Content warning: this article contains mentions of antisemitic bullying and harassment

In Kaplan v State of Victoria (No 8) [2023] FCA 1092, the Federal Court of Australia found the State of Victoria (State) vicariously liable for a school principal's failure to adequately respond to antisemitic bullying at a State school from 2015 to 2020.

Five former students of Brighton Secondary College brought an action against the State, the principal at the time, Richard Minack, and two teachers, Paul Varney and Demi Flessa, for breaches of sections 9 and 18(c) of the Racial Discrimination Act 1975 (Cth) (RDA) and in negligence.

Racism and antisemitism were firmly entrenched in the school during the relevant period. The case was largely an 'omissions' or 'failures' case comprised of three main categories: failure to remove antisemitic graffiti, failure to discipline student perpetrators, and failure to educate students as a cohort. The applicants alleged that they were subjected to antisemitic bullying and harassment (including physical bullying, verbal taunts and offensive graffiti) by other students and teachers and, unlike other minority students, no or no adequate steps were taken by the principal and staff to address the issue. It was also alleged that the school principal made remarks during speeches that were offensive. All the applicants, except one, left the school prematurely due to fears for their safety.

The trial comprised approximately eight weeks of hearing, over 60 lay witnesses (including former students, parents, current and former principals, assistant principals, teaching staff, chaplains and wellbeing staff) and seven expert witnesses (including medical practitioners to speak to the impact bullying had on students' mental health, educational consultants to speak to the standards of the time and specialists on Jewish matters in Australia). The case was incredibly fact-intensive with a court book containing over 1,100 documents and the judgment spanning 476 pages.

Section 9 of the RDA makes it "unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life".

The Court applied Wotton v Queensland (No 5) [2016] FCA 1457 in its interpretation of section 9 noting that there are two limbs, the first being action-based looking to what happened and its connection with race, and the second being outcome-based looking at the consequences (actual or intended) of what happened. The 'action' in this case was largely a conscious failure to take action.

The applicants successfully used a comparator in establishing that the school had adequately responded to bullying of LGBTQIA+ students by proactively implementing a range of school-wide educational campaigns, posters and visual displays of support, demonstrating that the school knew how to respond to discriminatory treatment, with the court noting it was "not ignorance that led to the neglect of the interests of Jewish students who were experiencing antisemitism" (at 395). In contrast, the principal's approach was to focus on requiring students to positively identify the perpetrators of the bullying in circumstances where it should have been obvious to the principal that students might fear retribution if they named their bullies.

The Court was satisfied that there were three human rights which were impaired: the right to security of person and protection, the right to education, and the right of the applicants to preserve their Jewish identity.

Section 18C of the RDA has been the subject of much debate and criticised for interfering with freedom of speech and political communication. The section makes it unlawful for a person to do an act in public that is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or group of people, and it is done because of the race, colour or national or ethnic origin of the person or group of people.

Similarly to the interpretation of section 9, the court held that failures and omissions are deemed incorporated into the concept of an "act" and that the school environment was a public environment.

The principal focus on section 18C is on the positive conduct of an individual and its effect on another person or group of people.

It is uncontroversial that a school owes to its pupils a common law non-delegable duty of care, that is, a duty to take reasonable care to prevent harm where it is reasonably foreseeable (Commonwealth v Introvigne [1982] HCA 40). A school's duty extends to protecting students from the conduct of other students (New South Wales v Lepore [2003] 77 AJLR 558).

Pursuant to the Crown Proceedings Act 1958 (VIC), in Victoria, the State has no direct liability in tort but has vicarious liability for its employees and agents.

Unlike the non-delegable duty in a principal or school authority, the duty of care owed by an individual teacher requires conduct by that teacher said to constitute a breach of that duty.

It cannot be a breach of duty to fail to take steps which are unlikely to do much good and even if a breach of duty is found, there must be a causal connection between the breach and the injury suffered.

