Applicant DT62023 v Canberra Institute of Technology
[2024] ACAT 30
•29 January 2024
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
APPLICANT DT62023 v CANBERRA INSTITUTE OF TECHNOLOGY [2024] ACAT 30
DT 6/2023
Catchwords: DISCRIMINATION – interpretation of discrimination- requirement that Territory laws be interpreted in a way compatible with human rights – scope of application – procedural informality – procedural fairness – disability and gender identity in field of education – onus of proof not discharged by applicant – unfavourable treatment by offering “man’s shirt” to woman who is transgender – whether the unfavourable treatment was because of the applicant’s gender identity – balance of probabilities – rebuttable presumption of direct discrimination – reasonable explanation for the unfavourable treatment – application dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 7, 9
Discrimination Act 1991 ss 5, 7, 8, 18
Human Rights Commission Act 2005 ss 53E, 53CA
Human Rights Act 2004 ss 27A, 30,40B,40C
Cases cited:Allatt v ACT Government Health Directorate [2012] ACAT 67
Commissioner for Social Housing v Cook [2020] ACAT 36
Edgely v Federal Capital Press of Australia Pty Ltd [2001] FCA 379
Andreopoulos v University of Canberra [2020] ACAT 95
In the matter of an Application for Bail by Islam [2010] ACTSC 147
Kidman v Casino Canberra Pty Ltd ACN 051 204 114 [2020] ACAT 50
R v Fearnside [2009] ACTCA 3Williams Love and Nichol Lawyers Pty Ltd v. Wearne [2016] ACAT 18
WSOL & John James Memorial Hospital [2011] ACAT 81
Tribunal:Senior Member E Ferguson
Member S Helyar
Date of Orders: 29 January 2024
Date of Reasons for Decision: 29 January 2024
Date of Publication: 6 May 2024
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) DT 6/2023
BETWEEN:
APPLICANT DT62023
Applicant
AND:
CANBERRA INSTITUTE OF TECHNOLOGY
Respondent
TRIBUNAL:Senior Member E Ferguson
Member S Helyar
DATE: 29 January 2024
ORDER
The Tribunal orders that:
The substantive application is dismissed.
The application is otherwise adjourned so that the Tribunal can consider whether an order should be made to revoke or amend Order 11 of the orders of 20 March 2023 for non-publication pursuant to section 39 of the ACAT Act.
The parties are directed to give the Tribunal and each other any submissions they wish to make about the non-publication issue by 12 February 2024.
The Tribunal will consider any submissions filed and make a decision in relation to the non-publication issue on the papers.
………………………………
Senior Member E Ferguson
For and on behalf of the Tribunal
REASONS FOR DECISION
The reasons below explain why the Tribunal made the orders set out above.
In this decision, consistent with Rule 137 of the ACT Civil and Administrative Procedures Rules 2020, we refer to the complaint when before the ACT Human Rights Commission as the original complaint; the complaint under consideration by this Tribunal as the Application, the complainant as the applicant, and the person against whom the complaint is made as the respondent, or the Canberra Institute of Technology or the CIT. Individual CIT staff members are referred to by their job title.
Introduction
This case concerns whether the Canberra Institute of Technology unlawfully discriminated against the applicant under section 18 of the Discrimination Act 1991 (the Act or Discrimination Act) in the area of education on the grounds of disability and gender identity.
The applicant enrolled in a Certificate III – Make-Up Course commencing in Term 1, 2021. She withdrew from the course during the first week of classes after the alleged discrimination occurred.
Background
On 3 March 2022, after an unsuccessful attempt to resolve the matter with the CIT, the applicant made a complaint to the ACT Human Rights Commission alleging unlawful discrimination.
On 6 February 2023, after assessing that conciliation was unlikely to be successful as a means of resolving the complaint, the ACT Human Rights Commission referred the complaint to the ACAT under section 53A of the (the HRC Act).
The Tribunal heard the matter on 3, 4 and 7 August 2023.
Both parties were legally represented at the hearing. The applicant gave evidence and was cross examined, as were the three witnesses for the respondent.
At the conclusion of the hearing, the Tribunal reserved its decision and directed the parties to file written final submissions. The Tribunal received the last such submission on 19 September 2023.
Summary of decision
The Tribunal did not consider any grounds for the application raised by the applicant during the hearing or in her final submissions which were outside or inconsistent with the scope of the original complaint as particularised in her Statement of Facts and Contentions dated 17 April 2023 (the SOFC) or were otherwise outside its jurisdiction.
The parties’ arguments and evidence traversed various legal and factual issues. However, the crux of the complaint before the Tribunal was whether the program co-ordinator for the course had made certain statements to the applicant which, in the circumstances, amounted to unlawful discrimination under the Act.
The respondent denied the statements had been made, or that they had been made in the circumstances alleged.
The Tribunal dismissed the application because the applicant failed to discharge the onus of proving that the disputed conduct occurred. To the extent that we found that the program co-ordinator’s conduct was both not in dispute and was unfavourable to the applicant, we were satisfied that her evidence rebutted the presumption of discrimination because it established a reasonable alternative explanation for her conduct.
Legislative framework
The jurisdiction of the tribunal
Section 53E of the HRC Act describes the powers and obligations of the tribunal in discrimination referrals as follows:
53E Kinds of orders—unlawful acts under the Discrimination Act
(1) This section applies if—
(a)the commission refers a complaint to the ACAT under this division; and
(b) the ACAT is satisfied that the person complained about engaged in an unlawful act.
(2) The ACAT must make 1 or more of the following orders:
(a)that the person complained about not repeat or continue the unlawful act;
(b)that the person complained about perform a stated reasonable act to redress any loss or damage suffered by a person because of the unlawful act;
(c)unless the complaint has been dealt with as a representative complaint—that the person complained about pay to a person a stated amount by way of compensation for any loss or damage suffered by the person because of the unlawful act.
