Dao v University of Canberra (Discrimination)
[2025] ACAT 72
•15 October 2025
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
DAO v UNIVERSITY OF CANBERRA (Discrimination) [2025] ACAT 72
DT 1/2025
Catchwords: DISCRIMINATION – applicant complains of direct discrimination by the University of Canberra in a masters degree – applicant claims that she was treated unfairly by failing “must pass” assessments in two units – applicant claims treated unfairly because of race, sex, age, profession, trade occupation or calling – whether the obtaining of a PhD can amount to a protected attribute of occupation, trade, profession or calling – whether applicant was treated unfairly– interim application to dismiss under section 32(2)(b) of the ACAT Act – was the applicant subjected to a detriment under section 18 of the Discrimination Act – rebuttable presumption under section 53CA(3)(a) of the HRC Act – whether applicant treated unfavourably because of a protected attribute– whether applicant met necessary academic standards of passing assessments – application dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 6, 7, 32
Discrimination Act 1991 ss 7, 8(2) 18(2)
Human Rights Commission Act 2005 ss 53A and 53CACases cited:Applicant 202024 v The Australian Capital Territory (Represented by Access Canberra) [2021] ACAT 14
Complaint 201931 Australian Capital Territory [2021] ACAT 9
Farah v Sandilands [2021] ACAT 92
Kidman v Casino Canberra Ltd [2020] ACAT 50
Mr M V B [2017] ACAT 14
Sirohi v Director-General, Justice and Community Safety Directorate [2019] ACAT 84
Pojohishgar v University of Canberra (Discrimination) [2022] ACAT 53
Tribunal:Senior Member W Hawkins
Date of Orders: 15 October 2025
Date of Reasons for Decision: 15 October 2025
Date of Publication: 22 October 2025
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) DT 1 /2025
BETWEEN:
LOAN DAO
Applicant
AND:
UNIVERSITY OF CANBERRA
Respondent
TRIBUNAL: Senior Member W Hawkins
DATE: 15 October 2025
ORDER
The Tribunal orders that:
1.Application dismissed.
………………………………..
Senior Member W Hawkins
REASONS FOR DECISION
Introduction and background
1.In the reasons below, a reference to “ACAT” or “tribunal” refers to the ACT Civil and Administrative Tribunal generally, whereas “Tribunal” refers to the current member.
2.Loan Dao (the applicant or Dao) complains about direct discrimination by the University of Canberra (the respondent or UC) in the Australian Capital Territory (ACT) where the applicant was enrolled in a masters degree. The applicant’s central complaint is that she failed the unit 10273 Professional Practice 1 PG (Professional Practice) and the unit 11983 Special Topics in Speech Pathology (Special Topics) in the Master of Speech Pathology at the UC (Masters Course). She says that she was treated unfavourably by Jolin Edmondson (Edmondson) and Leah Hanley (Hanley) who were members of the respondent’s teaching staff.
3.The applicant successfully completed units in the Masters Course during 2021 and 2022. She did not enrol in any units in 2023. In 2024 she enrolled in Professional Practice where Hanley was the unit convenor and lecturer and in Special Topics where Edmonson was the convenor and taught one of the two components of the unit. Hanley taught the other component.
4.The applicant was assessed by Hanley and Edmonson as failing “must pass” assignments in each of the two units. The applicant was allowed to resubmit each assessment item in order to be awarded a pass grade. The applicant resubmitted the relevant assignments. However, she was again assessed as failing each of the resubmitted assessments.
5.In June 2024 the applicant filed a student grievance in relation to each of the fail results and these were dismissed by UC in August 2024. In August 2024 the applicant filed an appeal against the outcome of the student grievances and these were dismissed in September 2024.
6.On 8 October 2024, the applicant filed a complaint to the ACT Human Rights Commission (HRC) of discrimination against her by the UC in the area of education on the grounds of age, gender identity, immigration status, profession, trade, occupation or calling and race. She said that she had been treated unfairly because Edmondson and Hanley did not hold a doctorate degree (PhD) specifically from the Australian National University (ANU), whereas the applicant did, and that she was a “woman, Asian and old.”.[1]
[1] Exhibit 1 Agreed Bundle of Documents, attachment T
7.On 7 January 2025, the HRC referred the complaint of unlawful discrimination to the ACAT pursuant to section 53A of the Human Rights Commission Act 2005 (HRC Act).
8.On 17 February 2025, the tribunal made orders directing the parties to file witness statements, relevant documents, submissions, and their completion of the tribunal’s standard questionnaire in discrimination matters (the Questionnaire).
9.By 17 March 2025, the applicant had completed her portion of the Questionnaire and provided documents in support of her claim. In addition to seeking that the respondent not repeat or continue the unlawful act, the applicant sought a public apology, at least a pass grade in the two units and systemic changes to protect future students against further discrimination. The applicant also sought compensation for the loss suffered by her from the unlawful discrimination on the basis of “stress, anxiety, depression … distress, humiliation, loss of self-esteem and of enjoyment of life; time, mental/psychological/emotional/physical … financial expenses.” She also claimed for the loss of her payments pursuant to the Higher Education Contribution Scheme (HECS) of $15,000 and in pursuing the claim. Further, she claimed damage to her reputation as a former academic. The applicant did not quantify the loss claimed.[2]
[2] Exhibit 1 Agreed Bundle of Documents, Items 1 and 2
10.By 5 May 2025 the respondent had completed its portion of the Questionnaire and provided documents. The respondent denied that it had engaged in any unlawful act and rejected the orders sought by the applicant including the claim for compensation.[3]
[3] Exhibit 1 Agreed Bundle of Documents, Items 1 and 2
11.The matter was listed for hearing before me on 22 and 23 May 2025. The applicant appeared in person with Agnieszka and Alexander Czezowski for support. The respondent was represented by Danny Kynaston, solicitor of King and Wood Mallesons who was instructed by Matt Roser of the respondent.
12.An Agreed Tender Bundle (the Tender Bundle) was admitted into evidence. The Tender Bundle contained relevant documents including unit outlines, marking rubrics, the applicant’s assessments, email communications; the applicant’s UC grievance and appeal, witness statements, HRC documents, the parties’ submissions and any replies. Dao, Hanley and Edmondson provided statements, gave evidence and were cross examined. The applicant did not file an initial written submission but filed submissions in reply to the respondent’s submissions. The applicant also filed responses to the statements of Hanley and Edmondson.
13.The applicant in essence submitted that the “protected attributes” under section 7 of the Discrimination Act 1991 (Discrimination Act) were race, sex, age, profession, trade, occupation or calling. The unfavourable treatment was Hanley and Edmondson allocating her fail marks in the units Professional Practice and Special Topics and the Discipline Head, Professor McKechnie (McKechnie) suggesting to her that she should “exit” the course. The applicant relied upon section 18(2)(c) of the Discrimination Act and said that she was discriminated against in the area of education as she had been “expelled” and had been subjected to other detriments. She also said that this would mean that she would have an unfavourable academic record, be unable to complete the course or gain a qualification in the field of speech pathology.[4]
[4] Exhibit 1 Agreed Bundle of Documents, attachment 1 "Claim and Response”
14.The parties also made oral submissions at the hearing. Subsequent to the hearing, on 27 May 2025, the applicant emailed the tribunal and the respondent and sought to make an “amendment” to her allegations of “academic misconduct” by changing it to allegations of “academic judgement” and to “clarify” the relief sought by her. The Tribunal regards the communication as a written submission.
