Davies v University of Wollongong

[2020] NSWCATAD 13

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Davies v University of Wollongong [2020] NSWCATAD 13
Hearing dates:	03 December 2019
Date of orders:	09 January 2020
Decision date:	09 January 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Scahill, Senior Member
Decision:	(1) Leave to proceed is refused under section 96 Anti-Discrimination Act 1977.
Catchwords:	EQUAL OPPORTUNITY - leave required for complaint to proceed - principles applying to grant of leave EQUAL OPPORTUNITY - disability and race discrimination in education
Legislation Cited:	Anti-Discrimination Act 1977 NSW
Cases Cited:	Jones & Anor v Ekermawi [2009] NSWCA 388 Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143
Category:	Principal judgment
Parties:	Blaan Davies (Applicant) University of Wollongong (Respondent)
Representation:	Solicitors: Self Represented (Applicant) Mr Murphy (Respondent)
File Number(s):	2019/00341618
Publication restriction:	N/A

REASONS FOR DECISION

1. Mr Davies is a Yuin man from the Wollongong – South Coast area of New South Wales. He has committed himself to a future of leadership within the Aboriginal community. As part of this, he wishes to undertake university studies. Mr Davies was enrolled in the University Access Program, UAP at University of Wollongong in preparation for applying to enrol in degree courses over a period of 3 years. He has not progressed to enrolment in degree courses.

2. Mr Davies has applied for leave to proceed with a complaint of race and disability discrimination in education against the University of Wollongong. The complaint was declined by the President of the Anti-Discrimination Board (ADB) on the basis that it was lacking in substance. Mr Davies requested that the President of the ADB refer the complaint to the Tribunal. Section 96 of the Anti-Discrimination Act 1977 (ADA) requires that when the President of the ADB declines a complaint, the complainant must obtain the leave of the Tribunal to proceed.

Background

Mr Davies’ complaint

Race discrimination

3. On 4 February 2019, Mr Davies lodged a complaint with the President of the Anti-Discrimination Board (the President) alleging that he had been discriminated against by the University of Wollongong in the area of education, on the grounds of race and disability. Mr Davies alleged that the Respondent had discriminated against him on the grounds of his race by presuming that his Aboriginality made him less able to complete his university studies than non-Aboriginal students, leading to him being placed on “Exclusion status”. Mr Davies also alleged that staff at Woolyungah Indigenous Centre lacked knowledge of local Aboriginal communities and failed to assist him to continue his studies.

Disability Discrimination

4. Mr Davies’ complaint of disability discrimination was that the Respondent:

• failed to make reasonable adjustments to accommodate his thumb injury;

• presumed that he had a mental health disability;

• refused to provide him with student support via disability services; and

• placed him on “Exclusion status”;

5. Mr Davies alleged that:

• he was patronised and humiliated by University of Wollongong student support manager, Ms Tracey Todd, after his disclosure of self-harm;

• he was advised by the academic program manager Dr Henry Lee, that he would require a satisfactory psychological assessment in order to return to his studies.

6. Mr Davies replied to the Respondent’s response to the President of the ADB. He stated that he believed the response was unfair because the named individuals had not provided their own responses and that acting senior manager Danielle O’Doherty had been biased against him and that her reply was false and misleading. On that basis, he chose not to respond to the Respondent’s response to the President.

Mr Davies’ submissions on why leave should be granted

7. Mr Davies told the Tribunal that it was fair and just for him to be granted leave to proceed. He emphasised the race and disability bases of his complaint. He considered that the University had gone beyond any duty of care in telling him to take leave of absence and to work on his health.

The Respondent’s response to the complaint

Race discrimination

8. The Respondent denied that the staff of Woolyungah Indigenous Centre lacked knowledge of local Aboriginal communities and that they had failed to assist Mr Davies to continue his studies. The Respondent stated that:

• the centre is staffed by Aboriginal people who live in the area and who regularly engage with the Elders, Aboriginal organisations and traditional custodians in the local community, and who regularly engage in events with the local community;

• many staff had worked previously with other local community organisations;

• Mr Davies’ main contact and support person at the Centre had been a local Yuin woman; and

• the centre provided Mr Davies with extensive services to enable him to continue his studies.

9. Mr Davies had not made contact with the Woolyungah Indigenous Centre during his leave of absence nor had he requested any services from it during that time.