(3) In making an order under subsection (2) (c), the ACAT must consider—
(a)the person’s right to equality before the law and the impact of the discrimination on the enjoyment of that right; and
(b)the inherent dignity of all people and the impact of the discrimination on the person’s dignity; and
(c)the public interest in ensuring an appropriate balance between the right to equal and effective protection against discrimination and equality before the law without distinction or discrimination and other human rights; and
(d)the nature of the discrimination; and
(e)any mitigating factors.
What constitutes unlawful discrimination?
Section 53 of the HRC Act defines “an unlawful act” as an unlawful act under the Discrimination Act; in this case, the relevant provision is section 18.
Section 18 of the Discrimination Act provides:
(1) It is unlawful for an educational authority to discriminate against a person—
(a)by failing to accept the person’s application for admission as a student; or
(b)in the terms or conditions on which it is prepared to admit the person as a student.
NoteThe Legislation Act, dict, pt 1 defines fail to include refuse.
(2) It is unlawful for an educational authority to discriminate against a student—
(a)by denying the student access, or limiting the student’s access, to any benefit provided by the authority; or
(b)by expelling the student; or
(c)by subjecting the student to any other detriment.
The applicant did not specify the way in which the CIT discriminated against her for the purpose of section 18. However, the alleged conduct which is the subject of these proceedings best fits that described in section 18(2)(c).
‘Detriment’ is not defined in the Act. The Macquarie Dictionary defines ‘detriment’ as “loss, damage, or injury.”[1] The Encyclopaedic Australian Legal Dictionary provides a general definition of ‘detriment’ as “prejudice, loss, or material disadvantage.”[2] Additionally, the Encyclopaedic Australian Legal Dictionary provides a specific definition where the term relates to civil and political rights as “prejudice or loss, including humiliation or denigration …”[3]
[1] Macquarie Dictionary (online) ‘detriment’ (def 1)
[2] Encyclopaedic Australian Legal Dictionary (online) ‘detriment’ (def 1)
[3] Encyclopaedic Australian Legal Dictionary (online) ‘detriment’ (def 2)
The term ‘discriminate’ is defined in section 8 of the Discrimination Act. Therefore, in order for an educational authority to discriminate by engaging in any of the conduct specified in section 18 of the Discrimination Act, that conduct must fit both within one of the general definitions of discrimination set out in section 8(2) or 8(3), as well as the specific requirements of section 18(2)(c).
The meaning of discrimination
The Act applies to discrimination on the ground of any of the protected attributes specified in section 7(1) of the Discrimination Act, including, relevantly, disability[4] and gender identity.[5] It is not disputed that, at the relevant time, the applicant had both those protected attributes.
[4] Discrimination Act s 7(1)(e)
[5] Discrimination Act s 7(1)(g)
Section 8 of the Act defines ‘discrimination’ as the following:
(1) For this Act, discrimination occurs when a person discriminates either directly or indirectly, or both, against someone else.
(2) For this section, a person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes.
(3) For this section, a person indirectly discriminates against someone else if the person imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has 1 or more protected attributes.
(4) However, a condition or requirement does not give rise to indirect discrimination if it is reasonable in the circumstances.
(5) In deciding whether a condition or requirement is reasonable in the circumstances, the matters to be taken into account include—
(a)the nature and extent of any disadvantage that results from imposing the condition or requirement; and
(b)the feasibility of overcoming or mitigating the disadvantage; and
(c)whether the disadvantage is disproportionate to the result sought by the person who imposes, or proposes to impose, the condition or requirement.
The meaning of ‘unfavourable treatment’ and ‘disadvantage’
The tribunal has previously observed that, whether a person is treated unfavourably or disadvantaged for the purposes of the Act, is a question of fact and the test is objective. In Andreopoulos v University of Canberra, the tribunal described the test as follows:
[20] In Kidman v Casino Canberra Pty Ltd, the tribunal considered the issue of unfavourable treatment to be a question of fact. The test is objective rather than comparative. The Tribunal noted that:
The Discrimination Act does not define ‘unfavourable treatment’ or what is meant by ‘treats or proposes to treat another person unfavourably’. The Discrimination Act does not invite a comparison between the way in which a person who has a particular attribute is treated compared with a person without that attribute or who has a different attribute. In other words, it does not ask: “were you treated less favourably than others?” It asks, “were you treated unfavourably?” This is an objective test. It calls for an examination of the treatment accorded to the complainant. If the consequence of the treatment is unfavourable to that person there is ‘unfavourable treatment’ and the question then turns to the reason for that unfavourable treatment, and whether it is because of the attributes they possess.[6]
[6][2020] ACAT 95 at [20], quoting Kidman v Casino Canberra Pty Ltd ACN 051 204 114 [2020] ACAT 50 at [22] (citations omitted)
[21] ‘Unfavourable treatment’ has been said to encompass acts or omissions which result in some detriment, being loss, damage or injury.
[22] In Australian Capital Territory v Wang, the tribunal noted that the words ‘effect’ and ‘disadvantaging’ are not defined in the Discrimination Act. The tribunal adopted the following meaning of ‘disadvantage’ discussed in Prezzi, Patricia Anne v Discrimination Commissioner and later approved by Beaumont ACJ (with whom Higgins and Gyles JJ agreed) in Edgely v Federal Capital Press of Australia Pty Ltd:
[22]While the term “disadvantage” might be thought to imply comparison, it does not necessarily do so. The context in which it is used may invite comparison, as where it is clear that what is in issue is comparative treatment, but it may also be used in a context where comparison is absent. The Macquarie Dictionary defines “disadvantage” as “absence or deprivation of advantage; any unfavourable circumstance or condition”. The primary meaning of “advantage” does not import comparison … or means specially favourable to success, interest or any desired end
…
[24] It is thus unnecessary to inquire whether a complainant with a particular attribute has been dealt with less favourably, because of that attribute, than persons without that attribute. All that is required is whether the consequences of the dealing with the complainant are favourable to the complainant’s interests or are adverse to the complainant’s interests, and whether the dealing has occurred because of a relevant attribute of the complainant. The same inquiry must be made where what is in issue is a condition or proposed condition of dealing with the complainant by the person who is the subject of a complaint …[7]
CIT’s responsibility for the acts of its employees
[7] [2020] ACAT 95 at [21]-[22], quoting Edgely v Federal Capital Press of Australia Pty Ltd [2001] FCA 379 at [22], [24]
Section 121A(2) of the Act provides that conduct engaged in by the representative person of a person is taken to be that of the person if the conduct was within the scope of the representative’s authority, unless the person took all reasonable steps to prevent the representative from engaging in the conduct.