15.The applicant’s email to the tribunal and the respondent was unsolicited and received some days after the hearing concluded. The Tribunal did not make orders for further written submissions at the conclusion of the hearing and the applicant had not filed an interlocutory application seeking to file further submissions. The attitude of the respondent to the communication is not known. In relation to the relief sought, the applicant included further demands including how the external assessor and moderator should undertake their tasks. The first part of the submission is a significant change in how Dao presented her case and put the academic integrity of both Hanley and Edmondson into issue. The change in the applicant’s allegation concerning the academic integrity of Hanley and Edmondson was appropriate.
16.In light of the foregoing and having regard to the need to observe natural justice and procedural fairness, tribunal principles as set out in section 7(b) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act), the Tribunal declines to consider the applicant’s late submissions apart from noting the withdrawal of the allegation of academic misconduct against Hanley and Edmondson.
17.I will briefly discuss this communication later in this decision.
Legislative Background
The Discrimination Act 1991 and the HRC Act
18.Discrimination matters in the ACT are governed by the Discrimination Act 1991 (the Discrimination Act), and complaints are made and responses determined under the HRC Act.
19.The applicant made a claim of direct discrimination against the respondent under the Discrimination ACT.
20.Section 8(2) of the Discrimination Act states that a “person directly discriminates against someone else if the person treats or proposes to treat another person unfavourably because the other person has one or more protected attributes.”
21.Section 7 of the Discrimination Act sets out each of the protected attributes recognised by the Act. Relevantly here, this includes age, profession, trade, occupation or calling, race, and sex.
22.Section 18(2) of the Discrimination Act states that 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.
23.Section 53CA(1)(a) of the HRC Act states that the section applies to a discrimination complaint referred to the tribunal about discrimination by a person against another person by “treating, or proposing to treat, the other person unfavourably because of a protected attribute or the other person” (direct discrimination).
24.Section 53CA(2) states that 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 …
(b) presents evidence that would enable the ACAT to decide, in the absence of any explanation-
(i) for a complaint about direct discrimination- that the treatment or proposed treatment is because of a protected attribute of the other person…
25.19. Section 53CA(3) states that:
the presumption under subsection (2) is rebutted if the respondent establishes a) for a complaint of direct discrimination - the treatment is not because of a protected attribute of the other person…
The respondent’s interlocutory application to dismiss the application
26.At the conclusion of the applicant’s case in the afternoon of the first day of hearing, the respondent made an oral application pursuant to section 32 of the Act Civil and Administrative Tribunal Act 2008 (the ACAT Act) to dismiss the applicant’s claim. The respondent specifically relied upon section 32(1)(b) of the ACAT Act and said that the claim was lacking in “substance”. The respondent referred to Pojohishgar v University of Canberra (Discrimination) (Pojohishgar).[5] Essentially, the respondent argued that the applicant had not presented evidence to satisfy the minimum evidentiary threshold required by section 53CA of the HRC Act. Applying Pojohishgar, the respondent contended that the applicant could not possibly succeed in her claim, and as a result, the respondent had no case to answer and the application must be dismissed without requiring the respondent to go into evidence.[6]
[5] [2022] ACAT 53
[6] Transcript 22 May 2025 at pages 101-104, and at page 108
27.The applicant opposed the respondent’s application and argued that Pojohishgar could be distinguished. She said that the onus was upon the respondent to provide relevant evidence of facilitating an external independent review process for assessment of marks. She said that she had done everything that she could do to obtain the evidence and that the respondent’s processes had denied her procedural fairness. The applicant outlined in some detail the attempts that she had made to obtain evidence in support of her case, including various email communications with academics not connected with UC but ultimately all were unable to assist.[7]
[7] Transcript 22 May 2025 at pages 106-108
28.The following morning I delivered my decision dismissing the respondent’s application and provided brief oral reasons.[8]
[8] Transcript 23 May 2025 at pages 113-115
29.My reasons for dismissing the respondent’s interlocutory application are set out in more detail below.
30.It is well established that the onus is upon the respondent to satisfy the Tribunal that it should exercise its power to dismiss the application under section 32 of the ACAT Act.[9]
[9] See Gindy v Chief Minister of the ACT Government and Others {2007} ACTDT 2
31.After examining the relevant authorities, the tribunal in Neelander Sirohi v Director-General, Justice and Community Safety Directorate[10] (Sirohi) said:
The term ‘lacking in substance’ has been taken to mean an application which, after an applicant’s evidence has been considered, contains nothing of substance for a respondent to answer[11]
[10] [2019] ACAT 84
[11] [2019] ACAT 84 at [50]
32.The tribunal in Farah v Sandilands[12] after examining the relevant authorities said:
The approach taken by the courts to summary dismissal must necessarily be adapted to the procedural context of the tribunal. Accepting that ACT law, as expressed by Errington, Galovac and Financial Integrity, maintains the traditional approach to summary dismissal, the Tribunal’s task in determining the interlocutory application is to assess whether there is no real question to be tried in the sense that the claim is bound to fail taking into account the material provided by both parties at this stage of the proceedings on the assumption that every fact ‘pleaded’ by the applicant is true[13]
[12] [2021] ACAT 92
[13] [2021] ACAT 92
33.In my view, the Tribunal must be cautious in exercising its discretion where a respondent makes an application under section 32. If the order was made, it brings the application to an end. I must be satisfied that one or more of the grounds set out in section 32(1) is met.
34.The matter before me had been listed for hearing for two days. The respondent’s case relied upon two witnesses. In that regard, the hearing of the matter at the end of the first day was well advanced. The applicant would have the opportunity to cross-examine the respondent’s witnesses who were convenors of the relevant courses and/or who taught modules in them and it was possible that evidence would emerge from the witness’ responses that might assist Dao’s claim.
35.One of the objects of the ACAT Act set out in section 6(d) is to ensure that decisions of the tribunal are “fair.” As stated above the tribunal’s principles under section 7 of the ACAT Act require, in particular, that the tribunal must “observe natural justice and procedural fairness.”
36.After considering the above, it was my view that although the applicant’s case might have some difficulty, it was important to hear the evidence of both Hanley and Edmondson and to allow the applicant to have the opportunity to cross-examine each of them. At the time of delivering my decision dismissing the respondent’s interlocutory application, I indicated to the parties that my refusal of the respondent’s interlocutory application would not necessarily mean that the applicant would ultimately be successful in her substantive claim of unlawful discrimination, but that she should be allowed to continue to prosecute her claim of unlawful discrimination against the respondent.[14]
[14] Transcript 23 May 2025 at page 115
The evidence
Loan Dao
37.In essence, Dao’s evidence in her statement dated 17 March 2025 was that:
a) She was born in Vietnam in the 1950s. She obtained a Bachelor in English Linguistics and Literature (Honours) from the University of Ho Chi Minh City in Vietnam in 1980.
b) She obtained a Doctorate of Philosophy in Applied Linguistics from the ANU in 2007.
c) From 1980 to 1982 she was a lecturer and English language teacher at University of Ho Chi Minh City. From 1986 until the present, she held various positions within the Australian Public Service and other entities and was a sessional lecturer and tutor at UC and ANU.
d) Her doctorate included elements which she considered were linked to the units of Professional Practice and Special Topics in the Masters Course. For example, her doctorate included linguistic analysis including phonetics, phonology, syntax/grammar and semantics.
e) She enrolled in the Masters Course in semester one in 2021. The course has 16 units and she has completed 12 units.
f) By the end of semester one in 2021, she had completed five units and these were marked at “credit” level or higher.
g) Towards the end of semester two in 2022, she began receiving fail marks for either part of or for all of her assignments.
h) The change in grades followed her participation in an online student discussion board for the course 10271 Specialist Communication Disorders (Specialist Communication). She sought to clarify a convenor’s formulae for calculating the severity of stuttering.
i) As a result of her fail marks, she did not take any units in the Masters Course in 2023.
j) In the summer semester of 2023/2024, she enrolled in Professional Practice and in Semester One of 2024, she enrolled in Special Topics. Unfortunately, most comments by markers were negative and the marking rubrics that were returned to her ranked her ability at the lowest scale.
k) Concerning her protected attributes, she said that it was having her doctorate from the ANU, which caused “subjective psychological reactions such as respect, envy, threat or even hatred … then accumulated by my race, sex and age.”[15] She argued that her attributes were known to all convenors in the Masters Course because she had included her curriculum vitae which contained her qualifications in her application for the Masters Course.
l) She gave an example of the discrimination and referred to her treatment during an intensive face-to-face simulation in semester one, 2024 where she was continuously challenged by one of the discipline convenors who was playing a role and who was “disrupting or challenging” her with questions or comments.
m) In April 2024, following the interactions and the fail marks, she obtained a letter of support from her general practitioner and contacted the UC Medical and Counselling Centre who provided her with assistance including sessions with a psychologist.
n) The “attacks” upon her had significant impacts upon her health, including depression and physical exhaustion.
o) As a result of not passing Professional Practice, she cannot enrol in the remaining two units of the Masters Course, and as a result, is unable to complete her degree.
