cultural and racial identity. Doing so is an expression of their CRC art 8 rights.

96    Clearly, as with many human rights, the manner in which rights can be expressed or manifested may be justifiably limited or restricted in certain circumstances. Some of BSC’s rules and policies about uniforms for students from various racial and religious backgrounds are examples. As I have explained, there is no persuasive evidence that there was anything unlawful about the nature of those rules or polices or their implementation. In the context of the allegations I have found proven, the right to Jewish identity is engaged in terms of Mr Minack, and through him the leadership cohort and teachers at BSC, failing to take adequate steps to protect Jewish students from antisemitism, so that they did not have to hide or conceal their Jewish identity, or feel ashamed or humiliated because they were Jewish.

97    Therefore, for each of the individual applicants, I have considered any contraventions of s 9 in respect of these three human rights, and have considered the effects of impairing these rights in considering the appropriate compensation that should be given, where I have found a contravention of s 9.

RDA s 18C

98    Section 18C of the RDA provides:

18C    Offensive behaviour because of race, colour or national or ethnic origin

(1)    It is 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.

Note:    Subsection (1) makes certain acts unlawful. Section 46P of the Australian Human Rights Commission Act 1986 allows people to make complaints to the Australian Human Rights Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence.

(2)    For the purposes of subsection (1), an act is taken not to be done in private if it:

(a)    causes words, sounds, images or writing to be communicated to the public; or

(b)    is done in a public place; or

(c)    is done in the sight or hearing of people who are in a public place.

(3)    In this section:

public place includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.

(Original emphasis.)

99    Again, there were alleged contraventions of s 18C which were said to be systemic and in that sense to affect all the applicants, and others which were specific to some of the individual applicants.

100    It appears to be common ground that, for the purposes of s 18C, all of the acts and omissions alleged were done “otherwise than in private”, the school environment being a public environment.

101    In my opinion, some of the applicants’ common or systemic allegations misconceive the purpose and object of s 18C. While the student conduct which forms the underlying factual substratum for the applicants’ allegations against the respondents might well be captured by the terms of s 18C, the alleged failures and omissions by Mr Minack (directly or through BSC staff whom he managed) are not.

102    The exception to this, in the common allegations, is the March 2019 speech by Mr Minack. I accept that is capable of being a contravention of s 18C, at least on the applicants’ allegations. The same is true, in theory, of the allegations by Matt and Guy against Mr Varney and Ms Flessa.

103    The reason for my opinion is relatively straightforward. By s 3(3) of the RDA, failures and omissions are deemed incorporated into the concept of an “act”, and as I have explained above Mr Minack’s failures and omissions could contravene s 9, because there could be a direct relationship between the failure or omission and race; namely, that antisemitic student conduct was tolerated to a far higher degree than other forms of wrongful student behaviour.

104    In contrast, it is not Mr Minack’s failures as principal to react appropriately to antisemitic conduct (including antisemitic graffiti) which was “reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people”. It was the antisemitic conduct (including the making of graffiti) itself.

105    The applicants’ case fails to appreciate this difference between s 9 and s 18C. That is why, although by s 3(3) it is conceivable that s 18C could be contravened by an omission or a failure, it is difficult in reality to see how that might occur. The principal focus of s 18C is on the positive conduct of an individual and its effect on another person (or group), provided that objectively the reason for that conduct is the race, colour or national or ethnic origin of the other person (or of some or all of the people in the group). As French J (as his Honour then was) explained in Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16; 135 FCR 105 at [70], the legislative intention behind s 18C (and 18D) in the second reading speech introducing these provisions was “to close a gap in the legal protection available to the victims of extreme racist behaviour”, and to balance the principles of free speech against the need for this protection. His Honour quoted the second reading speech:

Surely the promotion of racial hatred and its inevitable link to violence is as damaging to our community as issuing a misleading prospectus, or breaching the Trade Practices Act.

106    That is why, as I have noted, the antisemitic conduct of the BSC students may well have in theory fallen within the terms of s 18C, subject to the matters of sufficient seriousness in any given act, to which French J in Bropho referred at [70].

107    This is not an irrelevant point, but its relevance is not as suggested by the applicants’ arguments. Its relevance is to the attitude of Mr Minack and BSC staff to the antisemitic conduct perpetrated on the applicants during the relevant period. I include the drawing of swastikas in this, especially when those swastikas were deliberately drawn for one or more of the applicants to see. But I refer more pointedly to much of the other antisemitic conduct which I have found proven – the disgusting taunts about ovens and chimneys, the taunts about money and coins – these kinds of behaviour promote racial hatred of Jewish people. So much is obvious. But it did not appear obvious to Mr Minack or to BSC staff. This kind of conduct is what the federal Parliament sought to give people such as the applicants protection from, by the enactment of s 18C and s 18D, and their offence equivalents. The law of Australia gave them this protection, but the conduct of Mr Minack, and through his lack of appropriate leadership on this matter, the other staff at BSC, impaired that protection. The existence of provisions such as s 18C and s 18D (and for that matter, equivalents in Victorian State law – see, for example, Racial and Religious Tolerance Act 2001 (Vic) s 7), should have marked out to any reasonable principal and teaching staff that they needed to take complaints about this kind of behaviour more seriously than they did. The irony of imposing the study of Maus on BSC students while this kind of behaviour went on, and was dealt with inadequately and sometimes not at all, is a stark one.

108    The circumstances in which an omission could have the effect of offending, or insulting, humiliating or intimidating, are more difficult to conceive. The applicants did not develop at all in their argument how this novel approach to s 18C fell within the text, context and purpose of the provision.

109    Unsurprisingly, the vast majority of cases dealing with s 18C have involved positive conduct: see, for example, Bropho; Toben v Jones; Bharatiya v Antonio [2022] FCA 428; Haider v Hawaiian Punch Pty Ltd (t/as The Honeypot Club) [2015] FCA 37; Silberberg v The Builders Collective of Australia Inc [2007] FCA 1512; 164 FCR 475; Creek v Cairns Post Pty Ltd [2001] FCA 1007; 112 FCR 352; Hagan v Trustee of Toowoomba Sportsground Trust [2000] FCA 1615; Murugesu v Australia Post (No 2) [2016] FCCA 2355; Barnes v Northern Territory Police [2013] FCCA 30; Kanapathy v in de Braekt (No 4) [2013] FCCA 1368; Campbell v Kirstenfeldt [2008] FMCA 1356. While there have been at least one, and possibly two, cases where the Court has considered an omission, failure or refusal was capable of engaging s 18C, the circumstances concern internet posts and are quite different from the present circumstances: see Silberberg at [34]; Clarke v Nationwide News Pty Ltd t/as Sunday Times [2012] FCA 307; 201 FCR 389 at [108]-[110].

110    Thus, s 18C is in principle readily applicable to Mr Minack’s March 2019 speech. The making of the speech, in the context it was made and with the content it had, was clearly an “act” to which it is possible to apply the terms of s 18C(1)(a) and ask if it was, objectively, reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate one or more of the applicants, or Jewish students at BSC, or BSC students more generally (or some other relevantly defined group). The same is true of the positive statements and conduct alleged by Matt and Guy against Mr Varney and Ms Flessa. Otherwise, the bulk of the applicants’ s 18C allegations are misconceived.

NEGLIGENCE: THE CORRECT APPROACH AND SOME GENERAL FINDINGS

111    The respondents correctly submitted that the way the applicants’ counsel had approached the liability of the State, in terms of submissions throughout the trial, in cross-examination and in final submissions, was misconceived. The misconception was, the respondents submitted, apparent from the repeated references to “the school” and “BSC”, as if through these descriptors some liability could attach either to individuals, or to the State.

112    In Leichardt Municipal Council v Montgomery [2007] HCA 6; 230 CLR 22, a case about the liability in negligence for the conduct of independent contractors, Gleeson CJ described (at [6]) the character of a non-delegable duty of care:

A conclusion that, in given circumstances, a defendant who is sued in negligence owed a duty going beyond a duty to exercise reasonable care to avoid injury (or injury of a certain kind) to a plaintiff, and extending to a duty to ensure that reasonable care to avoid injury to the plaintiff was exercised, is commonly described as a conclusion that a defendant was under a non-delegable duty of care to a plaintiff. It is a proposition of law concerning the nature or content of the duty of care. A duty of this nature involves what Mason J described in Kondis v State Transport Authority as “a special responsibility or duty to see that care is taken”.

(Footnotes omitted.)

113    The common law “non-delegable duty of care” in relation to school authorities and their pupils was confirmed in Commonwealth of Australia v Introvigne [1982] HCA 40; 150 CLR 258. It was described by Gleeson CJ in the following terms in New South Wales v Lepore [2003] HCA 4; 212 CLR 511 at [2]:

A school authority may have been negligent in employing a particular person, or in failing to make adequate arrangements for supervision of staff, or in failing to respond appropriately to complaints of previous misconduct, or in some other respect that can be identified as a cause of the harm to the pupil. The relationship between school authority and pupil is one of the exceptional relationships which give rise to a duty in one party to take reasonable care to protect the other from the wrongful behaviour of third parties even if such behaviour is criminal. Breach of that duty, and consequent harm, will result in liability for damages for negligence.

(Footnotes omitted.)

114    In Lepore at [105], Gaudron J expressed the general common law position in this way:

If a pupil is injured on school premises during school hours because reasonable care has not been taken to provide a safe school environment, the school authority is thereby shown to be in breach of its personal or non-delegable duty to provide a safe environment. And that is so no matter whose act or omission was the immediate cause of the pupil’s injury or whose immediate task it was to do that which would have eliminated the risk of injury or to refrain from doing that which created that risk.

115    In the extracts from Lepore, the person who owed the duty of care was described as a “school authority”. Similar expressions can be found in Introvigne, usually there by the use of the term “the school” as well as “the school authority”. Of course, in Introvigne, the High Court found that the Commonwealth itself had a non-delegable duty of care, and apparently was content to ascribe to the Commonwealth the role of “school authority”. The particular question that arises in this proceeding, which was underdeveloped by counsel for the applicants, was: insofar as Victoria is concerned, who or what is the “school authority” to which this non-delegable duty of care is to be applied?