The Tribunal accepts the applicant’s assertion, which was not disputed, that the respondent was, at all relevant times, vicariously responsible for the conduct of its staff members.
Section 40B of the Human Rights Act – Alleged breach of the Human Rights Act
The applicant, in their SOFC, submitted that:
(a)As a public authority, within the meaning of section 40 of the Human Rights Act 2004 (Human Rights Act or HR Act), section 40B applies to the CIT. Section 40B of the HR Act makes it unlawful for a public authority to act in a way that is incompatible with a human right when making a decision.[8]
(b)The CIT had, through the program co-ordinator, breached its obligations under section 40B.[9]
[8] SOFC at [49]-[50]
[9] SOFC at [59]
In her final submissions dated 4 September 2023, the applicant elaborated on the argument as follows:
(48) The HR Act requires Public Authorities which include [the Head of Department, the Program Co-ordinator, and the Class Teacher] to give proper consideration to a relevant human right when making decisions.
(49) The relevant human right in this case is the right to equal and effective protection against discrimination on any ground under section 8 of the HR Act.
(50) The Applicant submits that the Respondent should have considered the Applicant’s right to protection against discrimination when considering: whether the Applicant could wear alternative clothes to a bikini for the spray tanning course; whether the Applicant had to undertake the spray tanning course and in placing onerous conditions on the Applicant as a student of CIT.
(51) In cross examination all of the Respondent’s witnesses acknowledged that they did not know about their obligations under the HR Act and that they had not undertaken any training in the HR Act. It is therefore submitted that no consideration was given to the Applicant’s human rights. This is despite the Respondent stating in its response to the Human Rights Commission in relation to the Applicant’s complaint that “CIT has taken positive actions to ensure that [the applicant’s] rights have been properly considered in this instance and is satisfied that its obligations with respect to this matter have been met”.
(52) The Applicant submits that the most compatible interpretation of the Discrimination Act 1991 with human rights particularly in relation to reasonable adjustments, is that as outlined by the Applicant in these submissions.[10]
[10] Applicant’s submissions dated 4 September 2023 at [48]-[52]
Section 40B of the Human Rights Act states:
40B Public authorities must act consistently with human rights
(1) It is unlawful for a public authority—
(a)to act in a way that is incompatible with a human right; or
(b)in making a decision, to fail to give proper consideration to a relevant human right.
(2) Subsection (1) does not apply if the act is done or decision made under a law in force in the Territory and—
(a)the law expressly requires the act to be done or decision made in a particular way and that way is inconsistent with a human right; or
(b)the law cannot be interpreted in a way that is consistent with a human right.
NoteA law in force in the Territory includes a Territory law and a Commonwealth law.
(3) In this section:
public authority includes an entity for whom a declaration is in force under section 40D.
Section 40C then sets out the kinds of legal actions that a person can bring in relation to an alleged breach of their human rights:
40C Legal proceedings in relation to public authority actions
(1) This section applies if a person—
(a)claims that a public authority has acted in contravention of section 40B; and
(b)alleges that the person is or would be a victim of the contravention.
(2) The person may—
(a)start a proceeding in the Supreme Court against the public authority; or
(b)rely on the person’s rights under this Act in other legal proceedings.
(3) A proceeding under subsection (2) (a) must be started not later than 1 year after the day (or last day) the act complained of happens, unless the court orders otherwise …
Relevance of sections 40B and 40C of the Human Rights Act to these proceedings
The Tribunal’s jurisdiction in these proceedings is limited to determining whether the CIT committed an unlawful act under the Discrimination Act, specifically, whether it had contravened section 18. If the Tribunal is satisfied that the CIT committed an unlawful act, the Tribunal is empowered to make one or more of the kinds of orders prescribed by section 53E of the HRC Act. It does not have jurisdiction to determine whether the CIT contravened the HR Act.
Further, section 40B does not apply to the Tribunal’s decision-making process in this case because, for the purpose of these proceedings, the Tribunal is not a public authority.
The ACAT is defined as a “court” by the Human Rights Act. Section 40 provides that a “public authority” does not include a court, except when acting in an administrative capacity. In this case, the Tribunal is not conducting a review of any decision of the CIT, and therefore, is not acting in an administrative capacity.
It is well established that in the context of the Residential Tenancies Act 1997, pursuant to section 40C, where the applicant asserts that section 40B of the HR Act has been contravened, “human rights issues are relevant matters to be considered by the tribunal in the exercise of any discretion”.[11] Under section 53E of the HRC Act, the only discretion the Tribunal has is to decide which of the available orders it makes and, in the case of a compensation order, the quantum of the order. However, no discretion arises unless the Tribunal is first satisfied that the respondent engaged in an unlawful act within the meaning of the Act.
[11] Commissioner for Social Housing v Cook [2020] ACAT 36 at [23]
As the Tribunal did not find that the CIT had engaged in an unlawful act under the Discrimination Act, it did not have to consider how, or if, the alleged breach of the HR Act was relevant to its choice of orders under section 53E.