[15] Exhibit 1 Agreed Bundle of Documents, Item 3, Applicant’s Statement dated 17 March 2025 at [26]-[27]
38.Dao was cross-examined and answered questions from me. Dao said in response that she:
a) Confirmed that Professional Practice was taught by Hanley who was the unit convenor and lecturer and that Special Topics was taught by Edmondson who was the unit convenor. She also confirmed that Hanley also taught a module in Special Topics.[16]
[16] Transcript 22 May 2025 at pages 30-31
b) Agreed that Hanley in her module in Special Topics had set and marked some quizzes and marked some case work and that she had received at least pass marks in the quizzes.[17]
[17] Transcript 22 May 2025 at page 32
c) When asked about some later work in Professional Practice, she agreed that the work was not passed and was allowed by Hanley to resubmit the work.
d) Agreed that an assessment for Professional Practice had a written component and a video component. On her first submission of the assessment, she passed the video component but failed the written component. She understood that the assessment was a “must pass” component in order to pass the unit. She also agreed that if a student had not passed the assessment on the initial attempt, then the student would have an opportunity to resubmit the assessment. The resubmission would occur after the student received marker’s feedback contained in imbedded comments in the original submitted assessment as well as in the marking rubric. Unfortunately, Dao did not see the marker’s comments prior to her resubmitting the assessment. She conceded that Hanley then arranged a meeting with her and the meeting took place on 5 April 2024.[18] Following the meeting, the applicant agreed that she was able to resubmit the assessment a third time and that this was only permitted following Hanley’s request to the discipline head McKechnie.[19]
[18] Transcript 22 May 2025 at pages 36-46
[19] Transcript 22 May 2025 at page 47
e) Did not agree that Hanley’s actions in permitting her to resubmit a third time was inconsistent with her allegation that Hanley was determined to fail her because of her protected attributes, but rather it was just a “façade” by Hanley.[20]
[20] Transcript 22 May 2025 at page 49
f) When she was referred to email exchanges between herself and Hanley, she agreed that she did not mention that she was discriminated against, but stated that “underneath, there’s already the motive … and that I would like an eternal, independent assessment ….”[21]
[21] Transcript 22 May 2025 at page 50
g) After she resubmitted the assessment a third time and after she was informed that she had not passed, she said that she had an email exchange with Hanley and a meeting was arranged for 26 April 2024. She agreed that in the email exchange and at the meeting on 26 April 2024, she did not make any allegation of discrimination, but said that she was “reserving her position” and she was waiting to obtain evidence as it was a “strong allegation” to make.[22]
[22] Transcript 22 May 2025 at pages 52-53
h) When asked about her participation in the course 10272 in 2022 Clinical Speech Pathology, of which Edmondson was the unit convenor and lecturer, she agreed that she passed the course and that Edmondson had marked her assignments. However she did not agree that at least at that time that Edmondson was not discriminating against her because of any of her protected attributes.[23]
[23] Transcript 22 May 2025 at page 56
i) Agreed that in relation to the course Special Topics in 2024, there were two modules. The first module was taught by Edmonson and included some quizzes that she failed. She said that Edmonson was “not available for immediate feedback in accordance with the UC policy.”[24]
j) Said that in an email exchange with Edmonson, she stated the mark was due to online “unfavourable feedback” that had been given to Edmonson in 2024 but she was not the author of the feedback.[25]
k) When questioned about failing an assessment, she agreed that Edmonson had reached out to her to arrange a meeting to discuss how to improve her work when the assessment was resubmitted but said that the “reaching out” was only “on the surface professional.” She denied that at a meeting Edmonson had shared her screen with her on 12 April 2024.[26] She also stated that at the meeting she was focussed upon what would happen next, and that she would be “failed and failed and failed, no matter what.”[27] She agreed that she accused Edmonson during the meeting that she had failed her in all her work but admitted that she had passed Clinical Speech Pathology in 2022.[28]
l) Denied making accusations during the meeting that Edmonson was “not a good teacher” and that her “feedback was not helpful”.[29] She agreed that after the meeting she received an email from Edmonson stating that Edmondson would arrange for someone else to mark the resubmitted assignment. However, she said that any marker would be from the “same team” and “not independent”. During the meeting she agreed that she did not make any discrimination allegation concerning Edmondson.[30]
m) She agreed that she again failed on the resubmission of the assignment.[31]
n) That in relation to the meeting with Hanley on 20 June 2024, she said that she requested the meeting on 13 June 2024, and that the purpose of the meeting was to obtain further clarification on the courses Professional Practice and Special Topics and the progression of her studies more generally. She agreed that during the meeting she did not make any allegation of discrimination, but did ask for an independent reviewer.[32]
o) Acknowledged that when she lodged the two grievances, one in respect of Professional Practice and one in respect of Special Topics, she did not make any claim of discrimination but rather that both Hanley and Edmonson were biased against her because she had posted comments on an online student message board and that this was the ”turning point … the beginning point”.[33]
p) Said that following the lodging of the grievances, she met with McAllister, but during the meeting she did not raise any allegations that she had been discriminated against because of a protected attribute but rather there had been a failure of procedural fairness.[34] She agreed that during this meeting she stated that Hanley and Edmonson had been afforded the title of “Dr” when they did not have the qualification and that she did and as a result there was an “implicit bias” by McAllister, Hanley and Edmonson and that Edmonson in an earlier lecture had referred to an academic work which did not exist.[35]
q) Accepted that she was unsuccessful in her grievance and as a result lodged an application for an appeal which was dismissed.[36]
r) Agreed that in her complaint to the HRC in October 2024, that she first raised discrimination on the grounds of a protected attribute and said that she made the complaint at that time as she now had “accumulated evidence” which was the fail marks for the two courses.[37]
[24] Transcript 22 May 2025 at pages 58-59
[25] Transcript 22 May 2025 at pages 60-64
[26] Transcript 22 May 2025 at pages 66-69
[27] Transcript 22 May 2025 at page 69
[28] Transcript 22 May 2025 at page 70
[29] Transcript 22 May 2025 at pages 70-71
[30] Transcript 22 May 2025 at pages 71-73
[31] Transcript 22 May 2025 at page76
[32] Transcript 22 May 2025 at pages 77-81
[33] Transcript 22 May 2025 at page s 81-83
[34] Transcript 22 May 2025 at pages 84-85
[35] Transcript 22 May 2025 at page 86
[36] Transcript 22 May 2025 at page 86
[37] Transcript 22 May 2025 at pages 89-93
39.In re-examination Dao said that she wanted to make it clear that she was seeking procedural fairness and in particular, an external independent review of her submitted work and that the respondent should be responsible for this, that the context was first the student discussion board where she sought to clarify academic information; and the second was the reference in a lecture to non-existent academic work.[38]
Leah Hanley
[38] Transcript 22 May 2025 at pages 96-101
40.In summary, Hanley gave evidence in accordance with her statement dated 5 May 2025 and said:
a) She was conferred with a PhD from the University of Sydney in June 2024. She commenced working at the respondent in February 2022 and ceased her employment there in November 2024.[39]
[39] Exhibit 1 Agreed Bundle of Documents, attachment 3 at [1]-[4]
b) In the summer semester 2023/24, she was the unit convener and lecturer in Professional Practice and the applicant was enrolled as a student in the course. It is a clinical placement unit involving a mandatory clinical placement. The unit commenced with a five day intensive simulation clinic (SIM clinic). She explained the assessment items and referred to the unit outline. The End COMPASS, is an assessment tool developed by Speech Pathology Australia, and is used as an accreditation tool. The student has to prepare an assessment plan and a video demonstration of one of their assessments from their plan. In order to pass the unit, a student must achieve a pass mark for each of the individual assessment items. If a student does not pass, they are given an opportunity to resubmit the assessment item. If they still do not pass, they will fail the unit and must retake the unit.[40]
[40] Exhibit 1 Agreed Bundle of Documents, attachment 3 at [6]-[9]
c) For Professional Practice she referred to the assessment items completed by Dao and said that:
i)She had not met Dao prior to her enrolling in semester 1, 2023. She met Dao briefly during a one day intensive. Dao subsequently withdrew from the course and later re-enrolled for the summer semester of 2023/24.
