Victorian school found liable for failure to protect Jewish students from anti-Semitic bullying and harassment
Schools are meant to be safe places for students to learn and grow, make friends, and be supported by teachers who are invested in their education and personal development. Unfortunately, for five Jewish students who had attended Brighton Secondary College in Victoria, this was not their experience. By way of application to the Federal Court of Australia, they alleged that during their time at the College they were faced with anti-Semitic bullying and harassment from other students at the College and that College staff, including the College Principal, did not take steps to protect them and other Jewish students from this bullying and harassment. In some instances, they alleged, College staff even contributed to this bullying and harassment.
These students and other students at the College had noticed that during their time at the College, the College had taken appropriate and systematic steps to protect against bullying or harassment of LGBTQIA+ students and had encouraged tolerance and acceptance of students who were exploring their gender identity or sexuality. These students noticed that the College did not take the same steps to protect against bullying or harassment of Jewish students.
Generally, the students brought three complaints against the College Principal and various other parties: two breaches of the Racial Discrimination Act 1975 (Cth) – section 9 (which prohibits direct and indirect racial discrimination) and section 18C (which prohibits offensive, insulting, humiliating or intimidating behaviour due to race), and negligence. The Court upheld some of the students’ complaints.
The Court found that the College Principal contravened section 9 by failing to take appropriate and reasonable steps to discourage anti-Semitic bullying and harassment and to address the level of swastika graffiti at the College. The College took a less favourable approach to such bullying and harassment, ignored or downplayed the resulting complaints, and tolerated an unusually high-level of anti-Semitic graffiti. The Court acknowledged that whilst the College, appropriately, took steps to discourage bullying or harassment of LGBTQIA+ persons, the equivalent failure to take appropriate steps to discourage bullying or harassment of Jewish students was relevant for the Court’s findings.
The Court upheld similar negligence claims against the College Principal that were brought by four of the five applicants for failing to take appropriate and reasonable steps to discourage anti-Semitic bullying and harassment. However, the Court rejected similar negligence claims concerning swastika graffiti, because the applicants could not prove the College had a duty of care to specifically prevent swastika graffiti around the College campus.
The Court found that the College Principal or any staff that he directed, did not contravene section 18C because most of the College’s conduct that may “offend, insult, humiliate or intimidate” did not constitute positive acts, but were rather systematic failures from the College to prevent anti-Semitic bullying or harassment.
One allegation of unwelcome anti-Semitic conduct by an individual teacher at the College was upheld by the Court as a contravention of section 9. Other claims concerning specific incidents of anti-Semitic conduct against two individual teachers were rejected by the Court.
As the State of Victoria accepted that it would be vicariously liable for any proven contraventions of the Act or negligence by the College Principal or any College teachers, the State was ordered to pay compensation to the applicants (the amount of compensation depended on the success of their claims and their individual circumstances) and was also ordered to apologise for the conduct. The College Principal could not bring himself to say sorry for the anti-Semitic bullying and harassment the applicants faced, and the Court accordingly found that there was no point in ordering the College Principal to apologise.
The College Principal resigned from his position a month after the Federal Court’s decision. The Department apologised to the affected students on 21 November 2023.
One wonders what additional safeguards could have been in place at the College to prevent such bullying and harassment from fellow students, contributed to by College staff. The minimum standards for registration of schools in Victoria (which apply both to government and non-government schools in Victoria) require the “care, safety and welfare” of students to be supported in accordance with applicable laws (both by the school and its staff). The Guidelines to the Minimum Standards and Requirements for School Registration also require Victorian schools to have policies and procedures to ensure that the duty of care a school has to its students is recognised and discharged by the school, and that student wellbeing is managed and supported (including through anti-bullying and harassment policies). Similar requirements in registration standards exist across many of the other State and Territory jurisdictions.
However, even in this situation, the College had an Anti-Bullying and Harassment Policy, which also covered anti-racism strategies. The Court even acknowledged that the former College Principal and College staff had a responsibility to implement these policies as part of their roles. It is regrettable that the former College Principal systematically failed to do so, to the detriment of many Jewish students who had attended the College.
If you need help with reviewing your school’s student wellbeing or anti-bullying policies, or if you require advice to manage staff and student conduct or welfare in a manner that complies with your school’s duty of care and anti-discrimination obligations, please contact David Ford, Stephanie McLuckie or Samuel Chu.