116    The ambiguity in the term “school authority” must be resolved by reference to the particular legal situation in Victoria.

117    Section 23(1)(b) of the Crown Proceedings Act 1958 (Vic) provides:

the Crown shall be liable for the torts of any servant or agent of the Crown or independent contractor employed by the Crown as nearly as possible in the same manner as a subject is liable for the torts of his servant or agent or of an independent contractor employed by him.

118    The contention of the respondents is that, by this provision, the only liability the State of Victoria has in tort is vicarious liability. If there is a non-delegable duty of care, it resides, the respondents submit, with Mr Minack as the principal of BSC, with the State being vicariously liable for any negligence proven against the principal.

119    In State of Victoria v Subramanian [2008] VSC 9; 19 VR 335 at [9], Cavanough J said:

A primary or personal duty of care may attach to several parties within a school system: individual teachers, the school principal, and the school authority itself. Highvale Secondary College was conducted by the appellant, the State of Victoria. Ordinarily, the duty of a school authority to the pupils is a “non-delegable” duty. However, under the law of Victoria, the relevant liability of the appellant could only be a vicarious liability for the torts of its servants and agents, because the State of Victoria is generally immune from direct liability in tort.

(Footnotes omitted.)

120    Cavanough J referred for the last proposition to s 23(1)(b), further adding the position was common ground before him and noting a comparison with the position at common law as set out in Introvigne at 264, 269-71 (Mason J), 280-281 (Brennan J).

121    The respondents submit this approach was confirmed in Pateras v State of Victoria [2017] VSCA 31 at [58]-[59] and Salt v State of Victoria [2017] VSC 6; 52 VR 130 at [24], [32]. I agree those authorities should be understood in that way.

122    I accept the respondents’ submission that by reason of s 23(1)(b) of the Crown Proceedings Act, the position in Victoria is that the State has no direct liability in tort but has vicarious liability for its employees and agents. In the present circumstances, as senior counsel for the respondents submitted, it was Mr Minack as the principal of BSC who was “relevantly in the same position” and “effectively, had the same kind of non-delegable duty of care” as that explained by the High Court in Lepore (and in Introvigne).

123    The respondents also accepted, as Cavanough J explained in Subramanian, that an individual teacher may also owe an individual student a duty of care: see [19] of their written closing submissions where they contend, referring to Richards v State of Victoria [1969] VR 136:

A duty of care arises from the relationship of teacher and student. The teacher must take reasonable care for students’ safety, whilst the students are under the teacher’s control and supervision. It is a positive duty to take reasonable care to provide a safe school environment, but is not one which insures against injury. The teacher must only take reasonable steps to protect a student against risks of injury which ex hypothesi should have reasonably been foreseen.

124    Unlike the non-delegable duty reposed (relevantly in Victoria) in a principal of a school or “school authority”, if there is one, the duty of care owed by an individual teacher remains premised on individual failure to take reasonable care. That is, there must be alleged and proven conduct by an individual teacher said to constitute a breach of their individual duty of care to a student, as described in the respondents’ submissions. There must also be alleged and proven a causal link between that breach of duty by the individual teacher concerned and damage suffered by a student. In contrast, the non-delegable duty is recognised as an exception to direct fault-based principles in negligence: see Leichardt at [6], [23], Gleeson CJ.

125    Of course, no broad generalisations can be made about the circumstances in which the duty of care owed by an individual teacher to an individual student will arise, let alone be breached. These matters are highly fact-dependent.

126    Many of the applicants’ allegations as pleaded against individual teachers were too generalised to give rise to any clear allegation on the pleadings of the content of the positive duty of care owed by an individual BSC teacher and how it was breached. To take an example, despite many factual allegations being levelled at Ms Gibson about the way she dealt with Liam in her counselling sessions, the applicants do not plead that Ms Gibson, as an individual teacher, owed Liam a duty in the way she performed her role as counsellor to take reasonable care to provide a safe school environment so as to avoid reasonably foreseeable injury to Liam, nor how she breached any such duty, nor how any breach caused any particular damage to Liam. Nor, for example, was there any allegation that Ms Gibson owed Liam a duty to take reasonable care in passing on information revealed by him during counselling sessions to the BSC leadership cohort so as to avoid reasonably foreseeable injury to Liam, nor how she breached any such duty. There are simply no pleadings to any such effect. Therefore, the kind of duty of care contemplated in Richards and Subramanian in respect of individual BSC teachers does not arise, save (perhaps) for the allegations against Mr Varney and Ms Flessa. In those cases, the allegations related to one or more of the applicants and were referable to particular factual events. I deal with these allegations later in these reasons.

127    It may well be that many of the allegations made by the applicants against Mr Minack more closely approximate to an individual duty of care, because they often do involve failures or omissions by him, in his role as principal of BSC, to take the steps a reasonable principal would have taken to protect Jewish students from the high levels of antisemitic student conduct. Whether there were different characteristics in the duty of care owed by Mr Minack was not explored by either party, I assume because of the respondents’ concessions. However, as Gleeson CJ makes clear in Leichardt at [9], certain duties of care may also be “non-delegable” because “it is of their essence that they be performed by a particular person”. That may well be the true character of the duty of a principal of a school. Since the Crown Proceedings Act reposes only vicarious liability in the State, then at least insofar as a principal of a Victorian school is concerned, and depending on the factual situation in issue, the duty of care might be “non-delegable” in the sense I have just described, by reference to the extract from Leichardt at [9], as well as in the sense of a true “duty to ensure that reasonable care is taken”. Much will depend on the nature of the allegations made in a given case. In my opinion, the kind of “non-delegable” duty of care described by Gleeson CJ at [9] in Leichardt is also applicable to the applicants’ allegations. Since none of this was explored by the parties in light of the respondents’ concessions on liability for the conduct of Mr Minack if negligence was proven, I say no more about it. Either way, the outcome is the same on the Court’s findings.

128    Senior counsel for the State accepted that the description given by Murphy J in Introvigne at 274-275 and quoted by Gleeson CJ at [27] of Lepore was an appropriate description of the content of the duty of care owed by Mr Minack to students at BSC:

To take all reasonable care to provide suitable and safe premises … [and] [t]o take all reasonable care to provide an adequate system to ensure that no child is exposed to any unnecessary risk of injury; and to take all reasonable care to see that the system is carried out.

129    To this could be added the following observations. In Introvigne at 270-271, Mason J described the duty of the “school authority” – which here can be read as Mr Minack on the respondents’ concession:

It is a duty to ensure that reasonable steps are taken for the safety of the children, a duty the performance of which cannot be delegated.

…

There are strong reasons for saying that it is appropriate that a school authority comes under a duty to ensure that reasonable care is taken of pupils attending the school. … The immaturity and inexperience of the pupils and their propensity for mischief suggest that there should be a special responsibility on a school authority to care for their safety, one that goes beyond a mere vicarious liability for the acts and omissions of its servants.

130    Brennan J put it in the following terms at 279-280:

Though the primary duty, so far as it requires supervision of the pupils, will ordinarily fall to be discharged by the teachers at a school, a school authority’s liability for damage caused by a failure to provide supervision is founded on the school authority’s failure to discharge a duty which it assumed when the child was enrolled and which is sustained by the continued acceptance of the child as a pupil. Of course, a teacher may be under a like duty to the child, but the teacher’s duty is not determinative of the duty of the school authority.

The primary duty of care owed by a school authority extends to the provision of the staff and resources necessary to discharge the duty to the pupil which it undertakes by accepting him. That duty is no less than the duty of the schoolmaster, who is bound to take reasonable steps to protect the pupil against risks of injury which should reasonably have been foreseen.

(Footnotes omitted.)

131    Referring then to the “foreseeable folly of youthful exuberance”, in a passage that can, with the respondents’ concession, be equally applied to Mr Minack, Brennan J stated at 280:

The circumstances of the case required positive action to discharge the duty to take reasonable steps to protect the pupils from foreseeable risks of injury. The necessary steps were not taken, the duty resting on the Commonwealth as the school authority was breached and the plaintiff was injured. The fact that the necessary steps were not taken establishes the breach of the duty for which the Commonwealth is liable.

132    I consider these passages applicable to the Court’s assessment of the applicants’ negligence allegations, which are to be understood on the basis that it is the principal of BSC who owed each of the five applicants a non-delegable duty of care, the content of that duty being described in the passages I have extracted above. The more precise articulation of the content of that duty is a matter I return to below. Here, however, it should be emphasised that, as Brennan J observes in the passage above, if the positive steps required to discharge that duty were not taken, then the non-delegable duty owed by a principal in the position of Mr Minack is breached.

133    I accept, as the respondents submitted, there is then a separate assessment required of the causal link between any breach (failure to take positive steps) and the alleged injury, and that this causation aspect poses some challenges for the applicants in terms of how their case was framed and developed (or not developed).

134    In the negligence section of the applicants’ pleadings, there are two relevant pleadings; one which is consistent with the respondents’ concessions, and one which is problematic. The pleading at [377] is consistent with the respondents’ concessions:

The First Respondent is vicariously liable for the negligence of the Second, Third and Fourth Respondents.

135    The problematic negligence pleading, in terms of the authorities, and the Crown Proceedings Act, is the pleading at [375]:

The First Respondent owed each Applicant a non-delegable duty as pupils of the School to ensure that reasonable care was taken of them whilst they were at School during School hours. It was a duty to ensure that reasonable steps were taken for their safety, the performance of which could not be delegated.

136    That proposition is inconsistent with the Crown Proceedings Act, and the authorities to which I have referred. It is not the State that owes such a duty in Victoria. The applicants’ counsel did not attempt to work through the authorities in writing or orally. In reply this was the submission:

There’s one issue which I just have to fly through. In terms of the Minister and the duty of care, Mr Young has referred you to Richards [and] [Subramanian]. Now, the point is this: the ultimate authority for the school is the State of Victoria. There is the Crown Proceedings Act, but that’s about vicarious liability. The actual authority is the State of Victoria, and that’s clear on those cases.

HER HONOUR: But the pleading is vicarious liability.

MR BUTT: Well, we plead in negligence that there’s a non-delegable duty of care owed by the school authority. And the way it’s in the submission is the State.

HER HONOUR: You must accept that the school is not a person.