Disability discrimination

10. The Respondent rejected the allegation that it had misjudged Mr Davies’ disability and that it had refused to provide student support via disability services. The Respondent asserted that Mr Davies had been offered the use of a lap top computer to assist him with his studies.

11. The Respondent stated that Mr Davies had failed to attend an initial appointment with a disability liaison officer. Mr Davies’ first attendance was when he was escorted to the service by University of Wollongong security after it received a report of a critical incident regarding Mr Davies’ behaviour – that is, the disclosure of an intention to commit suicide;

12. Mr Davies subsequently told Tracey Todd, student services manager, that he was experiencing pain in his hand and that he had threatened self-harm because he thought it would prompt staff to help him with an outstanding assessment task. Mr Davies accepted Ms Todd’s offer to liaise with relevant staff regarding available supports, which she did.

13. Mr Davies was admitted to hospital from 10 August 2018 until 15 August 2018. Ms Todd had received a call from an Illawarra Health mental health team social worker who advised of concerns for Mr Davies’ health, and that he was not considered to be fit to study at that time.

14. A meeting was held on 17 August 2018 with the complainant, Ms Todd, Ms Beveridge from the Woolyungah Indigenous Centre and Dr Lee, academic program manager, to discuss Mr Davies’ academic progress and well-being. Dr Lee informed Mr Davies that due to lack of academic progress he would not meet the requirements of the program he was enrolled in. Mr Davies was encouraged to go on a 12 month leave of absence to focus on his health. Mr Davies agreed, but was concerned about his living arrangements. Arrangements were made for Mr Davies to remain in his University of Wollongong accommodation until other arrangements could be made. Mr Davies was informed that he would need to provide evidence to establish that he would be able to have a reasonable chance of completing his studies upon his return from leave of absence.

15. Mr Davies did not engage with disability services or Ms Todd after that meeting.

16. In response to Mr Davies’ allegations that he was patronised by Ms Todd after his disclosure of self-harm, the Respondent stated that Ms Todd actively assisted Mr Davies, who was suffering pain and demonstrating concerning behaviours after disclosing an intention to commit suicide and provided extensive support to Mr Davies and treated him with respect and compassion.

17. With respect to placement of Mr Davies on “Exclusion Status”, the Respondent stated that Mr Davies was enrolled in the University Access Program, UAP, but had been unable to complete course progression requirements. The Respondent stated that Mr Davies had a pattern of withdrawing from subjects without completing them on a number of occasions and was identified as being a student at risk of not completing a course.

18. The Respondent stated that it was acting in accordance with relevant university policies when it placed Mr Davies on “Exclusion Status”, and that Mr Davies was not subjected to any differential treatment in this regard.

19. The Respondent had not unlawfully discriminated against Mr Davies. Mr Davies had not provided any factual or evidentiary basis to support a finding that, on the ground of race or disability, he had been treated less favourably than a comparator, or that the Respondent had imposed any unreasonable requirement or condition that Mr Davies was unable to comply with.

The Respondent’s Submissions

20. The Respondent submitted that the complaint was unmeritorious. There was no causal link between Mr Davies’ Aboriginality, his disabilities his “Exclusion Status.” The Respondent had applied the same policies to Mr Davies as would have been applied to a student of a different race and without Mr Davies’ disabilities in the same circumstances of failure to progress academically. Mr Davies had made 3 unsuccessful attempts to get into University courses via the preparation program. Mr Davies had then been removed from “Exclusion Status” because he had not been given 5 days’ notice. Mr Davies had refused to engage with the Respondent to enable reasonable adjustments to be discussed and considered. Mr Davies’ other complaints had been misconceived and lacking in evidence. The President had exercised her gatekeeper function rightly. Mr Davies bore the burden of establishing his case. It was not fair and just given the lack of evidence for Mr Davies’ claims for the Respondent to be put to the cost of defending the complaint. A Tribunal could not be satisfied that a disability discrimination claim could be substantiated. Mr Davies did not advance evidence of an instance in which he was treated less favourably by the Respondent than a person of another race or who is not disabled in the same circumstances.

21. The Respondent submitted that Mr Davies had not discharged the onus of demonstrating that leave should be granted. The Respondent submitted that Mr Davies' complaint was lacking in substance because:

a.   there was no evidentiary or factual basis to support specific allegations made by Mr Davies; and

b.   even if some specific allegations were made out, there was no evidentiary or factual basis that could result in a finding that the Respondent unlawfully discriminated against Mr Davies and contravened the Anti-Discrimination Act 1977 (NSW).