ii)On 23 January 2024 she emailed Dao and amongst other things, set out information concerning Canvas (the learning information management system used by UC) and also reminding Dao of the upcoming SIM clinic.
iii)Following the SIM clinic, she sent an email to Dao and other students who may have had a break in their studies, inviting them to meet with her in order that she could provide some assistance to them in meeting the unit’s requirements.
iv)The first assessable item of work was a clinical evidence portfolio due a week after the SIM clinic.
v)She assessed all of the SIM clinic portfolios and Dao (along with about one third of the students) did not meet the course requirements. Dao’s assessments were then moderated by Helen Southwood (Southwood) who agreed with her assessments.
vi)A meeting was then arranged with Dao for 16 February 2024. She provided feedback to Dao and at the meeting, Dao did not raise with her any of the complaints of discrimination or any other general complaints.
vii)On 20 February 2024, Dao requested additional time to resubmit her assessment, and an extension was given until the end of the following week. Following the resubmission, Dao was assessed as having met the unit requirements.
viii)The next assessment requirement was the submission of a written assessment plan and a video demonstration. This was a must pass assessment. The marking tool in Canvas is Speedgrader which utilizes an anonymous marking function. The assessment did not include the student’s name. After reviewing the written work, she would review the video assessment because it was only at this point that a student could be identified. The applicant did not pass the written assessment plan but did pass the video assessment. A number of other students were also assessed as not meeting the assessment requirements. She provided feedback to Dao and the students. Southwood then moderated the student marks. It was her understanding that Southwood conducted a “blind moderation.” This meant that students were allocated randomly generated student numbers. As a result, students were not able to be identified by their usual student number. Southwood agreed with her assessments. Extensive feedback was then given to Dao and other students. Dao was permitted to resubmit her assessment and Dao was again assessed as not meeting the course requirements. Further feedback was given to Dao and other students. Dao was unfortunately not aware of the original feedback and she then was shown how to access the feedback. In order to assist Dao, she communicated with the Discipline Lead, McKechnie. McKechnie permitted the applicant a second resubmission. In communications prior to the now third submission of the assessment, Dao sought further feedback and this was provided. Hanley again used Speedgrader and again Dao was assessed as not meeting the course requirements. She arranged for the assessment to be blind moderated and her assessment was confirmed. On 28 April 2024, she met with Dao and explained her reasons for the assessment and encouraged Dao to continue with the unit. For one of the assessments Dao was granted an extension and although some assessments were passed, her end placement at the SIM clinic was not. That assessment was made by the clinical educator supervising the placement.[41]
[41] Exhibit 1 Agreed Bundle, at page 26 Statement of Leah Hanley dated 5 May 2025 at [1]-[11]
d) For Special Topics she referred to the assessment items completed by the applicant and said:
i)Although she was not the course convenor, she taught a component of a unit in the course. The component that she taught had clinically appraised topic and case assignment and two quizzes. She assessed both quizzes and passed Dao. However, Dao and some other students did not meet the unit requirements for the clinically appraised topic and case assignment. Again, the written assessments were marked blind using Speedgrader. Dao’s assignment was again moderated and her assessment of the Dao’s work was confirmed. Following the communication of the results, Dao requested a meeting. On 20 June 2024, a meeting took place and during the meeting Dao did not make any allegation of discrimination. Following the meeting, there were further communications with Dao, and as a result, she manually corrected Dao’s mark to pass as a late penalty had been incorrectly applied.[42]
e) She also gave evidence concerning Dao’s grievance and appeal as well as other issues raised by her. Generally, that evidence will be referred to where relevant in the consideration and findings below. However, Hanley said:
i)That prior to the applicant submitting her grievance to UC that she was not aware of any comments that the applicant may have made on the student online discussion board. Further, she did not teach or have any involvement in Specialist Communications. In so far as any allegation that she discriminated against the applicant on the grounds that the applicant had a PhD, she said that she was not aware of the applicant’s prior study and that she did not know in what field the doctorate was in or from where it had been conferred. She also said that there are many students in the Masters Course and that by early 2024, she was near completion of her own doctorate. She said that speech pathology is heavily female dominated; that postgraduate study attracts a variety of students including international students from various backgrounds and ages and denied treating the applicant unfavourably because of any of these attributes. She stressed that the marks awarded to the applicant including that for any role playing component were solely due to the academic quality of her work and whether the applicant had demonstrated sufficient knowledge of the subject matter to achieve a pass.[43]
[42] Exhibit 1 Agreed Bundle, at page 26 Statement of Leah Hanley dated 5 May 2025 at [40]-[45]
[43] Exhibit 1 Agreed Bundle, at page26 Statement of Leah Hanley dated 5 May 2025 at [61]-[68]
41.In cross- examination or in response to questions from me, Hanley gave evidence as follows:
a) Her doctorate was conferred in June 2024 and her graduation took place in October 2024.
b) When asked about the SIM clinic held in February 2024 and whether she recalled remembering the moment when Dao “froze” she said that she did not.[44].