Reasonable adjustments – interpretation of relevant legislation according to section 30 of the Human Rights Act
The applicant submitted that:
[T]he most compatible interpretation of the Discrimination Act 1991 with human rights particularly in relation to reasonable adjustments, is that as outlined by the Applicant in these submissions.[12]
[12] Applicant’s final submission dated 4 September 2023 at [52]
She submitted that the CIT had directly discriminated against her by failing to make a number of specified reasonable adjustments on the basis of her disability and by not providing the Reasonable Adjustment Plan, developed in consultation with the applicant, to her teachers as agreed.
As we understand it, the applicant also argued that that the CIT contravened section 40B(1)(b) of the Human Rights Act by not giving proper consideration to her human rights when making a decision, and that contravention amounted to discrimination within the meaning of the Act.
Section 30 of the Human Rights Act provides that, so far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.
Section 27A of the HR Act relevantly provides for the following human rights in relation to education:
(2) Everyone has the right to have access to further education and vocational and continuing training.
(3) These rights are limited to the following immediately realisable aspects:
(a)everyone is entitled to enjoy these rights without discrimination;
Human rights, for the purposes of section 30 of the HR Act, are those reasonably limited under section 28 of the HR Act, rather than human rights in their entirety.[13]
Methodology for interpretation of section 8 in the Discrimination Act
[13] See R v Fearnside. [2009] ACTCA 3 at [94]
In accordance with the approach previously adopted by this tribunal,[14] we followed the methodology set out by Justice Penfold in Re Application for Bail by Islam (Bail by Islam), which involved the following steps:
[14] Allatt & ACT Government Health Directorate [2012] ACAT 67 at [68]
Step 1: Identify all meanings of the provision that are available under ordinary principles of statutory interpretation and consistent with legislative purpose (the available meanings), including meanings generated by applying of the but also meanings that would be available apart from
Step 2: Temporarily set aside any available meaning that is not human rights-compatible under
Step 3: Examine the remaining available meanings (that is, those that are human rights-compatible).
Step 3A:If there are one or more available meanings that are human rights-compatible, then that meaning, or the one of those meanings required by of the to be preferred, is adopted.
Step 3B:If there are no available meanings left (that is, there were no available meanings that were also human rights-compatible), re-instate the non-compatible available meanings set aside at Step 2.
Step 4: Undertake an inquiry under of the into whether any of those re-instated available meanings can be justified.
Step 4A:If only one meaning can be justified, it is adopted.
Step 4B:If two or more available meanings can be justified, then a choice must be made between them; in the ACT that choice would seem to be directed by s 139 in favour of the available meaning that best achieves the legislative purpose. In the absence of such a provision the choice would be less constrained and might, for instance, include a consideration of which meaning had the least impact on relevant human rights.
Step 4C:If none of the available meanings can be justified, then the available meaning or one of the multiple available meanings (in the ACT chosen as required by s 139) is adopted, and a declaration of incompatibility may be considered.[15]
Interpretation of section 8 of the Discrimination Act
[15] [2010] ACTSC 147 at [236]
In light of the applicant’s final submissions, we considered, “the most compatible interpretation of the Discrimination Act 1991 with human rights particularly in relation to reasonable adjustments …”[16]
[16] Applicant’s final submissions dated 4 September 2023 at [52]
The CIT’s legal obligation to make reasonable adjustments for students with disabilities to enable their participation in their studies on the same basis as other students can be found in the Disability Standards for Education 2005, a legislative instrument made pursuant to section 31(1)(b) of the Disability Discrimination Act1992 (Cth).
The CIT’s statutory obligations are reflected in the stated purpose of its Equity Policy, which is:
To provide CIT students with a learning environment in which there is no unlawful or unjust limitation to access or participation in education and training.[17]
[17] CIT, Equity Policy (Policy No 2017/976, October 2017) in witness statement of the head of department filed 10 May 2023 at [22] (Equity Policy)
The Equity Policy, under the heading “Principles”, goes on to state:
CIT will within its means, provide resources, assistance and promotion of programs in a way which reasonably accommodates individual and group differences.[18]
[18] Equity Policy at [3.3]
The Tribunal assumes that, when drafting its policy, the CIT had in mind its obligations under the Disability Discrimination Act 1992 (Cth), the Human Rights Act and the Discrimination Act.
Having applied the methodology in Bail by Islam, we concluded that there is no available meaning of “discrimination” under the Act which has the effect of providing that a failure to make reasonable adjustments amounts to discrimination.
Further, no available reading of the Act could lead to the conclusion that a contravention of section 40B of the Human Rights Act amounted to unlawful discrimination under the Discrimination Act.
However, in our view, a respondent’s failure to make reasonable adjustments to enable a student with a disability to participate fully in their studies may be relevant to determining whether the objective factual criteria for discrimination under section 8 and unlawful discrimination under section 18 of the Discrimination Act are satisfied, for example:
(a)whether the complainant was treated “unfavourably” for the purposes of section 8(2) of the Discrimination Act;
(b)whether a condition or requirement imposed on the complainant, “has, or is likely to have, the effect of disadvantaging the other person because the other person has 1 or more protected attribute.”;[19]
(c)whether such condition is “reasonable in the circumstances”;[20] and
(d)whether the complainant was subjected to “detriment”.[21]
The scope of the application
[19] Discrimination Act s 8(3) (emphasis added)
[20] Discrimination Act ss 8(4), 8(5) (emphasis added)
[21] Discrimination Act s 18(2)(c) (emphasis added)
The Tribunal only has the powers and functions conferred on it by statute.[22]
[22] ACT Civil and Administrative Tribunal Act 2008 s 9
In this case, its statutory task is to consider the complaint referred to it by the HRC and, if satisfied that the respondent has committed an unlawful act under the Discrimination Act, to make one or more of the kinds of orders prescribed by the HRC Act.[23]
[23] HRC Act s 53E
Section 7 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) provides that:
In exercising its functions under this Act, the tribunal must ensure its procedures are as simple, quick, inexpensive and informal as is consistent with achieving justice; and observe natural justice and procedural fairness.