22. For these reasons, the Respondent submitted that it would not be fair and just for leave to be granted and leave should be refused.

Declination of the complaints by the President

23. The President declined Mr Davies’ complaint (the Complaint) on the ground that the complaint was lacking in substance. See 92(1)(a)(i) of the ADA. The reason was that the complainant had not established that he had been treated less favourably than any other student in the same or similar circumstances on the grounds of either his race or disability.

24. For the reasons that follow, I have decided not to grant leave for the Complaint to proceed before the Tribunal.

Principles for granting leave under section 96 of the ADA

25. Section 96 of the ADA gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones & Anor v Ekermawi [2009] NSWCA 388 at [57]; Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25]. That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant’s rights under that scheme: Jones & Anor v Ekermawi [2009] NSWCA 388 at [57]; Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [32]. The question of leave involves evaluating whether it is “fair and just” to grant or refuse leave in the particular circumstances of the case: Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [36], [37]; Jones & Anor v Ekermawi [2009] NSWCA 388 at [58]. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones & Anor v Ekermawi [2009] NSWCA 388 at [60].

26. The onus of establishing that leave should be granted rests on Mr Davies as the applicant for leave.

Taking the Complaint at its highest

27. In assessing whether to grant leave for Mr Davies to proceed with his complaint, the Tribunal takes the approach of accepting Mr Davies’ complaint at its highest. That is, the Tribunal hypothetically accepts that what Mr Davies says is true and then applies it to the relevant discrimination law.

Statutory framework: unlawful discrimination

Discrimination on the ground of race

28. Section 7 discrimination on the ground of race

(1) A person ("the perpetrator" ) discriminates against another person ("the aggrieved person" ) on the ground of race if the perpetrator--

(a) on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or

(b) …

(c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.

Section 17 Race Discrimination in Education

(1) It is unlawful for an educational authority to discriminate against a person on the ground of race--

(a) by refusing or failing to accept the person's application for admission as a student, or

(b) in the terms on which it is prepared to admit the person as a student.

(2) It is unlawful for an educational authority to discriminate against a student on the ground of race--

(a) by denying the student access, or limiting the student's access, to any benefit provided by the educational authority, or

(b) by expelling the student or subjecting the student to any other detriment.

(3) Nothing in this section applies to or in respect of a prescribed educational authority in relation to such circumstances, if any, as may be prescribed.

29. The Tribunal understands that Mr Davies is alleging that he was treated less favourably on the grounds of his Aboriginality and subjected to a detriment in that the University imputed that people of an Aboriginal race could not complete University studies and he was therefore put on the “Exclusion list” and not permitted to proceed to enrolment in a University degree course.

30. The Tribunal understands that Mr Davies asserts that the staff from Woolgunyah Centre were not local Yuin people and that this meant he was discriminated against on the grounds of his Yuin race and subjected to a detriment in his dealings with Woolgunyah staff.

Establishing a complaint of race discrimination

31. To establish a complaint of race discrimination, an Applicant must be able to show that:

a. he was treated less favourably than other persons (detriment);

b. that the, or one of the, reasons for the less favourable treatment was his race or a characteristic imputed to a person of his race (causation); and

c. that a comparator (a person not thought to be of the same race as the Applicant) would have been treated more favourably in the circumstances and that the Respondent treated him less favourably because of his race or a presumed characteristic of his race.

Detriment - Treated less favourably than others

32. Mr Davies has asserted, and it was not contradicted by the Respondent, that he was given an “Exclusion Status” and not permitted to enrol in a University degree course. The Tribunal accepts that this could amount to a “detriment”.

33. Mr Davies did not provide evidence of the staff of Woolgunyah Centre treating him less favourably on the ground of his race. Mr Davies asserted that the staff of Woolgunyah Centre were not of the Yuin race. This was contradicted by the Respondent. Even if the Tribunal were to be satisfied that the staff of Woolgunyah Centre were not of the Yuin race, putting this aspect of the complaint at its highest, there was no evidence to support the contention that the staff had treated Mr Davies less favourably than a person not of the Yuin race or that this occurred on the grounds of his race.