MR BUTT: A school is not a person. The State is the school. The State is the school because they’re the ultimate authority. The relevance of it is when I’m referring to those matters concerning the departmental officers, they are the school. They’re part of the school authority. And that’s relevant to either liability or aggravated or exemplary damages because the top of the school is not mister – he is subject to a non-delegable duty of care. But to the extent that departmental officers are doing things that are aggravating or negligent etcetera then it is liability. And the Minister is liable under the Racial Discrimination Act under section 6.

137    This submission cannot be accepted. Perhaps there are cases in NSW, or other jurisdictions, where identifying a “school authority” (depending on the legal character of the entity that operates a school) will be the appropriate course. However, this approach is not consistent with Victorian authorities. The position is as I have described it, and the Court proceeds on that basis. The correct position highlights the importance of a focus in the Court’s findings on the conduct of Mr Minack, and the impermissibility of the applicants’ broad allegations against “the school” or “BSC”.

138    To the extent there are references in overseas authorities, such as Bradford-Smart v West Sussex County Council [2002] EWCA Civ 07, on which the applicants relied, about a “school” owing a duty of care, they must be seen through the particular legal lens applicable in Victoria. Even in those cases, where specific propositions are being discussed, it is clear the duty is often expressed by reference to the duty of the “head teacher” and other teachers. Under Victorian law, that is the correct approach. And for the purposes of the applicants’ claim in this Court, it is Victorian law which is to be applied for the tort of negligence: Judiciary Act s 79; and see Rizeq v Western Australia [2017] HCA 23; 262 CLR 1 at [63], [96]–[97] (Bell, Gageler, Keane, Nettle and Gordon JJ); Masson v Parsons [2019] HCA 21; 266 CLR 554 at [30] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ); Gill v Ethicon Sàrl (No 5) [2019] FCA 1905 at [3610]-[3612], [4864].

139    Further, and deviating to the RDA for a moment, there was no authority cited to the Court for the proposition of that a Minister of the Crown in right of the State of Victoria is “liable” under the RDA because of the terms of s 6 of the RDA. Section 6 provides that the RDA binds the Crown “in all its capacities”. The purpose of this provision is to make clear the legislative intention that the Crown in right of the Commonwealth and the States (and their instrumentalities and agencies) were bound by the terms of the RDA and the prohibitions in that legislation could be applied to conduct engaged in by or on behalf of the Commonwealth and the States: see generally Bropho v Western Australia [1990] HCA 24; 171 CLR 1. For a recent example, see Fisher v Commonwealth of Australia [2023] FCAFC 106. For a Minister of the Crown to be “liable” (to use counsel’s description), an applicant would need to plead out conduct said to fall within (for example) s 9 of the RDA in which that Minister engaged. The same is true for departmental officers, referred to by counsel in the extract above. Those individuals would need to be respondents to the proceeding. None of that has occurred here. In this case, there are no allegations under the RDA made against the State of Victoria itself. It is not alleged, nor could it be on the facts, that the Crown in right of the State has done any “act” said to contravene s 9. Nor is there any pleaded allegation against any Minister of the Victorian Government in the statement of claim. No individual Ministers or departmental officials have been named as respondents. Some of the expansive submissions and assertions made by counsel for the applicants during final oral submissions find no grounding in the pleadings and need not be the subject of any further comment or findings.

140    Therefore, the Court proceeds on the basis articulated by the respondents, which I accept – that it is the principal of BSC who owed each of the applicants a duty to take reasonable care of the kind I have described above.

141    One consequence of this which was not adequately appreciated or explored by the applicants’ counsel, until briefly touched on in final submissions, was that Mr Minack was not principal of BSC during Liam’s time at the school. Ms Podbury was. Ms Podbury was a witness, but not a respondent. No pleaded allegations are made against her. This has real consequences for the prospects of success of Liam’s case, as I explain later in these reasons.

142    The circumstances of the applicants’ negligence case raise a number of difficult legal issues, and issues of legal principle, about the nature and scope of the non-delegable duty of care in a school setting, where the factual allegations said to give rise to the breaches of duty of care involve bullying and harassment by other students. There are at least three issues that should be identified before descending into the detail of each applicant’s case:

(a)    there is no single incident in focus (cf Introvigne), so that the questions of what is the appropriate content of such a duty in relation to bullying and harassment across a number of years is a challenging one;

(b)    where, as is generally the case with omissions or failures, the allegation is a failure to take steps to prevent bullying and harassment, the moving party will need to prove what steps were reasonable for (relevantly) a principal to take, and should have been taken, providing an evidentiary basis for that contention; and

(c)    a moving party will need to prove that the taking of the asserted reasonable steps would have been effective to prevent, or at least restrict or reduce, the bullying and harassment suffered by a student.

143    Frequently, as I explain in these reasons, the applicants’ forensic approach paid insufficient heed to these challenges. In part, I consider that can be explained by the unnecessarily broad and somewhat scattergun approach taken, and the plethora of criticisms levelled at an inappropriately wide range of people about what happened at BSC over the relevant period. The lack of discipline in what allegations were presented, and how they were developed, did not assist the applicants’ overall case. The proceeding had, at times, on the applicants’ side, the air of a Royal Commission or a political inquiry – which it was not.

144    Nevertheless, I have been assisted by the observations in two particular authorities on which the applicants relied, concerning the correct approach to allegations of failures to prevent harm to school students from bullying and harassment. The first is the Bradford-Smart decision, which, while dealing with the law as it stands in the United Kingdom, includes some matters of general principle and approach that should remain at the forefront of the Court’s consideration in this case. The first observation relates to the challenges faced by principals and teachers in relation to student behaviour. At [30], the Court of Appeal referred with approval to the statements of Lord Slynn in Phelps v Hillingdon London Borough Council [2000] 3 WLR 776 at 792:

The difficulties of the tasks involved and of the circumstances under which people have to work in this area must also be borne fully in mind. The professionalism, dedication and standards of those engaged in the provision of educational services are such that cases of liability for negligence will be exceptional. But though claims should not be encouraged and the courts should not find negligence too readily, the fact that some claims may be without foundation or exaggerated does not mean that valid claims should necessarily be excluded.

145    I respectfully agree with those observations.

146    Also in Bradford-Smart, the Court of Appeal made the following observations at [35]-[38], which are consistent with the three particular challenges for the applicants’ negligence cases that I have highlighted above:

The question is whether it was a breach of this school’s duty of care towards Leah to fail to take any action against the pupils she said were bullying her outside school. The usual factors are all relevant in determining what a reasonable school might be expected to do: the extent to which it was foreseeable that failure to do so would result in actual harm to the victim, the extent of the risk, the magnitude of the harm, and the practicability and likely effectiveness of any steps which might be taken. We also accept the point made by Mr Faulks QC, on behalf of the school, that the school’s duties arise because of its educational duties towards the child. Indeed those duties are also owed to all the other children in the school. Like any parent, the school will often be faced, in this or in any other context, with the problem of balancing one child’s interests with another’s. There will also be difficult questions of judgment as to how far the school should seek to step in where the parents or other agencies such as the police and social services have not done so. Above all, an ineffective intervention may in fact make matters much worse for the victim because she cannot be protected while she is out of school. It cannot be a breach of duty to fail to take steps which are unlikely to do much good. All of these considerations are also subject to the Bolam principle: if a reasonable body of professional opinion would not take such steps, then this school is not liable for failing to do so.

Hence, although we accept that a school may on occasions be in breach of duty for failing to take such steps as are within its power to combat harmful behaviour of one pupil towards another even when they are outside school, those occasions will be few and far between. Mr Watling agreed that there were differences of view as to how far to go. The experts did agree that where an incident between pupils outside school carried over into school a reasonable headteacher should investigate if it had a deleterious effect upon the victim. In this case there were no adverse effects upon Leah’s educational performance and development clearly attributable to what was going on. There was manifestly impressive evidence from Mrs Ashworth of the steps she did take to protect but not over-protect Leah. It is clear that a responsible body of professional opinion would have agreed that enough had been done. We thus conclude that the judge would have reached the same conclusion had he directed himself a little less restrictively upon the law.

We would add that in all these cases it is necessary to identify with some precision any breach of duty found. It is also important to consider whether the steps proposed would have been effective in preventing the bullying. It is not enough to find that there has been bullying, to find some breach of duty, and then to find that the bullying caused the injury. There must be a causal connection between the breach of duty and the injury. That will often be difficult to prove.

There is no magic in the term bullying. Any school has to have sensible disciplinary policies and procedures if it is to function properly as a school at all. It will no doubt take reasonable steps to prevent or deal with one-off acts of aggression between pupils and also recognise that persistent targeting of one pupil by others can cause lasting damage to the victim. In seeking to combat this it is always helpful to have working definitions such as those contained in the documentation we have seen. The problem is now well enough recognised for it to be reasonable to expect all schools to have policies and practices in place to meet it; indeed, this school developed just such a policy in ‘Working Together’. We agree that such policies are of little value unless they are also put into practice. But in order to hold the school liable towards a particular pupil, the question is always whether the school was in breach of its duty of care towards that pupil and whether that breach caused the particular harm which was suffered.

(Emphasis added.)

147    I respectfully agree with those observations as well.

148    The second authority is the single Judge and appellate decisions in Oyston v St Patrick’s College [2011] NSWSC 269; Oyston v St Patrick’s College [2013] NSWCA 135 and Oyston v St Patrick’s College (No 2) [2013] NSWCA 310.

149    In Oyston at [152] (Tobias AJA, Macfarlan and Barrett JJA agreeing), in terms of the content of the duty of care:

It is true, as the College submitted, that it was not required to ensure or guarantee that the appellant was not bullied. However, as her Honour recognised at [15] of her reasons, the College was obligated, in performing its duty of care towards the appellant, to take reasonable steps to ensure that the appellant was protected from bullying, including taking reasonable steps to ascertain the identity of the perpetrators and to take such action as was reasonable to prevent repetition by those persons of such conduct.

150    This description of the content of the duty of care is consistent with the earlier authorities to which I have referred, but is more precisely drawn in a manner that is of assistance in the present proceeding. I respectfully agree with the formulation expressed.