Given the relatively informal nature of the tribunal’s procedures, it is not unusual for parties to clarify the terms of their claim or response during the course of proceedings. The tribunal will often grant parties some latitude in this regard, particularly if they are not legally represented.
In Williams Love and Nichol Lawyers Pty Ltd v. Wearne, then General President Crebbin described how the informality of tribunal procedures is reconciled with its overriding obligation to observe natural justice and procedural fairness:
Parties are not required to set out their case in ‘pleadings’ that identify with technical legal precision the cause of action and each element relied on in bringing or defending a claim. It is not required that parties use the language of the law when describing their case. What is required is that an application and the response to it, together with other material before the tribunal, set out the details of the claim made and the response raised with sufficient particularity to allow each party (and the tribunal) to know what is asserted, so that they are able to address the assertions.[24]
Tribunal procedures in discrimination matters
[24]Williams Love and Nichol Lawyers Pty Ltd v. Wearne [2016] ACAT 18 at [33]
The tribunal has adopted procedures in discrimination matters which help applicants properly identify and particularise the factual and legal grounds of their complaints at an early stage in proceedings so that the respondent and the tribunal know the claim to be addressed.
The tribunal’s usual procedure upon receiving a referral under section 53A is to direct the parties to give to the tribunal and each other party particulars of their respective cases and the evidence upon which they intend to rely.
On 20 March 2023, a differently constituted tribunal, in accordance with the usual practice, made directions to prepare the matter for hearing.[25]
[25] Corrected Order of Senior Member Orlov in DT62023 v Canberra Institute of Technology (ACAT, DT 6/2023, 20 March 2023) (ACAT Corrected Orders)
The applicant was directed to, amongst other things, file with the tribunal and give to the respondent:
(a)A document setting out each act, fact, matter, circumstance or thing which, either individually or taken collectively, amounts to unlawful discrimination under the Discrimination Act and which was the subject of the complaint to the Human Rights Commission (subsequently described in these proceedings as SOFC).[26]
(b)A written statement of any witness on whose evidence they rely.
(c)A document setting out the orders the Tribunal should make.
[26] ACAT Corrected Orders 20 March 2023, Order 1(a)
The respondent was directed to, amongst other things, file with the tribunal and give to the applicant:
(a)A document setting out its response to the particulars of discrimination and the orders sought by the applicant.
(b)A written statement of any witness on whose evidence they rely.
On 17 April 2023, in accordance with the Tribunal’s directions,[27] the applicant gave to the tribunal and the respondent the following:
(a)A Statement of Facts and Contentions with Annexures; and
(b)statements from two witnesses.
[27] ACAT Corrected Orders
On 10 May 2023, the respondent provided as directed the following material in response:
(a)Witness statements from three of the CIT staff members:
(i) The head of the Hairdressing and Beauty Therapy Department (the head of department);
(ii) The class teacher on first day of classes on 8 February 2021(the class teacher); and
(iii) The program co-ordinator/beauty therapy educator (the program co‑ordinator).
(b)A response to the applicant’s Statement of Facts and Contentions.
The original complaint, as particularised in the SOFC, forms the scope of the application to be addressed by the respondent and determined by the Tribunal.
The original complaint to the HRC
As the subject of our consideration is limited by the scope of the original complaint to the HRC, that is the obvious place to start.
The applicant represented herself and was supported by her disability advocate in the conciliation process in the HRC.
In her original complaint, the applicant described the grounds of her complaint as follows:
(a)She was treated unfavourably by the respondent because of:
(i)her disability: Complex-Post-traumatic Stress Disorder, Generalised Anxiety Disorder; Comorbid Social Anxiety disorder, Major Depressive Disorder; and
(ii)her gender identity.[28]
[28] Exhibit R2 – ‘Email from OSKY Interactive to HRC Intake’ dated 25 March 2023, page 2
(b)She complained generally that:
Several teachers discriminated against me by not implementing the disability adjustments I requested and discussed with them, they placed me in situations in and out of class and used language that made me feel humiliated and targeted.[29]
[29] Exhibit R2, page 3
(c)But stressed that,
The most awful thing c.i.t did to me was after I came out to a certain teacher in private, she said, “so do you want a man’s shirt or a woman’s shirt for uniform” this made me cry and the on-site disability AND lgtbq support person told me after I relayed the offensive sentence said: “that isn’t offensive, she did nothing wrong”.[30]
[30] Exhibit R2, page 3
(d)She claimed that the teachers:
misgendered her, pushed her to wear a bikini in front of other students when she clearly stated that she was uncomfortable to reveal her body, and offered her a man’s shirt instead of a woman’s shirt.[31]
[31] Exhibit R2, page 3
(e)The conduct described affected her as follows:
Can’t access further education through CIT because of the harmful behaviours and treatments I suffered
I experienced profound psychological suffering where I attempted to complete suicide
I was completely devastated in all aspects of life
I felt that I had failed and that people went out if their way to prevent me participating
I feel like all hope was taken out of my life
I feel like I am not capable of participating in a course of any kind, they made me feel that I will be unwelcome in any educational setting; and I can’t access any Tertiary education whatsoever. I feel scarred by the experience.
They made me feel that I was not beautiful.[32]
Complaint as particularised in the SOFC
[32] Exhibit R2, page 3
In the factual particulars provided in her SOFC, the applicant refers to the head of department, the class teacher and the program co-ordinator, as well as the education advisor from CIT Student Support, Disability (the disability advisor).