[44] Transcript 23 May 2025 at pages 119-121
c) In response to the applicant’s question concerning the marking of the assessment and that the session plan included the student number and that this meant that they could identify students and therefore it was not marked “blindly”, said that she did not know if the student number was there or not as she did not check for it. She also said that because they mark in Speedgrader (which was integrated into Canvas), she activated an “anonymous” setting so the students were identified as “student 1, student 2, student 3 …or whatever.” The identifiers are randomly generated and they are not presented in numerical order. She also said that she marks the written work first as the video component will identify the student. With regards to the student number, she said that it appears on the document because the student puts the number on it when the document is uploaded but they mark anonymously as she previously explained.[45] Further, she stated they do not ordinarily use student numbers to identify students, but if they need to report on a student, for example, to faculty board where students have failed a unit, they only then look up the student name and the student number. The students do not have to put their name or number on the assessment and Canvas automatically releases the grade that was attached to that marking and that assignment.[46]
d) She disagreed that the meeting held with Dao on 16 February 2024 that it was about Dao’s learning plan and not the SIM clinic feedback.[47]
e) Concerning her manual adjustment of the grade from a fail to a pass, she conceded that her communication could have been more effective.[48]
Jolin Edmondson
[45] Transcript 23 May 2025 at pages 12125
[46] Transcript 23 May 2025 at page126
[47] Transcript 23 May 2025 at page 129
[48] Transcript 23 May 2025 at page 132
42.In summary, Edmondson gave evidence in accordance with her statement dated 4 May 2025 and said:
a) She completed a Bachelor of Science in Linguistics and Psychological Studies in 2012 and completed her honours year in 2013 achieving first class honours in Linguistics at the University of Western Australia. She completed a Master of Speech Pathology at Curtin University. Thereafter she worked as a speech pathologist in both private and community health practices. In March 2021, she commenced working part time at UC, eventually as a lecturer. In August 2024 she resigned and returned to Western Australia. Around this time she commenced a casual academic appointment at UC and taught the Justice and Mental Health module in Special Topics during semester 1, 2025.[49]
[49] Exhibit 1 Agreed Bundle, at page 138 Statement of Jolin Edmondson dated 4 May 2025 at [1]-[5]
b) In relation to unit 10272 Clinical Speech Pathology, she said:
i)She was the unit convenor in semester two 2022 when Dao was enrolled as a student. There were four assessment items for the unit and she marked each of the assessment items, including for Dao. The first and second assignments were written assignments and Dao passed both. The third assessment was a “must pass” clinical evidence portfolio and Dao again passed. The fourth assessment item was an observation booklet which was also a “must pass” and Dao again passed. As a result Dao passed the unit. During semester 2 2022, Dao was also enrolled in Unit 10269-Speech and Language Disorders-Paediatrics. McKechnie was the course convenor and lecturer. During the teaching of the course, McKechnie asked Edmondson to moderate some assignments where the students had not met the unit requirement. She now understands that one of the requests for moderation involved an assignment submitted by Dao. Speedgrader software was used when marking so students could not be identified. She agreed with the fail grade awarded to Dao. For various reasons, including McKechnie’s unavailability, she attended a meeting with Dao.[50]
[50] Exhibit 1 Agreed Bundle, at page 138 Statement of Jolin Edmondson dated 4 May 2025 at [6]-[15]
c) In relation to Special Topics, she said:
i)She was the unit convenor and one of the teachers during semester 1, 2024 and Dao was a student in the course. The course is in two modules and she taught one module and Hanley taught the other module. The course had four quizzes, and two case studies. Each of the case studies was a “must pass” component.
ii)The first two quizzes were marked using Speedgrader. If a student did not pass, their answers were moderated by Hanley. The applicant did not pass the first quiz and Hanley moderated the quiz mark and Hanley confirmed the fail. Prior to releasing the results, she informed the students in general terms regarding the results. On 8 March 2024, Dao emailed her seeking “some educational example of exactly how to answer the questions in the quiz”. At the time, Edmondson was on leave and an automated “out of office” reply was sent to Dao. Dao then emailed her on 12 March 2024 disputing her result and alleging that it had caused her “psychological harm” and that the result was “punishment or retaliation … because of some feedback of the unit that was unfavourable to you.” After returning from leave on 13 March 2024, she read Dao’s email but did not comprehend what “feedback” Dao was referring to. She emailed Dao confirming the “blind” marking of the quizzes and the blind moderation and invited Dao to have a meeting with her. Dao did not respond to her invitation.[51]
[51] Exhibit 1 Agreed Bundle, at page 138 Statement of Jolin Edmondson dated 4 May 2025 at [21]-[28]
iii)The second quiz was marked on 13 March 2024, again using Speedgrader and Dao passed and was provided feedback[52]
[52] Exhibit 1 Agreed Bundle, at page 138 Statement of Jolin Edmondson dated 4 May 2025 at [ 29]
iv)The third assessment was a case study which had a written and a video component. Due to multiple components of the assessment, the written components were marked first utilizing Speedgrader and thereafter the video component was marked. The fail results for the assessment were then moderated by Hanley using Speedgrader. Hanley agreed that Dao had failed the third assessment. The results were then posted and students were invited to have a meeting with her. Given the assessment was a “must pass,” Dao was invited to resubmit and she had a meeting with Dao on 12 April 2024. During the meeting, Dao became “combative” and said that Edmondson was not a good teacher, the feedback was not helpful and that Edmondson was not good at her job. During the meeting, Dao asserted that Edmondson had been failing her since 2022 but did not make any allegation of discrimination. Dao’s assessment was resubmitted and was marked by Leah McManus (McManus). McManus graded the assessment as a fail. McMannus communicated the fail to Dao.[53]
d) Edmondson also gave evidence concerning other issues raised by Dao. She said that:
i)Concerning the allegation by Dao that she had referred to a non-existent academic paper, she said that she disclosed to the students that it was an unpublished student research paper and that she had mentored the student in 2022. She also said that reference to unpublished work in similar circumstances is not uncommon. By the time Dao had complained to the respondent and sought details of the paper, she had left the respondent’s employ.[54]
ii)In relation to Dao’s allegation that she only began failing units after she had participated in an online student discussion board in Specialist Communications in semester one 2022, Edmondson said that she did not mark or moderate any assessment items for the unit and had no access to comments made by students enrolled in the course in that semester. She was unaware of any postings by Dao and had no relevant discussions with her fellow staff in any unit in the course regarding any posted comment.[55]
iii)She denied treating Dao unfavourably on any of the protected attributes or at all. The marks awarded to Dao were based wholly on her assessments of the academic quality of Dao’s work.
iv)Concerning Dao’s PhD, she said that prior to this claim that she was unaware in what discipline Dao had a doctorate or where it had been conferred. She was aware that some students including Dao had PhDs.
v)Concerning the allegation that Dao was discriminated against because of her gender, age, or race, she said that speech pathology is a female dominated profession, that she did not know Dao’s age and that there are significant percentage of international students in the course.[56]
[53] Exhibit 1 Agreed Bundle, at page 138 Statement of Jolin Edmondson dated 4 May 2025 at [30]-[41]
[54] Exhibit 1 Agreed Bundle, at page 138 Statement of Jolin Edmondson dated 4 May 2025 at [45]-[46]
[55] Exhibit 1 Agreed Bundle, at page 138 Statement of Jolin Edmondson dated 4 May 2025 at [47]-[49]
[56] Exhibit 1 Agreed Bundle, at page 138 Statement of Jolin Edmondson dated 4 May 2025 at [51]-[53]
43.In cross examination or in response to questions from me, Edmonson said:
a) Her module in the Justice and Mental Health course in 2024 was taught on an intensive basis over three weeks and included prerecorded lectures and three workshops. The workshops were not recorded and she did not take notes at the workshops. However, she was adamant that she mentioned that the article was not published during the lectures and in a workshop.[57]
[57] Transcript 23 May 2025 at pages 138-144
b) She did not recall that when she had a conversation with Southwood, whether Southwood mentioned that there were a few students in the course with PhDs and that the applicant was one of them.[58]
[58] Transcript 23 May 2025 at page 147
Submissions including applicant’s responses to statements filed by the respondent
Applicant’s response dated 12 May 2025 to the statement of Leah Hanley
44.The applicant stated that:
a) When she lodged her formal complaint in June 2024, Hanley’s PhD had not been conferred and was only conferred in December 2024.
b) Hanley’s account of the meeting with her on 16 February 2024 was “not true”.
c) Hanley did not provide any feedback to her between 8 and 22 February 2024.
d) Concerning the moderation of her written work, it was not “blind” as her student number was visible and she had a distinctive student number.
e) In the placement in April 2024, she was receiving positive feedback from the clinician but this became negative following Hanley’s communication with the clinician.