151    In terms of the steps that should be taken, Tobias AJA said at [154]:

In my view, the steps, such as they were, taken by Mrs Ibbett during 2004, did not provide a reasonable response to the not insignificant risk of harm to students such as the appellant if the bullying of them continued. In accordance with the College’s own policies, it was insufficient merely to request teachers to keep an eye out for bullying; once a complaint of bullying was received, it required investigation and, if substantiated, action against the perpetrator. So far as the appellant was concerned, the evidence established that she was regularly bullied by JP and LM and to a lesser extent, AM. Reasonable steps should have been taken by Mrs Ibbett to carefully investigate the appellant’s allegations and to act on them if she was satisfied that they were justified.

152    As to causation, in Oyston (No 2), Tobias AJA said at [15] (Macfarlan and Barrett JJA agreeing):

The appellant was required to prove that it was more probable than not that but for the failure of the College to deal with the students who were bullying her, she would not have suffered the psychological injury which was the subject of the medical evidence.

153    With respect, all of those statements of principle, and observations, are ones I apply to the determination of the applicants’ negligence claims in this proceeding.

154    At least in relation to one incident involving Liam and one (or possibly two) incidents involving Zack, the applicants contend there was a failure to take reasonable care to prevent what was on their case foreseeable intentional (and perhaps criminal) behaviour. There are some challenges apparent from recent authorities about the scope of liability for injuries arising from intentional or criminal conduct: see, for example, Prince Alfred College Inc v ADC [2016] HCA 37; 258 CLR 134; Lepore; DP v Bird [2021] VSC 850, affirmed by Bird v DP [2023] VSCA 66; 323 IR 174. There is also the issue of whether, if the Court finds there was a failure to take reasonable care on the part of any or all of the individual respondents or any other teacher, the respondents’ liability extends to conduct not on school premises, such as the assault by BSC students on Zack in a local park outside school hours (park incident). I return to these matters in my findings below.

THE CAUSES OF ACTION AND KEY ALLEGATIONS

Observations regarding the causes of action and key allegations

155    The applicants’ case was something of a movable feast throughout the trial, in terms of how it was put, what details were relied upon, and how arguments were advanced. In general, counsel for the applicants only provided more detail when pressed to do so. I accept the respondents were at some level of disadvantage in responding to the allegations because of this lack of clarity.

156    The applicants’ closing written submissions were difficult to follow. There was no clear identification of the arguments on the different causes of action. Factual propositions were somewhat randomly alleged and it was challenging to connect them with the case as pleaded, and as advanced in the applicants’ concise statement. It was difficult to follow entirely which factual propositions were said to go to which causes of action.

157    It is the applicants’ case as pleaded, and as advanced in the applicants’ concise statement, which is what the Court must decide upon, and what the respondents have been required to defend. These reasons are structured around those documents, as were the respondents’ responses. That said, some realistic latitude in how allegations are expressed needs to be given in factually complex discrimination cases, which, as I noted in Wotton at [117], tend to involve a cause of action relying heavily on inference. The respondents did not take an overly pedantic approach in this proceeding, which was appropriate.

158    The lack of clarity continued into final oral submissions, pitched as they were at a high level of generality and assertion. While I accept there is some place for generalities and broad assertions in any persuasive exercise, it is not the Court’s role to become a detective and search through the applicants’ factual allegations and the evidence said to support them, and itself try to connect those factual allegations with various cases of action, or various elements of causes of action.

159    Therefore, this description of the applicants’ case flows from the Court’s consideration of the pleadings and the concise statements, with their opening and closing submissions being read in that context.

160    A number of allegations made by the applicants must fail at the outset, for the reasons set out below.

161    There are five individual applicants. Some of the allegations made were common to all applicants and concerned more systemic acts. Broadly, these were allegations of contraventions of s 9 and s 18C of the RDA by some of the school-wide acts and omissions, which the applicants each experienced to different degrees, and which had different effects on each of them. Others allegations of contraventions of s 9 and s 18C of the RDA were specific to one or more individual applicants.

162    Counsel for the applicants accepted in closing oral submissions that each applicant had to prove the individual contraventions they alleged, although he stressed the evidence needs to be looked at holistically. That latter proposition can be accepted.

163    The structure of the pleadings is partly responsible for the challenges in understanding the case being put. The statement of claim commences with a long series of factual allegations about each individual applicant. For example for Liam, the factual allegations extend from [4]-[63] (excluding a few factual allegations in respect of non-applicant students from [42]-[51]). Sometimes, mixed up in these factual allegations are allegations such as at [36] (about Liam’s complaints):

Liam was consistently ignored in a racially discriminatory and negligent fashion.

164    The same process of allegations of fact is undertaken for each individual applicant, by school year. Generally however, the causes of action said to arise from these pleaded facts are grouped towards the end of the statement of claim, from [346] onwards.

165    Working from this structure, in order to describe the causes of action, and how they are alleged, it is this latter part of the statement of claim – read fairly, and read also with the applicants’ concise statement – that should be taken to set to the applicants’ case in this proceeding.

166    At a high level, three categories of allegations can be discerned, and each is addressed in turn below. These are:

(a)    allegations common to more than one of the applicants;

(b)    individual allegations; and

(c)    rolled up or generalised allegations.

Allegations common to more than one of the applicants

167    On the case pleaded by the applicants, there are four categories of common allegations:

(a)    the content of the speech, or speeches, delivered by Mr Minack to school assembly, or assemblies, at BSC;

(b)    the presence of, and failure to remove, swastika graffiti, and other antisemitic graffiti, at BSC;

(c)    the failure to provide adequate disciplinary consequences, adequate behaviour encouragement and adequate education to BSC students to make it clear that antisemitic behaviour was unacceptable and would not be tolerated; and

(d)    the way in which the text Maus was taught at BSC.

168    The common allegations appear to be put as alleged contraventions of s 9 and s 18C and as breaches of the duty of care owed to the applicants. Precisely who owed the applicants a duty of care is a matter I explore later in these reasons. For the moment, those matters can be put to one side as I attempt to describe the factual categories of the allegations.

169    Patterns of conduct form a key theme of the applicants’ cases on these common allegations. There are many factual allegations which are said to have amounted to a “tolerance of antisemitism” – see, for example, [60] of the applicants’ closing submissions:

In any event, from weeks into Matt’s Year 7, he was immediately confronted with Nazi salutes, Swastikas and Heil Hitlers in locker bays. 602:33. This was scary and concerning for a Jewish boy. 603:39. Teachers were present. 603:20-21. Matt discussed this with Mr Tran who did nothing. 603:26. It started as 2 or 3 times a week and escalated or normalized. During March-June 2017, Matt was physically assaulted unprovoked, spat at and subjected to random antisemitic slurs by several children of which the upper BSC echelon were aware. On 20 June, Ms Abadee wrote to Matt’s Coordinator referring to the growing problem of “antisemitic bullying” affecting “several children” and it needs to be “stopped immediately” and Matt is “scared to come to school”. Tab 236. Even Mr Minack conceded Matt encountered a clear safety concern for a year 7 entering BSC (1471:38). The Court should find that BSC’s conduct in dealing with Matt’s antisemitic bullying was inadequate under s9 RDA /negligent because: (1) Mr Minack conceded that by mid-2017 he should have taken educative and proactive measures to protect Jewish students including Matt which he did not do (1474:2-1476:13), the type of treatment BSC implemented for other minority students including LGBTQIA+ (2) Mr Minack also conceded that should have happened in 2018, which never did (1428:1-32). (3) See also S Paul and Prof Rutland on this, above [50]. (4) BSC’s records for antisemitic conduct were inadequate, as conceded, and its treatment inadequate where records existed. (5) Indeed by mid-2017 BSC, be it the Principal, Mr Mangold, or coordinators, there was clear written evidence of verbal (“Heil Hitler”, Santa/chimney taunt, “get in oven”) and physical antisemitic assaults to act on, which was not adequately done. Slater’s spitting and “fucking jew” incident, was in close succession to his prior abuse and should have been seriously addressed but was denied. Similarly the Lucas [redacted] investigation by all BSC actors downplayed and denied serious antisemitism concerned since (a) no investigation was done into Mr Tran or witness Ron Sidelman (Tab 250), (b) Ms Hower and Mr Hutchins should have suspended Lucas for “Heil Hitler” as admitted by each of Ms Hower (1253:39), Mr Minack (1472:26ff) and Mr Varney (Tab 799). (c) Lucas’s antisemitic pattern was not considered (e.g. chimney taunt (1253:27)) (d) Mr Mangold never stood up for Matt in the investigation and informed of antisemitic bullying as he should. He accepted perhaps he should have (2720:19-30). This downplaying and tolerance of antisemitic behavior was characteristic of the treatment BSC staff exhibited throughout the Period (and after), witnessed for example by Ms Lewis’s non-punishment of antisemitic displays, while punishing obviously less serious matters as admitted (2174). The tolerance of antisemitism was well exemplified by Ms Sentry’s mindset (2879:18-2880:10), coupled with Mr Minack’s, loyally supported by Mr Gargano. The phenomenon is explained by Prof Rutland, p29. Further whereas Ms Hower, Year 7 coordinator, had no idea what UJEB was (1242:11-30), she/BSC well supported the SSA.

(Original emphasis, footnotes omitted.)

170    There are also allegations by both Matt and Guy in relation to:

(a)    Ms Flessa;

(b)    Mr Varney; and

(c)    Mr Lyons.

171    Those allegations appear also to be put as alleged contraventions of s 9 and s 18C and as breaches of the duty of care owed to the applicants.

172    In terms of all the common allegations relating to the RDA, as I understood it, the applicants’ position is as follows:

(a)    the acts (or, more correctly, failures/omissions) were said to “involve” distinctions, exclusions or preferences because they were all acts (failures/omissions) that singled out Jewish students for different treatment from other students;

(b)    school staff were not enforcing behaviour rules only when it came to Jewish students and behaviour about Jewish people; the applicants submitted there was a repeated theme during the period of a “poisoned educational environment”, which is a phrase the applicants take from the Canadian decision of Ross v New Brunswick School District No 15 [1996] 1 SCR 825;

(c)    relying on Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission [1998] FCA 1650; (1998) 91 FCR 8, the applicants say they must only establish that the acts were “referable to” the applicants as Jewish people; and

(d)    the human rights nullified or impaired by the acts and omissions were said to be those I have set out above at [72] (at least in the pleadings).