She also referred to the following documents which were annexed to her SOFC:
(a)The Reasonable Adjustment Plan developed by the disability advisor, in consultation with the applicant, on 3 February 2021 (the Plan).[33]
(b)An email from the disability advisor dated 5 February 2021,[34] arising from the applicant’s interactions with the program co-ordinator on 3 February 2021. The head of department was copied into that correspondence, and it was apparent from documents adduced by the CIT that the email was drafted in consultation with her.
(c)An email the applicant sent to the head of department on 8 February 2021, the first day of classes, informing her that she would be late for class that morning and the response to that email.[35]
[33] SOFC, Annexure A; please note the Plan was incorrectly dated 3 January 2021, see transcript of proceedings dated 3 August 2023, page 46, lines 36-40
[34] SOFC at [34], Annexure B
[35] SOFC at [35], Annexure C
In our view, the application does not encompass the alleged conduct of the class teacher, the disability advisor, or the head of department for the following reasons and is limited to the alleged conduct of the program co-ordinator.
In her original complaint, the applicant describes at some length the factual basis for her complaint, including comments made by a certain unidentified teacher. In her SOFC, she attributed substantially the same statements to the program co‑ordinator.
The applicant, in her Emotional Impact Statement annexed to her SOFC,[36] only referred to the detrimental impact that the program co-ordinator’s alleged conduct had on her.
[36] SOFC at [60], Annexure D
The applicant expressly contended in her SOFC that certain comments the program co-ordinator made to her and the circumstances in which they were made amounted, variously, to direct or indirect unlawful discrimination under the Discrimination Act, as well as breached her human rights under the Human Rights Act.
She makes no direct reference in her original complaint to her interaction with the class teacher. Instead, she simply asserts that, “several” unspecified teachers:
discriminated against me by not implementing the disability adjustments I requested and discussed with them, they placed me in situations in and out of class and used language that made me feel humiliated and targeted.[37]
[37] Exhibit R2, page 3
She provides no particulars of the alleged incidents or how it amounted to discrimination.
In her SOFC, she describes comments allegedly made by the class teacher after she arrived late for her class on 8 February, the circumstances in which they were made, and that “[the applicant] left the class crying”,[38] but, unlike the comments allegedly made by the program co-ordinator, she does not contend that they amounted to unlawful discrimination.
[38] SOFC at [35]-[37]
She did not allege that any of the email correspondence from the CIT referred to in her SOFC disadvantaged her or amounted to unfavourable treatment.
It cannot be inferred from the complaint, as particularised in the SOFC, that the applicant intended to claim that any conduct, apart from that attributed to the program co-ordinator, amounted to unlawful discrimination when she had ample opportunity to expressly say so in her SOFC, and chose not to do so. She did not seek to amend her SOFC.
Furthermore, regardless of the applicant’s intention, no claim, apart from that relating to the program co-ordinator, was set out with sufficient clarity and particularisation in the complaint and the SOFC to allow the respondent and the Tribunal to know and address it.
The issue raised by the applicant regarding the CIT not providing her Reasonable Adjustment Plan to teachers is considered only in so far as it is relevant to her complaint about the program co-ordinator.
The alleged incidents of unlawful discrimination
The applicant contended that, after the applicant had disclosed her gender identity during a private meeting, the program co-ordinator directly discriminated against her on the grounds of that identity by:
(a)offering her a man’s shirt to wear; and
(b)saying to the applicant words to the effect of: “Oh, but you’re so pretty what do you mean?”, thereby implying that trans people cannot be pretty and that she must therefore be lying.
The program co-ordinator says she offered the applicant a choice of a “man’s T-shirt”, meaning one with a loose cut, or a “female” T-shirt, meaning one with a more fitted cut, and made the offer before the applicant disclosed her gender identity. The program co-ordinator denied making the second statement attributed to her.
The applicant contended that, during the meeting, the program co-ordinator indirectly discriminated against her on the grounds of her disability and gender identity by imposing the condition that she had to wear a bikini for the spray tanning and by not agreeing to her suggested reasonable adjustment that she be able to wear a tank top with spaghetti straps and bike shorts instead of a bikini.
The program co-ordinator denied that she imposed such a condition or refused to accept the reasonable adjustment offered by the applicant.
The factual background
The Tribunal was satisfied of the following relevant facts which were either not contentious, self-evident from the undisputed evidence before the Tribunal, or clearly supported by objective evidence.
On 3 February 2021, [39] prior to commencing the course, the applicant met with the disability advisor to register for disability adjustments to be made to the course. Classes were due to commence the following week.
[39] Note, in submissions, this date was originally listed as 3 January 2023, see SOFC at [11]; this was corrected at hearing, see transcript of proceedings dated 3 August 2023, page 46, lines 22-40
Later that day, the disability advisor drafted a memo addressed to “all relevant academic staff” setting out the “Reasonable Adjustments for student registered with CIT Student Support, Disability” which identified the disabilities which the applicant was registered to receive support for, and specified the reasonable adjustments required to support the applicant in her studies. It was not sent to any staff member at that stage.[40]
[40] The Plan, page 1
The Plan referred to the applicant’s disabilities but not to her gender identity.
The Plan stated that the applicant was “registered with Student Support for mental health support, including Post Traumatic Stress Disorder, anxiety, depression, and complex trauma” and discussed how these conditions could impact her studies if reasonable adjustments were not made.[41]
[41] The Plan, page 1
It also noted that, amongst other things:
[She reported] extreme discomfort at removing clothing and she will need flexibility around the amount of skin she needs to expose for practical exercises and her comfort level.[42]
[42] The Plan, page 1
The Plan listed ten adjustments to assist her in her studies, including:
(a) Removal of clothing. [The applicant] will need to discuss her comfort level for practical activities requiring her to remove clothing. For example she may not be comfortable with a classmate practicing tanning skills beyond her legs and arms. A discussion with [the applicant] and flexibility around this issue where possible would be appreciated.[43]
[43] The Plan, page 2
The Plan stated under the heading, “Student Responsibilities”:
In the first instance the Education Advisor will send this plan to the Teacher/College on the student’s behalf. The student must distribute the plan to any new teachers after that.[44]
[44] The Plan, page 2
The applicant met in private with the program co-ordinator on 3 February 2021 to discuss the course and its requirements. The disability advisor arranged the meeting and joined them after the alleged discriminatory conduct occurred.