f) In Special Topics, although Hanley said that she had marked the applicant as passing two quizzes, the quizzes were marked by a computer and when her assessments were marked by Hanley or Edmonson she failed.
g) In 2022 when she enrolled in Specialist Communication, some assessments were marked by Southwood. When her assessments were marked by visiting academics from other universities she passed and when the assessments were marked by Southwood she failed. Although she passed on a resubmission, Southwood because she was the most senior academic in the Masters Course, she influenced other staff members. In the SIM role play, other students from previous years had encountered similar issues and other students in her year who had resubmitted assessments passed but she did not.[59]
Applicant’s response dated 12 May 2025 to the statement of Jolin Edmondson
[59] Exhibit 1 Agreed Bundle of Documents, attachment 7
45.The applicant stated that:
a) assessments were not marked “blind” and that she had a distinctive student number so she was easily identified;
b) she was critical of the delay in receiving feedback from Edmondson;
c) she disagreed with Edmondson’s account of the meeting on 12 April 2024 and denied that she was “combative” and denied the statements attributed to her and said that Edmonson had engaged in “psychological abuse”;
d) she did not want to engage with Edmondson because she wanted an “external, independent reviewer”;
e) In response to Edmondson stating that she (Edmondson) had at a number of workshops said that the work was “unpublished” said that she did not recall the statement and in any event, it should have been stated in the first recorded lecture when the slide was shown and not in an unrecorded workshop;
f) She said that Edmondson made contradictory statements in relation to whether she had access to her UC emails during a period in which she was not employed by UC and/or since her return to casual employment there;
g) Argued that the above issues challenged the credibility of Edmondson.
Respondent’s submissions dated 5 May 2025
46.The respondent made the following submissions:
a) Although the applicant claimed that she was subjected to direct discrimination because of her protected attributes of race, sex, age, and profession, trade, occupation or calling, in her evidence and in the material she filed with the Tribunal, she has asserted other reasons that are unrelated to any of the protected attributes. The respondent denies the applicant’s allegations regarding the reasons that she failed the relevant assignments, and argued that the reason Dao failed was because she did not meet the academic standard to pass.[60]
[60] Respondent’s written submissions dated 5 May 2025 at {1]-[4]
b) The onus is upon Dao to establish unfavourable treatment because of a protected attribute. At its highest, section 18(2)(c) of the Discrimination Act, makes it unlawful for an educational authority to discriminate against a student by subjecting the student to “any other detriment”. Although the applicant complains that she would have an unfavourable academic record and not be able to complete the course and obtain Speech Pathology qualifications, she has not been prevented from completing the course and obtaining the qualification and is able to re-enrol in both Special Topics and Professional Practice and complete her Masters Degree.[61]
[61] Respondent’s written submissions dated 5 May 2025 at [20-[23]
c) The “unfavourable treatment” that the applicant complains of, are the marks that she obtained from Edmondson in Special Topics and Hanely in Professional Practice. Pursuant to section 53CA(2)(a)(i) of the HRC Act, the applicant has the onus of establishing that the treatment is “unfavourable.” The HRC Act does not define what unfavourable treatment is, and following Kidman v Casino Canberra Ltd,[62] the test is objective and requires an examination of the reasons for the unfavourable treatment and whether it is because of the (protected) attributes that they possess.[63] Referring to Pojohishgar, the respondent submitted that the claim was brought by a student in somewhat similar circumstances to the present application. In Pojohishgar, the student had failed two law subjects and the work was then independently moderated and the failure was confirmed. The student brought a discrimination claim, alleging that he was treated unfavourably, because of his protected attribute of race. The student was unable to present academic evidence that showed his marks were outside of an expected range that could be explained on the grounds of differences in academic judgement. Absent such evidence, Pojohishgar was unable to show that he was treated unfavourably by his examiner. The respondent said that the applicant was in the same position as Pojohishgar, and because she had not served any evidence from a suitable qualified independent expert to show that her marks were outside the range, she had not been able to show that she has been treated unfavourably.[64]
[62] [2020] ACAT 50
[63]Respondent’s submissions dated 5 May 2025 at [24]-[29 }; referring to Pojohishgar at [2022] ACAT 53 at [44]
[64] Respondent’s written submissions dated 5 May 2025 at [30]-[32]
d) That even if the applicant was able to establish that she had been treated unfavourably by the respondent, the applicant has not been able to present objective evidence that would allow the Tribunal to decide that in the absence of any other explanation, that the treatment was because of one or more protected attributes.[65] Indeed, on the applicant’s own evidence, she attributed the unfavourable treatment because of her participation or actions in an online discussion board in 2022 and even in her responses in the Questionnaire, she had attributed the motivation for the fail marks due to interactions with Edmondson including her allegation of academic misconduct by Edmondson relating to Edmondson referencing non-existent academic work and with Hanley’s delay in giving online feedback and following mark correction or amendment.[66] At its highest, the only connection to an attribute is the applicant’s claim that her having a PhD from the ANU is the cause of the issue and that this in some way caused “psychological” reactions by Hanley and Edmondson.[67]
[65]Respondent’s written submissions dated 5 May 2025 at [30]
[66] Respondent’s written submissions dated 5 May 2025 at [33]-[37]
[67] Respondent’s written submissions dated 5 May 2025 at [38]
e) That the applicant’s complaint based upon her race, sex and age is no higher than a statement of opinion, and there is no objective or corroborative evidence to substantiate the applicant’s complaint.[68]
[68] Respondent’s written submissions dated 5 May 2025 at [39]
f) The respondent referred to the applicant’s assertion that the “cause of the issue” is her having a PhD and said that academic qualification as a doctorate is not of itself a “profession, trade, occupation or calling” within the meaning of section 7(1)(b) of the Discrimination Act. The respondent referred to the relevant initial reading of the then bill in the ACT Legislative Assembly on 15 December 1993 and some earlier decisions of the tribunal where the issue was discussed, with the respondent concluding that the holding of a PhD alone would not fall within the provisions.[69]
[69] Respondent’s written submissions dated 5 May 2025 at [40]-[41]
g) In the event that the Tribunal was to find that the applicant met the requirements of section 53CA(2)(a)(i) and (b)(ii) of the HRC Act, it gives rise to a rebuttable presumption that discrimination has occurred. The respondent contended that the evidence of Hanley and Edmonson both individually and collectively was sufficient to rebut the presumption.[70]
h) The respondent concluded that there were other aspects of the evidence of the applicant that were inconsistent and referred to the “complaint trial” and that the applicant made no complaint of discrimination in her student grievance or in her appeal from the grievance and that it was only in her complaint to the HRC that she first raised a complaint of discrimination.[71]
i) The applicant has failed to establish that she has been treated unfavourably because of a protected attribute and the appropriate order for the Tribunal to make is to dismiss the application.[72]
Applicant’s written submissions in reply dated 12 May 2025
[70] Respondent’s written submissions dated 5 May 2025 at[42]-[50]
[71] Respondent’s written submissions dated 5 May 2025 at [52]-[60]
[72] Respondent’s written submissions dated 5 May 2025 at [61]
47.Dao distinguished her circumstances from that of the student in Pojohishgar primarily upon the basis that unlike the student in that case, she had gone to considerable lengths to obtain expert opinion but despite her efforts she had been unsuccessful. She also submitted that unlike the student in Pojohishgar, she had the support of her fellow students. Dao also said that her circumstances were different as she had a significant history of unfavourable treatment, whereas the student in Pojohishgar did not. Finally, she argued that her situation was different because she made a complaint of dishonesty or issues of academic integrity or professionalism on the part of the teaching staff, whereas the student in Pojohishgar did not.[73]
Applicant’s oral submissions at the hearing
[73] Applicant’s written submissions in reply dated 12 May 2025 at [5]