Individual allegations

173    A significant number of allegations were made by individual applicants. Most of these allegations involve conduct by other BSC students, complaints the applicants contend they made about that conduct, and what the applicants contend was the inadequate response by the teachers or staff they (and/or their parents) complained to, and ultimately the inadequate response from the school leadership, in particular Mr Minack.

174    The individual allegations span a wide range of incidents, including the making of racist taunts and ‘jokes’, physical shoving and kicking, cyberbullying and physical assault. The applicants plead that these incidents were often reported to staff at BSC, or that BSC staff witnessed incidents. At times the pleadings specify to whom, and when, the applicants made complaints, but at other times these details are not specified. That is consistent with the evidence I heard from the applicants; namely, that on occasions they could clearly recall who they complained to, and on other occasions they could not recall.

175    In some instances, specific complaints regarding incidents were not pleaded – rather, the applicants at times made more general assertions that reports or complaints were made at various instances and over an extended period of time.

Rolled up or generalised allegations in the pleadings

176    At several points in the pleadings, the applicants make rolled up allegations which in my opinion should be struck out, and should not be the subject of any determination by the Court.

177    Over the respondents’ objections at times, the applicants were given considerable leeway in relation to their pleadings in the early stages of this proceeding, on the basis that, as a claim in the Court’s human rights jurisdiction, coming from the Australian Human Rights Commission, there should be a reasonable and flexible approach taken so that access to justice is facilitated and there is no chilling effect created about what can be challenging factual allegations to formulate. The Court took an approach that the real issues in dispute between the parties would be refined during the preparation for trial, and by way of documents such as concise statements. To some extent, this refinement occurred, but to some extent it did not. The applicants’ counsel fell back, time and time again, on generalised allegations. This was apparent in the submissions filed before trial, in the opening and in argument on many objections to evidence. The generalised nature of some of the allegations placed the respondents and the Court in an invidious position. In these aspects of the applicants’ case, no attempt was made to put forward further properly articulated allegations which were said to be incorporated into the generalised allegations. This position continued through final oral submissions.

178    It is not appropriate for the Court to consider and determine any allegations which remain at a generalised level. I explain below which allegations I consider fall into this category. To do so would involve a denial of procedural fairness to the respondents, and it would mean the Court has to engage in speculation about precisely what is covered by the allegations, a process which is wholly inappropriate in a long and resource-intensive trial.

179    Further, I consider that as far as these generalised allegations have been explained by counsel for the applicants in the course of submissions, they appear to duplicate many of the more specific allegations I have set out above. Where they seek impermissibly to go further is where they cast the net of principal liability for the alleged conduct more widely to individual teachers without any specific allegations of conduct being made, capture various Ministers or Ministerial staff, or cast liability on those who conducted the Worklogic inquiry, or seek to assert liability in entities which cannot in law be the subject of such liability let alone be capable of being identified as having engaged in any specific conduct, such as “the Department”. For all these reasons, the pleadings are embarrassing in the legal sense and should be struck out.

180    The following generalised allegations fall into this category.

Failure of all BSC staff to take action in response to complaints/notification of certain alleged bullying

181    As I have described above, at [366] of the statement of claim there are summary allegations against Mr Minack for contravention of s 9 of the RDA, in relation to each applicant individually. Those have been adequately particularised, and Mr Minack was a respondent to the proceeding, so there is no difficulty in the Court proceeding to determine those allegations.

182    Then there are further and problematic pleadings at [367]-[368] which roll up these allegations and extend them to all BSC staff. Those paragraphs allege:

The same failures apply in relation to all staff to whom reports/notification of the kind in the paragraph immediately above were made by the Applicants as pleaded (and to any other relevant staff including those whose failure was by omission).

The same failures apply in relation to all staff and principal that were aware of the verbal and physical bullying, racism or discrimination without having been notified.

183    The generality is perpetuated at [369(b)], where it is alleged:

By reason of the conduct referred to in paragraphs [366] - [369] above:

…

b.    Other relevant staff members at the School breached s 9(1) and 3(3) of the Act; and

c.    the First Respondent is vicariously liable for said breaches.

184    An allegation of this kind is embarrassing in the legal sense. It is “unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against [him or her]”: Meckiff v Simpson [1968] VR 62 at 70, cited in Australian Competition and Consumer Commission v NQCranes Pty Ltd [2021] FCA 1270 at [9]; Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803; 209 IR 263 at [18]-[19]. Despite the leniency extended to the applicants’ legal representatives, the flaws in these generalised allegations were not corrected before trial, nor in opening submissions. For the reasons I expressed earlier, this allegation must be confined to those staff members who have been specifically identified as having failed to take allegedly appropriate action, and who were given the opportunity to deal with the applicants’ fundamental contention that the staff members treated Jewish students differently in relation to antisemitic bullying. Similarly, where there are specific allegations about the existence of a duty of care against individual staff members that is different from the non-delegable duty that the State accepted was owed by Mr Minack as the principal of the school (see, for example, [390] of the statement of claim), these can be considered by the Court. However, the more generalised allegations of negligence cannot and should not be considered.

185    The allegations were given no more specificity in the applicants’ concise statement. For example, at [6], what is alleged is:

The SOC pleads a plethora of (1) complaints, and (2) incidents, of which staff were aware, involving all Applicants suffering anti-Jewish and anti-Israeli bullying/harassment and conduct at School, comprising activities of both staff and students which breached ss3(3), 9(1) and 18C of the Act, and breached the School’s policies (which existed from at least 2017), which were not actioned by staff adequately or at all. This ties in with the School’s negligence.

(Original emphasis, footnotes omitted.)

186    The width of the allegations against unnamed staff, and staff who were not named as respondents, is apparent. Further, this theme of the “School” being negligent is apparent in many parts of the concise statement. For example, at [13] and [14] where the “School” is alleged to owe the applicants a duty of care, and “the School” is alleged to have breached that duty and the allegations of failure are said to be those of “the School”. These allegations disclose no proper legal foundation. In final submissions, the applicants’ counsel was unwilling to face this reality, but it is the case.

187    Paragraphs [367] and [368], and [369(b)] and [369(c)], to the extent it relates to [369(b)], will be struck out.

Allegations concerning Corey Fooks

188    At [123]-[131] of the statement of claim are some allegations relating to complaints by a BSC student, Corey Fooks, about swastikas he said he had seen around the school grounds of BSC. As far as I can ascertain, there are no further pleadings which are connected to a cause of action in relation to Corey. For example, even with the “rolled up” pleadings, no connection is expressed with these paragraphs.

189    Corey was called as a witness for the applicants. His evidence was that he is a Jewish person. Consistently with the statement of claim, his evidence concerned the swastikas he had seen at BSC, as well as outside school grounds on a nearby street, and the complaints he had made about their presence.

190    Corey also gave some evidence about the level of comfort he had about being openly Jewish while at BSC, and about some antisemitic comments made to him by other students during class. He also gave some evidence about his attendance at UJEB lunches, his perception of the way staff at BSC approached LGBTQIA+ issues, and about his subsequent experiences at Swinburne as a Jewish person.

191    Corey is not an applicant. In my opinion, Corey’ evidence is relevant to some of the applicants’ common allegations, which I have set out above. There is no independent cause of action to be determined by the Court in relation to Corey. It is not appropriate to strike those paragraphs out, but they should not be subject to any separate determination of liability. At best, and generously to the applicants, they plead facts relevant to the common and individual allegations.

Allegations regarding Ashley Meehan

192    Paragraph [373] of the statement of claim contains an allegation about Ashley Meehan, a former BSC student. That allegation relates to Mr Minack telling Mr Meehan he could not keep his beard. At [72], the applicants plead:

During late 2016 (Year 10) to early 2017 (Year 11), a Jewish student at the School, Ashley Meehan, started growing facial hair in accordance with Jewish tradition and law.

Richard Minack pulled Ashley aside, including in front of other students, when he noticed Ashley was growing facial hair.

From the first instance of this, Ashley asserted to Mr Minack that he was not shaving for religious reasons. Mr Minack questioned the boy at length and dismissed the explanation Ashley gave him. Between Ashley’s late Year 10 up until early Year 11[], Mr Minack pulled Ashley aside and intimidated him about shaving on about half a dozen occasions. This usually occurred at lunchtime, roughly fortnightly, including in front of other students.

Mr Minack continued to pressure Ashley to shave his face and continued to question his motives and undermined his reason for not shaving. This intimidated Ashley and he began trying to avoid the Principal as a result. It caused Ashley to become panicky and anxious.

Mr Minack stopped bothering the boy in early-mid March 2017 after Ashley’s father Terry Meehan essentially told Mr Minack to leave Ashley alone and to stop interfering with his VCE studies and stop discriminating against him on religious grounds.

193    Mr Meehan was not called as a witness, so unlike Corey Fooks, there is no evidence which could at a minimum be considered in determining the applicants’ common allegations, nor in the context of what is alleged by the applicants to have been the “culture” at BSC.

194    Mr Meehan is not, but could have been, an applicant. The applicants have no standing to bring a complaint on his behalf. This is not a representative proceeding. These parts of the statement of claim should therefore be struck out. They could also be dismissed on the basis of standing. Accordingly, during the trial, evidence relating only to incidents concerning Mr Meehan, including complaints by his parents, were ruled inadmissible. Paragraph [373] will be struck out.

Allegations regarding Ms Flessa’s actions with respect to Ariel Katz

195    The applicants’ pleadings include allegations against Ms Flessa in 2017 about conduct they contend breached s 9(1) and s 18C of the RDA with respect to Ariel Katz. Ariel Katz was a Jewish student. He is not an applicant.

196    The applicants plead:

In 2017, Ms Demi Flessa taught an English as a Second Language class (ESL) for the Year which included in it a Jewish-Israeli student, Ariel Katz.

Ms Flessa knew Ariel Katz was a Jewish-Israeli.

Particulars

a.    The ESL class was a small class of about 6-8 students only.

b.    There were student introductions in the class wherein Ariel’s background was revealed to Ms Flessa as Israeli.

During that ESL class, on at least three separate occasions, Ms Flessa injected her personal anti-Israel opinions about the Israel/Palestine conflict onto Ariel that had nothing to do with the classes’ study on any occasion.