The applicant told the Tribunal during examination in chief that she “believe[d] [she] had a printed draft [of the Plan] with [her] at the time”[45] and she and the program co-ordinator, “went through the whole plan and everything”.[46]
[45] Transcript of proceedings dated 3 August 2023, page 17, lines 46-47
[46] Transcript of proceedings dated 3 August 2023, page 19, line 29
The program co-ordinator gave evidence that she did not have a copy of the Plan or know of its contents at the meeting, she told the Tribunal that:
They generally come after enrolment, after commencement of class, so that they would have to have a meeting with Student Services or Student Support. They will have a chat about what requirements they need and then that takes a little bit of time to draft and it gets to us generally anywhere from a week later to sometimes a month later, depending.[47]
[47] Transcript of proceedings dated 4 August 2023, page 10, lines 17-22
The applicant’s legal representative asked the program co-ordinator, “[a]nd is it an expectation that a plan such as that would be available on orientation day?”, to which the program co-ordinator responded, “[n]o. I have never had one done that early, no, or presented to me that early, no.”[48]
[48] Transcript of proceedings dated 4 August 2023, page 10, lines 24-28
We prefer the evidence of the program co-ordinator on this point on the basis that the applicant’s assertion at the hearing that she went through a draft plan with the program co-ordinator when they met was not made in evidence she previously adduced in the proceedings.
The program co-ordinator conceded in cross examination that she assumed that, because the disability advisor had made the appointment for her to meet with the applicant, the applicant had a disability and that some reasonable adjustments would be requested.[49]
How is discriminatory conduct established?
[49] Transcript of proceedings dated 4 August 2023, page 31, line 44-page 32, line 1
Section 53CA of the HRC Act sets out the onus of establishing discrimination complaints referred to the ACAT as follows:
(1) This section applies to a discrimination complaint, referred to the ACAT under this division, about discrimination by a person against another person by—
(a)treating, or proposing to treat, the other person unfavourably because of a protected attribute of the other person (direct discrimination); or
(b)imposing, or proposing to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because of a protected attribute of the other person (other than a condition or requirement that is reasonable in the circumstances) (indirect discrimination).
(2) It is a rebuttable presumption that discrimination has occurred if the complainant—
(a)establishes that—
(i)for a complaint about direct discrimination—the treatment or proposed treatment is unfavourable; and
(ii)for a complaint about indirect discrimination—the condition or requirement has, or is likely to have, an effect of disadvantaging the other person; and
(b)presents evidence that would enable the ACAT to decide, in the absence of any other explanation—
(i)for a complaint about direct discrimination—that the treatment or proposed treatment is because of a protected attribute of the other person; or
(ii)for a complaint about indirect discrimination—that the effect of disadvantaging the other person is because of a protected attribute of the other person.
(3) The presumption under subsection (2) is rebutted if the person complained about establishes that—
(a)for a complaint about direct discrimination—the treatment is not because of a protected attribute of the other person; or
(b)for a complaint about indirect discrimination—the effect of disadvantaging a person is not because of a protected attribute of the other person.
NoteThe onus of establishing an exception or exemption to discrimination is on the person seeking to rely on it (see Discrimination Act 1991, s 70).
(4) In this section:
protected attribute means a protected attribute under the Discrimination Act 1991.
The civil standard of proof applies, that is, the onus of establishing the relevant factual assertion will be met if the person making the assertion establishes that it is more probable than not.
Given the effluxion of time, it is not surprising that the program co‑ordinator’s and the applicant’s recollection of the conversation differed, or that there are some internal inconsistencies in their accounts.
As they were the only ones present when the alleged discrimination occurred, it is the applicant’s word against the program co-ordinator’s. Where their evidence was equally balanced, a relevant fact in dispute was only established to the Tribunal’s satisfaction if the party who had the onus of establishing that fact did so.
As then President Crebbin noted in WSOL & John James Memorial Hospital:
A finding that a party has failed to discharge the onus of proof does not necessarily mean that the tribunal has rejected the evidence of that party or that the tribunal does not believe the evidence of the party. It means no more than that the evidence is not sufficient to establish what is needed to prove the case.[50]
Findings in relation to discrimination
[50] [2011] ACAT 81 at [33]
The program co-ordinator, in her witness statement, observed that the applicant was “very agitated” when told that spray tanning was part of the course and questioned why the CIT did not offer a make-up course only.[51]
[51] Witness Statement of the program co-ordinator 10 May 2023 at [14]
The program co-ordinator says she responded: “[o]ur training package is nationally recognised,” and “our course qualifications are designed by the beauty industry …”[52]
[52] Witness Statement of the program co-ordinator 10 May 2023 at [14]
However, in cross examination, both the program co-ordinator and the head of department agreed that Spray Tanning was an elective subject. The program co‑ordinator stated that “we choose to put it in and we have chosen to have it in”.[53] The head of department also acknowledged that it may have been an option for the applicant not to do the spray tanning course, but that this option was not offered to the applicant.[54]
[53] Transcript of proceedings dated 4 August 2023, page 39, lines 42-43
[54] Transcript of proceedings dated 7 August 2023, page 30, line 40-page 31, line 43
It is not disputed that, during the conversation, the applicant told the program co‑ordinator that she was uncomfortable exposing too much skin.
The discussion moved on to what she was required to wear when participating in the spray tanning practical exercises with a student partner.