48.The respondent should conduct an independent review of her work and although it was her responsibility to “establish the evidence,” she had done everything she could to do so and that as a result, the onus of proof should shift to the respondent.[74] The “turning point” was in 2022 when she first began to fail units in the course[75] and the appropriate remedy is to have an external independent review.[76]
Respondent’s oral submissions at the hearing
[74] Transcript 23 May 2025 at page 151-152
[75] Transcript 23 May 2025 at page 152
[76] Transcript 23 May 2025 at page 152
49.The respondent referred to their submissions made concerning the interlocutory dismissal application made on the first day of hearing. In relation to the need for the applicant to establish causation, the respondent referred to Complaint 201931 Australian Capital Territory[77] (Complaint 201931). The respondent said that at no stage prior to 8 October 2024 did Dao make any complaint or allegation that she was discriminated against in the results given to her on the basis of any of the protected attributes. At its highest, there is an allegation, but there is no objective evidence that would elevate the applicant’s claim beyond a “speculative statement.”[78]
[77] [2021] ACAT 9
[78] Transcript 23 May 2025 at pages156-157
50.The unchallenged evidence is that the applicant failed the assignments because the applicant did not meet the academic requirements to pass. As a result, the applicant must fail at the first hurdle in her claim of discrimination. Even if Dao meets the first hurdle, it is a rebuttable presumption only that she has been discriminated against, and that the respondent has effectively rebutted the presumption. The marking and moderation were all done “blindly”. Even if students affixed their student number, staff could not possibly remember student numbers as there were over 80 students in the Master’s Course. Students were deidentified and random numbers given. On one assignment failed by Hanley, Dao had erroneously recorded an incorrect student number, so even if student numbers were not deidentified, Hanley could not have been influenced by the student number as it was incorrect.[79]
[79] Transcript 23 May 2025 at page157-158
51.In relation to whether the obtaining of a PhD and even more so, a PhD from the ANU can amount to a protected attribute of occupation , trade, profession or calling, the respondent referred in detail to the Hansard Debates that accompanied the second reading speech pertaining to the relevant amendment bill to the Discrimination Act, introducing as a protected attribute, “profession, trade, occupation or calling.” The respondent argued that it was clear from the Hansard transcript that academic qualification did not fall within any of the examples provided at that time. In any event, the applicant was arguing that it was due to an ANU qualification, and this made it even more removed from the intention of the amending legislation.[80]
[80] Transcript 23 May 2025 at pages158-162
52.The respondent referred to Complaint 201931 and said, that this was the only case that he could locate in which the relevant attribute was not about somebody in an actual occupation or paid employment. In that case the complainant was an advocate for the Serbian Orthodox Church which was described as a “calling” as an advocate and spokesperson for their community.[81]
Consideration and findings
[81] Transcript 23 May 2025 at page163
53.There was no doubt that the applicant believes strongly in the rightfulness of her case that she has been unlawfully directly discriminated against and treated unfairly by the respondent. However, believing strongly that one has been unlawfully discriminated against does not mean that an applicant will necessarily succeed in the complex area of discrimination law.
54.Section 18(2) of the Discrimination Act makes it unlawful for an educational authority to discriminate against a student by denying the student access, or limiting the student’s access, to any benefit provided by the authority or by expelling the student or by subjecting the student to any other detriment. It is not in issue that the respondent is an educational authority within the meaning of the section.
55.Although Dao did not specify which subsection of section 18(2) that she relies upon, the Tribunal agrees with the respondent’s submission that subsection 18(2)(c) would apply to the circumstances alleged by the applicant. That section makes it unlawful for an educational authority to discriminate against a student by subjecting them “to any other detriment.” The onus is upon the applicant and she has to prove her case on the balance of probabilities.[82]
Was the applicant subjected to a detriment under section 18 of the Discrimination Act?
[82] Mr M v B [2017] ACAT 14, at [44]
56.The applicant says that the alleged detriment was her inability to complete the course, practice as a speech pathologist, her physical and psychological injury, negative impact to her reputation and financial loss. The respondent denies that there has been any detriment and argued that the applicant can continue with her degree and can re-enrol in both Professional Practice and Special Topics.
57.Failing an assignment and/or failing a course can have very significant outcomes for a student. The failure may give rise to significant reputational, economic and psychological consequences. However, failing by itself does not mean that the student has been subjected to a detriment.
58.The Tribunal accepts there has been a significant impact upon the applicant as a result of her failing the “must pass” assignments and in turn the units in the course. The applicant provided supportive material from her medical practitioner Dr French and from her psychologist Mr Sutherland.[83] The respondent did not argue that there had not been health impacts upon the applicant. The Tribunal accepts the evidence of the applicant and of Dr French and Mr Sutherland on this point. However, the applicant has to establish that the respondent has discriminated against her.
Did the respondent discriminate against the applicant?
[83] Exhibit 1 Agreed Bundle of Documents, attachments 5 and 4
59.In order to determine whether the respondent has discriminated against the applicant, I need to consider the operation of both section 8(2) of the Discrimination Act concerning the meaning of direct discrimination and section 53CA of the HRC Act as to how discrimination complaints are made and responses determined when considering the applicant’s claim of unlawful discrimination. This becomes further complicated when the “rebuttable presumption” provided by section 53CA(3)(a) of the HRC Act is considered.
The meaning of Direct Discrimination
Rebuttable presumption under section 53CA of the HRC Act
Does the rebuttable presumption arise under section 53CA(2) of the HRC Act?
60.Section 53CA(2) of the HRC Act provides that it is a “rebuttable presumption” that direct discrimination has occurred if the complainant establishes that the treatment or proposed treatment is “unfavourable”. The onus of establishing the discrimination rests upon the applicant and the requisite standard is on the balance of probabilities. If the applicant can do that on the balance of probabilities, it is only then that the onus shifts to the respondent to rebut the presumption on the balance of probabilities of unlawful discrimination. This presumption arises under section 53CA(2)(a) if the applicant establishes that the treatment is unfavourable. Although the Tribunal accepts that Dao has gone to considerable lengths to obtain evidence from suitably qualified independent academics that expressed the opinion that the marks awarded to her by Hanley or Edmondson were outside the range that could be explained on the grounds of differences in academic judgement, she has not been able to do so.
61.Dao argued that because she had tried to obtain the evidence the onus of proof should then shift to the respondent. With respect to the applicant, the onus of obtaining the evidence remains upon her until she can establish that she has been treated unfavourably. It is only then that the onus shifts to the respondent in seeking to rebut the presumption of discrimination.
62.If she had obtained the evidence, then the respondent may have sought further evidence to counter her evidence, but that eventuality has not occurred. The applicant argued that other students supported her position, but no evidence of the support was provided. Even if Dao had been able to provide evidence of student support, it would carry little, if any weight, as fellow students would not be regarded as an independent witnesses and more importantly, they would not be regarded as expert witnesses.
63.Dao had the opportunity of cross examining both Hanley and Edmondson. Both Hanley and Edmondson were clear and unequivocal that Dao did not pass the assessments because she did not meet the required standards either on the original submission of the work or on re-submission.
64.The applicant sought to distinguish Pojohishgar on the basis that she had a significant history of unfair treatment. In my view, the applicant did not establish any history of unfair treatment. To the contrary, Hanley and Edmondson had passed her work on previous occasions, had communicated and met with her when she resubmitted assessments and on one occasion had facilitated Dao being allowed to resubmit an assignment on a third occasion.