On all occasions when these comments were made in Ariel’s presence:

a.    they were offensive to Jewish Israelis and resulted in insult and humiliation in front of the class.

b.    on all occasions, thus, including the first and second occasions, Ariel conveyed his disagreement and disapproval of the situation (resulting in argument ensuing) and he was cut off by Ms Flessa in front of the class on each occasion.

After the first occasion it was manifest that Ariel had taken offence to Ms Flessa’s acts (which also were entirely unrelated to class discussion).

Despite that, Ms Flessa persisted to impose her opinions on Ariel in the face of rejection and offence taken by Ariel, asserting that

a.    Israel is an “illegitimate” or “illegal” state,

b.    that Israel is in fact “Palestine”,

c.    that Ariel was “Palestinian,” and that

d.    Palestinians have a right to Israel as a whole.

Ariel was not comfortable to, and did not, raise these matters with his coordinators, as he felt they would do nothing except get Ms Flessa angry and that this would lower his grade or cause revenge.

197    Ariel gave evidence remotely from Canada. He is Jewish. He was a student at BSC in was a student for grade 7 and the first third of grade 8, in 2017 and 2018. He described himself as a good friend of Matt’s. There was evidence that in quite a few of the alleged acts of discrimination in this proceeding involving Matt, Ariel was also present.

198    The respondents sought, and the Court made, a direction under s 136 of the Evidence Act in respect of Ariel’s evidence about some of Ms Flessa’s alleged comments concerning Israel and Palestine, on the basis that the evidence was only relevant as tendency evidence, allegedly probative of the events in 2018 involving Ms Flessa and Matt and Guy. The Court ruled that the evidence was relevant to the applicants’ allegations about a culture at BSC that tolerated and did not discourage antisemitic behaviour. Counsel for the applicants did not contend the evidence was relevant because there were independent or separate allegations of contraventions of the RDA, or negligence, to be determined in relation to Ariel.

199    Nor, reasonably, could counsel have so contended. Like Mr Meehan, Ariel is not an applicant. The applicants have no standing to raise alleged contraventions of the RDA in respect of Ariel, nor to make allegations of breach of any duty of care owed to him.

200    Therefore, insofar as [116]-[122] of the statement of claim might be understood as involving separate allegations of liability of any of the respondents in relation to conduct involving Ariel, those allegations are struck out. Insofar as the facts alleged in those paragraphs are supported by Ariel’s evidence or the evidence of other witnesses, and are relevant either to the applicants’ common allegations, or to individual allegations, the Court will examine the facts alleged in those two contexts. Insofar as Ariel’s evidence may be said to reveal some tendency on the part of Ms Flessa to make pejorative remarks about Israel, or goad students about the topic of Palestine, and so be probative of the 2017 allegations on this topic, as I explain later in these reasons, I do not consider the applicants have proven these allegations, even with the addition of Ariel’s evidence, and a tendency use in any event is impermissible in these circumstances. Those paragraphs will be struck out.

THE RESPONDENTS’ DEFENCE

201    It is not necessary to set out the defence in detail. The only reason I have spent time on the applicants’ allegations is because they were somewhat difficult to untangle. In summary, the respondents either deny the allegations of fact, or where they admit that some events occurred (such as the March 2019 speech by Mr Minack) they deny the pleaded effect of the events. It is fair to say the respondents join issue on the majority of factual allegations made by the applicants, and join issue on all of the pleaded effects of those factual allegations.

202    On the negligence allegations, the respondents admit Mr Minack owed students at BSC, including the applicants, “a non-delegable duty to take reasonable care for their safety and wellbeing whilst they were students at the School”. The respondents expressly deny the scope of the duty of care alleged by Zack – this pleading is, as I understand it, aimed at a denial of any liability in negligence for the park incident.

203    Properly, the respondents admit that if Mr Minack or any of the individual teachers are liable in negligence to the applicants for any of the pleaded conduct, the State of Victoria is vicariously liable for that conduct under the Crown Proceedings Act, as I explain earlier in these reasons. As I understand their submissions, the respondents accept that the State may be liable under s 18A of the RDA for any contraventions of s 9 or s 18C found to have occurred. In any event, the respondents made no positive submission that s 18A was not engaged if the Court were to uphold any of the applicants’ RDA complaints against the three individual respondents. There is also no pleaded reliance on the terms of s 18A(2) of the RDA.

204    Therefore, I proceed on the basis that the State accepts vicarious liability in negligence, in the way I have described, and vicarious liability under s 18A of the RDA for any contraventions of s 9 or s 18C by any of the three individual respondents.

205    The respondents described this a “document heavy case” because their overall response was that if incidents were not documented, the Court should find it is more likely than not that they did not occur. This led to the respondents suggesting to Liam that he was not bullied or harassed because he was Jewish and only conceding that on some minor occasions he may have been bullied for a non-racist reason. It led to the respondents rejecting as fabricated any narrative from Joel, Matt, Guy and Zack that was not documented in BSC records. It led to the respondents rejecting any contention about the number of swastikas at BSC unless there was a record of a complaint or record of observation of them. That is despite Mr Minack accepting that the staff responsible for cleaning graffiti (including swastikas) kept no records of the graffiti they removed.

206    The applicants’ case was that they all complained regularly, and nothing was done, or inadequate steps were taken.

207    To the extent that I have accepted some of the applicants’ allegations, that acceptance involves a rejection of the respondents’ ‘documents case’. In turn that means that a considerable number of the respondents’ submissions that were built upon their documents case also cannot be accepted: for example, that Mr Minack, the leadership cohort and the teachers acted adequately on every complaint that was made and therefore there could be no contravention of the RDA nor any negligence.

208    Accordingly, the divergence in the parties’ cases from the outset, and my findings, means that the respondents did not have an alternative answer to much of the narrative put by the applicants.

RESOLUTION: GENERAL ISSUES TO BE RESOLVED

209    In order to keep these reasons as accessible as possible, I do not propose to set out the parties’ various and voluminous oral and written submissions. The nature of the applicants’ case made for a challenging task on each side in making submissions. I have carefully considered the written and oral submissions of the parties, and where appropriate I refer to them throughout this section. The fact I do not refer to a particular submission does not mean I have not taken it into account; rather, some discretion needed to be exercised in what on any view will be a lengthy set of reasons. The same is true of the evidence – I have taken care to look at all the evidence, but in these reasons I refer either to examples to support particular findings of fact, or to what I consider to be the most probative evidence, rather than every single conceivable evidence reference for every factual finding.

The applicants’ final submissions

210    The applicants’ final written and oral submissions posed some challenges for the Court, and for the respondents. One matter which should be specifically noted is the tendency in counsels’ submissions to describe evidence from a respondent witness as a “concession”, when in fact it was not. As an example, at [42(g)] of their written closing submissions, the applicants submit that “[s]imultaneously, BSC leadership conceded: (1) Liam ‘no doubt experienced antisemitic bullying at BSC’”. This cites, among other things, the following evidence of Ms Podbury. However, in her evidence Ms Podbury only made that ‘concession’ after puttage by the applicants’ counsel:

Yes. So this is a fairly serious report, isn’t it?---It’s a – it’s a report. I – I – I don’t – I can’t see the whole context, so I can’t really comment.

Sure. But the vice principal is involved, and if I put to you that Liam has mentioned Rory’s name and other boys’ names, numerous times, to Ms Gibson, you would see – you would agree there’s a pattern ..... I can show you them, but, at a basic level, you can see he’s reporting this. You would agree that he’s reporting this to his counsellor, and he would be vulnerable, wouldn’t he, at this point as a religious Jewish kid?---There’s no doubt.

211    This tendency occurred quite frequently, and generally arose when a respondent witness had been asked to assume a fact or factual proposition and then was asked a further question on the basis of that assumption. In final submissions, the answer tended to be used as a concession of fact when of course it was not, because the witness had been asked to assume the fact, and generally then asked to express an opinion on the basis of the fact (for example, whether an assumed event or incident was a contravention of BSC policies). While asking a witness to assume a fact and then asking further question might sometimes yield evidence with some probative value if the fact assumed is proven, the way this technique was used by the applicants’ counsel generally did not yield evidence of much probative value. In my fact-finding I have given little weight to such so-called “concessions”.

Standard of proof

212    In Wotton at [112]-[114], I set out s 140 of the Evidence Act and the authorities which make it clear that no third standard of proof is created. I observed at [114] that:

the applicants’ allegations against the respondents can be described as “serious”. To allege that individuals performing public functions and exercising public powers did so on the basis of race is to make an allegation that reflects poorly upon those individuals.

213    The same is true here of the individual respondents in particular. The applicants make serious allegations against them. I wondered at times during the trial whether the seriousness of what was being alleged, especially in relation to the classroom teaching about Israel and Palestine, was entirely appreciated by the applicants and their legal representatives.

214    In determining what matters of fact I am satisfied about on the balance of probabilities, I have borne in mind the factors set out in s 140(2). Those factors are not exhaustive, and I have not confined myself to considering those factors. I have also reminded myself that each of the individual respondents remains employed as a teacher and that there are reputational and professional considerations which may flow from the findings of this Court. In relation to Mr Minack, I have borne in mind that he remained the principal of BSC at the time of trial, and that his professional and personal reputation has been very much placed in issue by the applicants’ allegations. I have been mindful, in making the findings that I have, of the possible consequences for Mr Minack of my findings. I have therefore sought to ensure I have an appropriate level of satisfaction about the findings of fact I make relating to his conduct.

215    Finally, it is of some relevance in this proceeding to recall the observations of Branson J in Qantas Airways Ltd v Gama [2008] FCAFC 69; 167 FCR 537 at [138], that the “the inherent unlikelihood of an occurrence of a given description” (citing Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at 362) is a consideration which may affect the answer to the question whether an issue has been proven to the reasonable satisfaction of the Court. That particular factor has some relevance to the applicants’ allegations about the classroom conduct of Mr Varney, Ms Flessa and Mr Lyons.