The court ultimately found that:

1. The principal breached section 9 of the RDA by his failures and omissions to:

   1. take action at a systemic and coordinated level to address a high level of antisemitic bullying and harassment of Jewish students by other students and high levels of swastika graffiti at the school; and

   2. enforce the policies of the school on racial harassment in relation to antisemitic bullying and harassment of Jewish students by other students and in relation to the display of antisemitic graffiti at the school.

2. A teacher, Mr Varney, breached section 9 of the RDA during a year 8 English class in 2018 by his insensitive use of purported greetings in Hebrew to one of the students in circumstances where it singled that student out to the class as being Jewish and of Israeli national origin, notwithstanding the student and his mother had made it clear the conduct was unwelcome and unwanted.

3. Some of the claims in negligence were upheld in relation to four of the applicants.

4. The State was vicariously liable for the actions of the principal and Mr Varney.

The applicants were unsuccessful in their claims under section 18C which involves positive conduct whereas the principal's omissions in and of themselves were not what caused primary offence. Mr Varney's actions were found to be immature but not sufficiently serious to be reasonably likely to offend, insult or humiliate the student. The principal's speech was reasonably likely to offend, insult, humiliate or intimidate Jewish students, it was ill-prepared and insensitive, but was not found to be directed at the applicants' race. The claims in negligence regarding the swastika graffiti and the principal's speech failed because it was not demonstrated that it was reasonably foreseeable that the students would sustain psychiatric injury (though it was accepted they may be offended, upset and perhaps frightened).
 
In regards to compensation, pursuant to section 46PO(4)(d) of the Australian Human Rights Commission Act 1986 (Cth), the State was ordered to pay four of the former students compensation of $63,780, $60,000, $55,000 and $244,968.31.

As for the fifth student, his damages were restricted because the case was not made out against the former principal, Ms Podbury, in the same way it had been against Mr Minack. Somewhat unusually, the Court invited the State to consider making an ex gratia payment to the fifth student and it also awarded him $11,532.43 for non-economic loss and economic loss pursuant to the Wrongs Act 1958 (VIC).
 
The State was ordered to pay the applicants' capped costs.

 Acknowledging the importance of an apology, the Court ordered the State to prepare a draft wording of an apology to be negotiated in good faith. If the parties were not able to agree on the wording, the Court could use its discretion to determine the form of apology.
 
A written apology was agreed between the parties and published on 30 October 2023 and the Deputy Secretary of the Department of Education issued an oral apology on 28 November 2023.
 
The Court did not order the principal and teacher to give an apology because, in contrast to the court's findings, the principal and teacher did not consider they had done anything wrong and any apology was considered likely to be insincere.

This is a judgment that is full of interesting takeaways and reminders for school authorities and school leaders. Some key takeaways are:

1. Combatting systemic bullying and discrimination will require a proactive school-wide strategy. "The strategies are not ones that call for elaborate analysis in academic research before they can be implemented. They are common sense, proactive approaches to adolescent student behaviour, and common sense support mechanisms for affected students" (at 267).

2. Schools must have in place appropriate policies, procedures and codes of conduct to deal with bullying and discrimination, but "it is the implementation of anti-bullying and harassment policies that is critical to minimising harm to students" (at 310).

3. A teacher dismissing bullying behaviour for the reason that the student perpetrator may not fully understand the implications and seriousness of their actions is not acceptable. "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" (at 248).

4. Underreporting of bullying is very common and victims may not complain for fear of retaliation. When a complaint is received it may just be the tip of the iceberg. "Listening to students' voices is a hallmark of judicious schools" (at 262).

5. Restorative justice is now a standard practice in most Australian schools encompassing mediation and conflict resolution, and ought to be considered together with a range of strategies to deal with bullying which might include guest speakers at assemblies, posters or banners with positive messaging, requiring staff to be hypervigilant and behaviour management plans.

Mathisha Panagoda will be presenting on the topic of School Liability for Bullying at the upcoming 9th Annual Schools Law & Regulatory Conference on 24 May 2024 in Melbourne. More information about the conference can be found here.