65.I accept the evidence of both Hanley and Edmondson that Dao was assessed the same as other students and that Dao did not meet the academic requirements of the assessments to pass. They explained in detail the marking of assessments, marking rubrics and, where necessary, moderation of marks. They elaborated upon the systems in place to ensure that students were deidentified when assessments were marked or moderated by other academics. This evidence countered the applicant’s argument that she had been identified by her unique student number. The applicant was afforded the opportunity to resubmit assignments, and as previously mentioned, to resubmit an assignment twice which was more than what was normally permitted, as evidenced by the unit outlines. Both Hanley and Edmondson provided feedback to Dao and other students and where possible met with the applicant to discuss her work.
66.In my view, the respondent’s evidence establishes that any alleged unfavourable treatment alleged by the applicant, that is, the fail marks awarded to her in the assessments and units only occurred because it was determined by each of the markers that the work submitted by the applicant did not meet the academic standard to receive a pass grade.
67.For the reasons set out above, the Tribunal is satisfied that the applicant has failed to establish the elements that section 53CA(2) of the HRC Act in relation to any of her complaints of direct discrimination, so as to give rise to a rebuttable presumption that discrimination has occurred.
68.However, if my finding is incorrect, and Dao’s treatment was unfavourable, then I am required by section 53CA(3) of the HRC Act to consider whether the respondent has established that the treatment was not because of a protected attribute and thereby rebut the applicant’s complaint of direct discrimination.
Has the respondent rebutted the presumption under s53(3) of the HRC Act?
69.Pursuant to section 53CA(3)(a) of the HRC Act, the presumption is rebutted if the respondent establishes that the unfavourable treatment did not occur because of a protected attribute of the applicant.
70.I accept the submissions made by the respondent and find that the alleged unfavourable treatment did not occur because of a protected attribute of the applicant. In my view the applicant did not pass the assessments because she did not meet the necessary academic standard. I have already referred to the evidence of Hanley and Edmondson and I have accepted their evidence.
71.In cross examination of Hanley by the applicant, Hanley was asked a number of questions about the conferring of Hanley’s PhD; about the SIM intensive in 2022; the marking process and deidentifying of students; and assignment feedback. Edmondson was asked about the reference to the “disputed’ article from a 2024 workshop; Edmondson’s access to email; and conversations about students with PhDs.
72.Both Hanley and Edmondson responded to the questions as best as they could and made concessions where appropriate. The Tribunal is satisfied that the applicant’s work was deidentified when assessed and that as a result they did not know the identity of the applicant when assessing her work and to the extent it was necessary, met with the applicant and provided appropriate feedback. The Tribunal is also satisfied that at no time whilst they were interacting with the applicant did the applicant make any complaint of discrimination.
73.The Tribunal also has considered the documents relating to the applicant’s student grievance and the appeal and notes that at no time prior to the filing of the application in the HRC did the applicant make an allegation that Hanley, Edmondson or the respondent were discriminating against her based upon the attributes that she now relies upon in her application. There may be reasons for this, but it significantly weakened the applicant’s claim that she did not in her written statement, oral evidence or in her final submissions attempt to provide any explanation as to why this was so.
74.It may have been possible for the applicant to extract some supporting evidence from Hanley and/or Edmondson in cross examination. The marking regime was discussed at length during the hearing including where necessary, moderation and cross marking. It was clear that the respondent had in place systems that ensured that students were not able to be identified in their submitted work. Where work included a video of a student in a clinical situation, the video was marked after the marking of written work to ensure that there was no possibility that the marker had seen the video and thereby identified a student prior to marking their written work.
75.Therefore on the assumption that the rebuttable presumption arises under section 53CA(2), I find that the respondent has rebutted the presumption pursuant to section 53CA(3) of the HRC Act.
Was the applicant treated unfavourably because of a protected attribute?
76.Under Section 8(2) of the Discrimination Act direct discrimination, has two limbs. The first requires the complainant to prove that there has been “unfavourable treatment” and the second relates to causation. To satisfy the second limb the complainant must prove that the unfavourable treatment was “because” the person has one or more of the protected attributes. Both limbs can be equally contentious and the second can be difficult to establish. Claimants may be able to establish that they have been treated unfavourably, but they may be unable to show that it was because of a protected attribute.
Was the applicant treated unfavourably?
77.The first limb of section 8(2) of the Discrimination Act requires the applicant to establish that they have been treated unfavourably. For the reasons given above and my findings that the rebuttable presumption did not arise, because the applicant did not establish that her treatment was unfavourable, I further find for the purposes of section 8(2) of the Discrimination Act the respondent has not treated the applicant unfavourably. If I am in error on that finding, or if I had found that Dao had been treated unfavourably, then she would still have to show on the balance of probabilities that it was because of a protected attribute.
78.In relation to the first limb, determining whether Dao was treated unfavourably is a question of fact for the Tribunal to determine, and it is an objective test rather than a comparative test.[84]
[84] Kidman v Casino Canberra [2020] ACAT 50 at [22]
79.In Applicant 202024 v The Australian Capital Territory (Represented by Access Canberra) (Applicant 202024), the tribunal after considering earlier formulations of “unfair treatment” said:
…unfavourable treatment is treatment that is adverse to the applicant or causes loss, damage or injury. This includes mental injury, embarrassment, and distress. It is broad enough to cover any disadvantage, so long as it is real and not illusory.[85]
Was the treatment because of a protected attribute?
[85] [2021] ACAT 14 at [112]
80.I further find that Dao has not proved that her treatment was because of a protected attribute. Dao argued that her treatment was because of her protected attributes of a PhD from ANU, her race, sex and age. The respondent argued that she had failed because she did not meet the necessary academic standards of passing the assessments and the units.
81.In Applicant 202024, the tribunal said:
To establish causation in direct discrimination, the applicant must establish the real reason or true basis for the identified unfavourable treatment was [the protected attributes], and this must be done via objective evidence. He must do this on the balance of probabilities.[86]
[86] Applicant 202024 at [114}
82.Dao must show that the respondent has treated or proposes to treat her unfavourably because of one or more of her protected attributes. As in Pojohishgar, Dao spent considerable time in setting out how she had been treated rather than seeking to establish why she had been treated that way. In the absence of such evidence, Dao is unable to establish that she has been treated unfavourably because of her protected attributes.
83.An issue for the applicant is her history of complaints and reviews internally with the respondent and in the presentation of her claim in the tribunal. For example, in her evidence, she emphasised that she commenced receiving fail grades from the end of semester one in 2022 following her post on a student discussion board. In her Questionnaire response, she stated that the motivation for the giving of a fail was “academic misconduct” by both Hanley and Edmondson. She went on to refer to her having a PhD whereas Hanley and Edmonson did not and that she was “non white, female and old”.
84.As discussed previously, the applicant now withdraws the allegation of misconduct. But even if academic misconduct is replaced by academic judgement, in my view it does not assist her claim. Dao has made assertions concerning her race, sex and age but they are nothing more than that. She offered no evidence in support and her assertions were contrary to the evidence of Hanley and Edmondson. I am persuaded by the evidence led by the respondent about the deidentification of students during marking and moderation. I also accept that there were other students in the course with a PhD and also older students from a variety of backgrounds including international students, and that many if not most of the students were female. The respondent made extensive submissions on this point and particularly whether having a PhD does not of itself fall within the meaning of section 7(1)(b) of the Discrimination Act. I accept those submissions.
85.In cross examination, the applicant could not obtain any concession from either Hanley or Edmondson that her treatment was because of a protected attribute and indeed such an assertion was explicitly denied.
86.I therefore find that Dao was not treated unfavourably and any treatment she received was not because of a protected attribute.
87.It therefore follows that Dao’s claim must be dismissed.
Conclusion
88.The application is dismissed.
……………………………..
Senior Member W Hawkins
Date(s) of hearing: 22 and 23 May 2025
Applicant:In person
Solicitors for the Respondent: Danny Kynaston, King and Wood Mallesons
Date(s) of hearing: 22 and 23 May 2025
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