216    This is not a proceeding where the allegations I have found proven concern “inexact proofs, indefinite testimony, or indirect inferences”, in the sense those phrases are used in Briginshaw at 362. The respondents made many submissions about the imprecision in the applicants’ allegations, and I have agreed with some of them. However, on the allegations I have found proven, some level of imprecision is inherent in the nature of the allegations and the time that has elapsed since the events occurred. As I explain in my findings, this is more a proceeding where there was a competition of recollections – between the applicants and the student witnesses on the one hand, and the respondents’ documents and witnesses on the other. The applicants’ case drew a lot of support from the documentary evidence as well – both in terms of what was in the BSC records, and what was not. In a trial by oral evidence, it is open to a Court, having considered all the evidence (both oral and documentary), to prefer and believe, and be sufficiently persuaded by, oral testimony, even if that testimony is not perfect, and at times generalised. If the Court approaches its fact-finding bearing in mind the principles I have outlined above, as the finder of fact a Court is able to prefer oral evidence where it considers that evidence is given from genuine and reliable recollection.

The use of certain aspects of the evidence

217    The Court encouraged the parties to exercise some discipline over the tender of documents, by allowing them to agree on a final version of the court book to be tendered shortly before the commencement of final submissions.

218    Nevertheless, the applicants’ counsel persisted in the tender of voluminous documentation, which was then not referred to. The Court was not addressed on how it should use many of the documents. Indeed, many were not referred to at all in written or closing submissions.

219    As I have observed elsewhere, the Court’s role is not that of a detective, or an investigator, combing through documents to find material that might be seen as supporting the case of one party or another. In an adversarial system, where both parties are fully represented by counsel and solicitors, as here, it is the responsibilities of the legal representatives of the parties to draw the Court’s attention to the aspects of the evidence which they contend support their respective cases. Where a party has not referred the Court to a document in evidence, in general I have not placed any real weight on it, unless its forensic value was clear on its face, and unlikely to have been affected by submissions or further witness evidence. There are very few documents in this category.

220    A good example is some of the attachments to the Worklogic inquiry. One attachment is a statement from the then Deputy Premier of Victoria, and then Minister for Education, James Merlino, announcing the completion of the inquiry and the publication of the report. There are passages in that statement which might be said to support aspects of the applicants’ case. However, the forensic value of such a document is limited, when Mr Merlino was not called, and the way the applicants’ allegations are put in this proceeding were not put to him. At best, a public statement like that is a recognition, as Mr Merlino himself says, that:

The inquiry into reported incidents of antisemitic abuse has shown that the schools’ responses to reports of antisemitism fell short of community expectations.

221    An admission of that nature, even if it be described as such, does not go very far towards proving the applicants’ allegations in this proceeding.

222    I turn now to consider and make findings about the evidence of four important witnesses: Professor Rutland, Dr Abramovich, Mr Paul and Mr Minack. My findings in these sections about their evidence inform many of my subsequent findings and conclusions on the common and individual allegations.

Professor Rutland’s evidence

223    Professor Rutland gave evidence remotely from Israel. I did not find that method detracted from her evidence in any way.

224    Generally, I found Professor Rutland’s evidence helpful and persuasive. I was especially persuaded by her evidence, and the source studies, about the studies of antisemitic bullying in Australia. Her opinions resonated closely with the evidence of the applicants and the student witnesses.

225    At times Professor Rutland appeared somewhat over-zealous, although as her evidence developed I consider she adopted a more measured and objective approach, and I put that initial over-zealous tone to a combination of some unease at giving evidence remotely combined with her obvious passion for her subject matter.

226    In cross-examination, Professor Rutland was tested about how much of her opinions depended on the applicants’ accounts being accepted as true. Since generally I have accepted those accounts to some extent, this cross-examination is no longer material. However, I note two aspects of Professor Rutland’s answers which indicated that the assumptions of the truth of the accounts put forward by applicant witnesses were not all she relied upon. First, she emphasised she relied upon her years of research and knowledge looking at the reactions of teachers and students. I accept that the research and studies she has carried out informed the opinions she expressed about how teachers should and should not behave in circumstances where there are allegations of racially-motivated bullying and harassment, especially antisemitic bullying and harassment. And as she pointed out, there was “enough” evidence from the teachers themselves to show they were aware there was a problem. I accept that opinion and agree with it. Even on the respondents’ evidence (which in my opinion revealed only part of the true picture), there was a problem of some proportions, of which Mr Minack, the leadership cohort and BSC teachers were aware.

227    Professor Rutland emphasised that her research had shown that denial was a common reaction to allegations of antisemitic bullying and harassment, and I accept her opinion that there was an aspect of denial and minimisation in the reactions of Mr Minack, the leadership cohort and BSC teachers.

228    There were aspects of her report which were not developed at all on behalf of the applicants (such as “ecological mapping” and the wider effects of antisemitic bullying) and, accordingly, I have not placed any real weight on those aspects of her report. There were also a number of aspects of her report in which she expressed opinions based on material that was not tendered in evidence, or material ruled inadmissible. An example is the material from the McIntosh family, none of whom were called as witnesses in the proceeding and some of whose correspondence was ruled inadmissible. I have disregarded those parts of Professor Rutland’s report based on inadmissible material.

229    Professor Rutland displayed a good knowledge of the factual source material she was briefed with, and she was able to justify the observations and opinions she expressed by reference to that source material. Professor Rutland spent quite a lot of her report expressing her conclusions on the applicants’ factual allegations. However, I have not relied upon or adopted any of her conclusions on factual matters to any greater extent than I express in my reasons. I have made my own findings on the applicants’ factual allegations independently of Professor Rutland’s opinions.

230    There was no challenge to Professor Rutland’s qualifications and expertise. She has qualifications and long experience as a school teacher, before moving into tertiary and adult education, and then into research into educational theory and practice in the field of Jewish education, as well as continuing research into Australian Jewish history. She became Chair of the Department of Semitic Studies at the University of Sydney in 1999. A strong focus of her research in Australian Jewry has been the issues of migration, multiculturalism and ethnicity, and since the early 2000s issues relating to sociology and multiculturalism in Australia, after she was jointly awarded an ARC/Linkage grant in 2004. Professor Rutland describes the development of her work into the area of antisemitism in schools in the following way:

Based on this background research, I have published a number of key articles dealing with issues relating to antisemitism and religious bullying in the playground. I have undertaken research relating to Muslims and Jews in Australia and my article ‘Creating effective Holocaust education programmes for government schools with large Muslim populations in Sydney’ was published in a special issue dealing with Holocaust education in the UNESCO journal, Prospects: Quarterly Review of Comparative Education. One reviewer commented on this article as follows: ‘This subject area is most relevant to the field of comparative and international education. The fact that the practice of Holocaust education is under-researched worldwide makes this empirical contribution even more vital. It has potential to make a direct impact on policy and practice in Australia and elsewhere in the world’. This research was extended with the publication of a chapter, ‘Genocide or Holocaust Education: Exploring Different Australian Approaches for Muslim School Children’, in Gross, Zehavit and Stevick, E. Doyle (eds), As the Witnesses Fall Silent: 21st Century Holocaust Education in Curriculum, Policy and Practice, Geneva: Springer, 2015, pp.225-243.

231    It was through this work that she wrote, as joint author with Professor Zehavit Gross from Bar Ilan University in Israel, an article entitled ‘Combatting Antisemitism in the School Playground: An Australian Case Study’, Patterns of Prejudice, London: Taylor & Francis Online, vol 48, no 3, 2014, pp 309-330. That article was tendered in evidence in this proceeding. Professors Rutland and Gross have gone on to present their work in many different places. Professor Rutland also described some work that was forthcoming at the time of trial concerning Holocaust education in Australia and a history of antisemitism in Australia.

232    Professor Rutland was briefed with 84 outlines of evidence filed in this proceeding by the parties. While the trial was conducted by oral evidence, the respondents had an opportunity to put to her any material differences between the information she considered and the oral evidence to the point of trial. Neither in cross-examination of Professor Rutland nor in final submissions did the respondents suggest that Professor Rutland’s opinions were based on facts not adduced in evidence, or facts that diverged from the evidence adduced.

233    Of course, some of Professor Rutland’s opinions were based on evidence that I have not accepted. This is especially so in relation to Matt and Guy’s allegations against Ms Flessa and Mr Lyons, and some of the allegations against Mr Varney. Since I have made different findings of fact on these allegations, I do not consider Professor Rutland’s opinions in relation to those incidents. Rather, I focus on her opinions on the matters I have found proven by the applicants, as well as some of her more general opinions on the issues in this proceeding. Her more general opinions are relevant to the question of damages and compensation. They are also relevant to:

(a)    the nature and content of antisemitic conduct in Australian schools as presented in her research, which resonates closely with the evidence of the applicants and student witnesses;

(b)    an understanding of the gravity of the student perpetrators’ conduct and the size of the problem at BSC;

(c)    the phenomenon of Jewish student victims not complaining; and

(d)    the nature of steps that should be taken by BSC school authorities.

234    In cross-examination, Professor Rutland explained that antisemitic bullying has its own characteristics, and cannot be addressed only from the same perspective as more general student bullying. I accept that opinion. The evidence in this case demonstrated a number of particular characteristics, both in terms of the nature and content of the bullying and harassment, and the vulnerability of the students who were victims of it.

Nature and content of antisemitic conduct in Australian schools

235    Professor Rutland observes that all the applicants are male, and notes that research has demonstrated that antisemitic bullying and vilification is much more common in boys of co-educational schools than in girls-only schools. She cites another opinion with which she agrees, that the gender of the students appears to be an important determinant in whether antisemitism and/or racism is likely to appear in the classroom or not.

236    The evidence in this case certainly bears out those opinions. Aside from the fact all of the applicants are male, the evidence I have accepted indicates that almost all of the student perpetrators were male, and the main student perpetrators were all male. The student conflict and altercations as revealed by the evidence I have accepted is almost entirely between male students. The BSC records disclose no consciousness of this factor, or of the need – in my opinion an obvious need – to particularly address the drivers of behaviour of and between male students in this respect.

237    Professor Rutland describes one of the “classical” stereotypes that have driven antisemitism in Australia:

the image of the Jews being greedy and only thinking about money[.]