The program co-ordinator denied that she told the applicant that it was compulsory to wear a bikini when receiving the tanning treatment, or that she rejected the applicant’s compromise that she wear a tank top with “spaghetti straps” and bike shorts.
The Tribunal was not satisfied that the applicant discharged the onus of establishing that the program co-ordinator imposed the condition that she had to wear a bikini for the spray tanning.
The Tribunal was not satisfied that the applicant had discharged the onus of establishing that the program co-ordinator refused to allow the reasonable adjustment that the applicant be able to wear a tank top with spaghetti straps and bike shorts instead of a bikini.
The applicant stated that she felt pressured by the program co‑ordinator’s aggressive questioning as to why she could not wear a bikini to disclose that she was a trans woman, whereupon the program co-ordinator said words to the effect, “[o]h but you’re so pretty what do you mean?”.[55] The program co-ordinator denied she made this statement.
[55] SOFC at [29]
The Tribunal was not satisfied that the applicant had discharged the onus of establishing that the program co-ordinator said to the applicant words to the effect, “[o]h, but you’re so pretty what do you mean?”[56]
[56] SOFC at [29]
The applicant stated that after she disclosed that she was a trans woman:
[The program co-ordinator] then offered a CIT shirt to the Applicant. When the Applicant accepted, [the program co-ordinator] stated words to the effect ‘do you want a male shirt’. At this comment the Applicant started crying and [the program co-ordinator] then said words to the effect “is that a, yes?[57]
[57] SOFC at [30]
The program co-ordinator denied both that she only offered the applicant a male shirt, or that she offered the T-shirt after the applicant disclosed her gender identity. In her witness statement, she said that she told the applicant:
I can give free CIT t-shirts, they come in male or female (female are fitted and male are larger square, loose fitting)” at which point the Applicant started to cry and I was unaware as to why. The Applicant then disclosed that she was transgender and was upset by me offering the male t-shirts. The Applicant was very upset, and I did apologise for upsetting her.[58]
[58] Witness Statement of the program co-ordinator dated 10 May 2023 at [27]
It was not clear to the Tribunal whether the program co-ordinator explained the difference in cut between the styles to the applicant or simply included it in parenthesis in her witness statement by way of explanation.
The Tribunal was not satisfied that the applicant had discharged the onus of establishing that the program co-ordinator only offered the applicant a “male” shirt rather than a choice of cut.
It is not contested that the program co-ordinator did offer a “male” shirt. It is understandable that the applicant would be upset by being offered a “male” shirt, whether as an alternative to a “female” shirt or not. The Tribunal is satisfied that offering a “male” shirt to the applicant amounted to unfavourable treatment within the meaning of section 8(2) of the Discrimination Act.
The question is, was the choice offered because of her protected attribute of gender identity.
The applicant’s evidence was that she disclosed her gender identity to the program co-ordinator before the offer was made. Her evidence, if no other explanation was offered, would enable the Tribunal to decide that the choice of a male style T-shirt was offered because the applicant’s gender identity. Therefore, section 53CA(2)(b) of the HRC Act is enlivened, and a rebuttable presumption of direct discrimination arises.
It is for the respondent to rebut the presumption by establishing that the offer was not made because of the applicant’s gender identity.
The program co-ordinator gave evidence that the applicant only disclosed her gender identity after becoming upset at being offered a choice of either a male or a female style T-shirt and that she apologised for upsetting the applicant at the time. She also provided a reasonable alternative explanation as to why she described the choice between the two styles of shirt in that way. We preferred her evidence as credible and more logically consistent on this point to that of the applicant.
The Tribunal was satisfied that the respondent had discharged the onus of establishing, pursuant to section (3)(a), that the program co-ordinator did not offer the applicant a choice of a male style T-shirt because of her gender identity and that she was genuinely remorseful for having inadvertently upset her.
Conclusion
We dismissed the application because, on the evidence before us, we were not satisfied that the program co-ordinator, acting on behalf of the CIT, had engaged in unlawful discrimination under the Discrimination Act 1991.
However, we note with concern that the program co-ordinator was not aware what reasonable adjustments were required to enable the applicant to participate fully in her studies when she met with her to discuss course requirements. She had only inferred that the applicant had a disability and that some reasonable adjustments would be necessary from the fact that the meeting occurred at the request of the disability student services advisor.
Such a discussion should have been informed by the detailed reasonable adjustments plan developed by the disability advisor in consultation with the applicant. Indeed, the Plan stipulated that:
In the first instance the Education Advisor [the disability advisor] will send this plan to the Teacher/College on the student’s behalf. The student must distribute the plan to any new teachers after that.[59]
[59] The Plan, page 2
We note that the plan was only drafted on the day of the meeting. In her oral evidence, the program co-ordinator admitted that she had never had a student’s plan on Orientation Day.
In order to minimise the risk of students suffering unlawful discrimination in future, we strongly encourage the CIT to review its procedures to ensure that a student’s plan is produced and distributed to relevant teachers before classes commence or discussions about course requirements occur. We note that failure to circulate a plan in a timely manner also increases the likelihood of the CIT inadvertently contravening section 40B of the Human Rights Act 2004.
The Tribunal orders that the application is dismissed.
On 18 April 2024, orders were made confirming the non-publication orders made on 20 March 2023 and closing the Tribunal file to the public.
………………………………
Senior Member E Ferguson
For and on behalf of the Tribunal
| Date(s) of hearing: | 3, 4, and 7 August 2023 |
| Solicitors for the Applicant: | S Stanley, ADACAS |
| Solicitors for the Respondent: | I Collins, ACT Government Solicitor |
Amendments
3 May 2024Replace the word “trans woman” with the words “woman who is transgender” for catchwords on the cover, in accordance with a notation to the Tribunal’s orders of 18 April 2024.
3 May 2024New paragraph 127
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