238    She refers to early publications as setting this stereotype:

This was particularly the case with The Bulletin, a weekly founded in 1880 to espouse Australian nationalism, and whose masthead read ‘Australia for the White Man’ until 1960. From its foundation, The Bulletin featured cartoons depicting the traditional Jewish stereotype, with hooked nose and foreign accent, motivated by greed and a desire to control the world. One of these antisemitic cartoons featured a non-Jewish boy wanting to fight a Jewish boy, who refused to move because he had his foot on a coin (see Figure 1). This relates to the ‘coin story’, which has been passed down from generation to generation and which we found was the most common manifestation of playground antisemitism.

(Footnotes omitted.)

239    As Professor Rutland observes, this was one of the common taunts used at BSC. I agree.

240    Another common insult to which Professor Rutland refers is the use of the word “Jew” coupled with a derogatory term, such as “fucking Jew”, “Jewish shit”, as well as simply “Jew”, the latter term of course being a gross form of categorising a person by reference only to race. Professor Rutland observes, and I agree, that this was another regular form of insult used at BSC, both towards the applicants and towards other Jewish students.

241    Next are the kinds of racially-motivated slurs and conduct that invoke Nazi symbols. As Professor Rutland explains, this is most obvious in the use of the swastika graffiti, but also the use of the words “Heil Hitler” and the use or depiction of the Nazi salute. Again, the evidence I have accepted is littered with examples of this form of abuse.

242    Next, and in my opinion, most acutely disgraceful and hurtful, are what Professor Rutland describes as the “Holocaust taunts”. She explains how students may learn these from older students, or from social media. She expanded upon her opinions about the use of social media in cross-examination, and I accept her opinions that the rise of social media has contributed to the increase in Holocaust taunts. I add to this, that students may learn these from what they are taught at school, as the evidence in this proceeding about the teaching of Maus demonstrates. Professor Rutland explains:

Such taunts are particularly hurtful and insulting to children whose grandparents survived the Holocaust. Given the high proportion of Holocaust survivors and their descendants in Melbourne, this is particularly relevant for Jewish children in government schools in Melbourne and is specifically relevant for Brighton Secondary College and some of the specific applicants in this case, including the Kaplans.

243    In my opinion it is a fair inference to draw from the evidence the Court heard that no Jewish student at BSC during the relevant period was, in a family and community sense, very far removed at all from the intergenerational trauma associated with the Holocaust. It was, and remains, the lived experience of their families, whether immediate or extended, and of their communities. For example, Matt’s evidence was:

And you mentioned, I think, a bit about your background. So what is your background? Where does your family originate from?---So my grandmother on my dad’s side is Russian. She was in the Red Army as a nurse and then my grandfather on my dad’s side had family in Poland. He was one of five brothers and all five of his brothers – all four of his brothers, sorry, were murdered in Poland. And he escaped Poland and fled. I believe he fled to Russia, then to Israel. I’m not really sure. No one is really sure on how that went. And then later in the late 90s before he died, he went back to Poland to make sure that his brothers weren’t there. So he went to search for them to make sure that before he died, they weren’t there and that his family weren’t there. And they weren’t, so he went back to Israel. He visited his old house and they – to get some closure and they went back to Israel and he passed away in the early 2000s.

244    The evidence in this proceeding about Holocaust taunts was of an extreme nature. This category of taunts and insults should have evoked high levels of disgust and, frankly, outrage in Mr Minack, the leadership cohort and BSC teachers. I accept all the teachers had been prepared to give evidence by the respondents’ lawyers and were likely to have had some of the specific taunts put to them during this process, and during the Worklogic inquiry. Nevertheless, I found their reactions muted, mostly devoid of outrage and somewhat resigned to the content of what was being put to them. It struck me as odd, and surprising, that even by the time of trial, Mr Minack, his leadership cohort and BSC teachers still could not join in expressing but the mildest condemnation of the antisemitic student behaviour and did not appear at all shocked about it.

245    For example, Mr Hutchins’ evidence was as follows:

And you would agree that the chimney taunt is hardly a joke to a Jewish student?---I – I think I said yesterday that it would be offensive, yes, I agree that it’s offensive.

It’s not a joke?---Well, I don’t find it funny personally, but that wasn’t my words, “the joke”. They were yours.

You wouldn’t describe it as a joke?---No, I don’t think it’s funny, so no. If it’s not funny, it’s not a joke.

246    While Mr Hutchins properly recognised the inappropriateness of using the word ‘joke’ to describe these taunts, and while he was correct to point out that the applicants’ counsel used the word (as did all of the applicants’ counsel, in my view often inappropriately), my impression of his evidence when speaking about these matters was the impression I had from most of the BSC teachers. They were not especially moved. They were not outraged. They were not horrified. That is because, I infer, they had heard these Holocaust taunts and insults at BSC on a regular basis. Further, there had been no leadership at BSC during the relevant period to encourage teachers to be outraged by this kind of student behaviour, to focus on the fact it was unlawful and not only inappropriate, and to focus on the fact of how hurtful and extreme this kind of abuse is for Jewish students who have, in their close or extended families, Holocaust victims.

247    Some teacher witnesses almost sounded like apologists for the antisemitic student behaviour. Ms Goldstone said:

It doesn’t – it doesn’t sound unbelievable, and I think a lot of young people, perhaps when they make jokes like that, maybe don’t fully understand the implications of – and the seriousness of that.

248    That may well be the case, in the initial instances of such behaviour. However, it is the role of teachers, the leadership cohort and the principal to swiftly and clearly address the understanding of students, so that they do appreciate why nothing about this behaviour is a “joke”, and why it is of the most serious nature, carrying as it does, images and memories of the extreme and horrific suffering of the Jewish people during the Holocaust.

249    Professor Rutland also discussed the vulnerability of Jewish students who openly displayed their Jewish identity, usually through religious clothing. She points out that male students are especially vulnerable because traditionally there are not the same outwards signs of Jewish identity for female students. The evidence is replete with examples of two of the applicants in particular being bullied because of the outwards signs of their Jewish identity they displayed: namely, Liam and Joel.

Gravity of the student perpetrators’ conduct and the size of the problem at BSC

250    Professor Rutland observed that Melbourne received the highest percentage of Jewish Holocaust survivors on a pro rata population basis after Israel – 60% of Jewish Holocaust survivors migrating to Australia settled in Melbourne. She also observed that the geographic location of BSC is in a part of Melbourne with a significant cohort of the population who identify as Jewish. That was apparent from the evidence of the applicants and their families as well, including the relatively close location of Jewish schools as alternatives for Jewish students.

251    The connection – in some but by no means all cases – of a person’s Jewish identity to their religious belief was something noted by Professor Rutland. Irrespective of whether there was such a connection (and she noted that for a person like Matt, who was non-religious, there was no such connection), the overarching feature emphasised by Professor Rutland, and which I accept, is that being Jewish can be a critical part of the identity of a young person and their sense of self. I accept that opinion and it is consistent with the evidence before the Court. While the Court also heard from some BSC students who identified less strongly as Jewish, such as Bella Saffer who stated she was ethnically half-Jewish and half-English but identified ethnically as “[j]ust English – Australian”, or Zac Kaplan who identified as “Jewish atheist”, the key point is that for each of the applicants, being Jewish was an important part of their identity and their sense of self. When that was attacked, ridiculed and belittled by the antisemitic bullying, their sense of themselves was diminished, and they became fearful of showing to their school community who they were.

252    Professor Rutland also explained the gravity of the symbol of the swastika for Jewish people, as a symbol of evil.

Phenomenon of Jewish student victims not complaining

253    Professor Rutland explained the effects of antisemitic bullying in the following way in her report:

the slurs and taunts discussed above contributed to their feeling that they were not accepted by their peers or supported by the teaching staff at BSC. Such religious and ethnic bullying significantly undermines the sense of a belonging for the Jewish at the School.

254    She expressed agreement with research that demonstrates that a:

[‘]sense of belonging has shown to be an important schooling outcome, and for some students, is indicative of educational success and long-term health and well-being’. The report explains that this is because of the centrality of schooling in a child’s life so that peer acceptance and having a strong sense of being part of the school community contribute to the development of self-esteem and motivation.

(Footnotes omitted.)

255    She expresses the opinion that this was not the case for Jewish students at BSC. Insofar as the applicants are concerned (I limit my findings that way, although there was persuasive evidence supporting a wider proposition), I agree. I also accept her opinion that teachers have an important role in helping students to feel part of a school community, by developing good relationships with their students. In this proceeding, many teachers testified to believing they had a good relationship with one or more of the applicants. In many cases, one or more of the applicants agreed that was the case, and sometimes they explained that is why they complained to a particular teacher about the antisemitic bullying. My findings later in these reasons indicate that those complaints were not taken as seriously as they should have been. I accept Professor Rutland’s opinion that such an outcome can lead to students such as the applicants feeling “undervalued by the fact that their reports of antisemitic bullying were not taken seriously or followed up”.

256    Professor Rutland’s opinion is that the:

pattern of Jewish students’ underreporting of playground antisemitism is very common[.]

257     Her own research found that non-reporting of antisemitic incidences in schools:

is very common, and indeed was the majority response.

258    She explained that this outcome was also found in a study in Canberra, when the:

problem of antisemitic bullying was only revealed through a chance comment by one student during the Sunday School classes at the Canberra Jewish Centre, leading to the teacher asking more questions.

259    That is despite a follow up study finding that:

antisemitic bullying was a problem in both government and private schools, but the students were reluctant to report such incidences.

260    I accept those opinions. Professor Rutland maintained them in her oral evidence. They are also consistent with the findings of fact I have made in this proceeding, in particular the ‘complaint fatigue’ (my expression) experienced by all of the applicants, as well as the fear expressed by some of them, especially Zack in his early years, of the consequences for their own safety if they were to complain – fears that in Zack’s case proved well-founded. In cross-examination, Professor Rutland made the point, which I accept, that the fear of being targeted for reporting is greater when the bullying is of students being targeted for an attribute they share – here, being Jewish. The point she was making, as I understood it, was that the student victims became identifiable as Jewish and so more visible as targets. That is, as a group Jewish students could be labelled as difficult, complainers, or too sensitive. In that sense, the perpetrators’ conduct tends to become more orchestrated than individual bullying. In turn, the fear of retaliation was likely to be more well-founded. I consider that is precisely what was happening at BSC.