Causation

The reasons for the less favourable treatment was Mr Davies’ race or a characteristic imputed to people of his race.

34. The Respondent asserted that the reason Mr Davies was given an “Exclusion Status” was the application of the University’s policy concerning any student who failed to progress. Mr Davies asserted that the reason was instead the presumption that a person of his race (Aboriginal and Yuin) could not undertake university studies successfully. However, Mr Davies did not provide evidence of this.

35. Mr Davies asserted that but did not provide evidence that the staff of Woolgunyah Centre subjected him to a detriment and that at least one of the reasons was his race.

That a comparator (a person not of the same race as the Applicant) would have been treated more favourably in the circumstances and that the Respondent treated Mr Davies less favourably because of his race/ a presumed characteristic of his race.

36. Mr Davies did not provide a comparator student, not of his race, or a hypothetical example of how a student not of his race might have been treated in the same circumstances of his lack of progress through UAP. There was no evidence from which the Tribunal could draw an inference that a person not of the Yuin or Aboriginal race would have been treated more favourably. The Respondent also referred to its policy on students who do not progress and its application to Mr Davies.

37. The Tribunal considers it highly unlikely on the basis of the evidence before it that Mr Davies could succeed at hearing in relation to his complaint of race discrimination in education.

Discrimination on the ground of disability

38. The Act explains what constitutes discrimination on the ground of disability:

49B What constitutes discrimination on the ground of disability

(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if the perpetrator:

(a) on the ground of the aggrieved person’s disability ..., treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability ..., or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, ..., comply or are able to comply, being a requirement, which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2) For the purposes of subsection (1) (a), something is done on the ground of a person’s disability if it is done on the ground of the person’s disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

...

(4) A reference in this section to persons who have a disability (“the particular disability”) is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.

39. The Act makes it unlawful for an educational authority to discriminate against a person on the ground of disability:

49L Education

(1) It is unlawful for an educational authority to discriminate against a person on the ground of disability:

(a) by refusing or failing to accept his or her application for admission as a student, or

(b) in the terms on which it is prepared to admit him or her as a student.

(2) It is unlawful for an educational authority to discriminate against a student on the ground of disability:

(a) by denying him or her access, or limiting his or her access, to any benefit provided by the educational authority, or

(b) by expelling him or her, or

(c) by subjecting him or her to any other detriment.

...

40. Section 4 of the Act defines “Disability” to include the malfunction, malformation or disfigurement of a part of a person’s body, and a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour: s 4 of the Act. Disability includes past, future and presumed disability: s 49 A of the Act.

41. Mr Davies alleged that the disability discrimination he experienced consisted of the University:

• failing to make reasonable adjustments to accommodate his thumb injury;

• presuming that he had a mental health disability;

• refusing to provide him with student support via disability services; and

• placing him on “Exclusion status”;

Establishing a complaint of disability discrimination

42. To establish a complaint of disability discrimination, the Applicant must be able to show that:

a. he was treated less favourably than other persons (detriment);

b. that the, or one of the, reasons for the less favourable treatment was his disability (causation); and

c. that a comparator (a person not thought to have the same disability as the Applicant) would have been treated more favourably in the circumstances and that the Respondent treated him less favourably because of his presumed disability.

43. When considering causation, the Tribunal relies on section 4A of the ADA which sets out that where an act is done for two or more reasons, and one consists of unlawful discrimination, whether or not it is the dominant or a substantial reason for doing the act, then, for the purposes of the Act, the act is taken to be done for that reason: s 4A of the ADA.

44. Mr Davies told the Tribunal, and it was not contested by the Respondent, that he had a disability in his hand. Mr Davies stated that the University presumed that he had a mental health disability. It did appear from the evidence that the Respondent had concerns about Mr Davies’ mental health as it had contact with the Illawarra Mental health service concerning Mr Davies. It also appears that the Respondent advised Mr Davies that he would need to provide evidence of his fitness to resume studies. On this basis a Tribunal hearing the matter may find that the Respondent presumed that Mr Davies had a mental health disability.

Detriment

Treated less favourably than others

failing to make reasonable adjustments to accommodate Mr Davies’ thumb injury

45. Mr Davies did not set out what reasonable adjustments should have been provided or that he requested in order to undertake his university studies. The University asserted that Mr Davies had not discussed the issue of accommodating his needs with University staff. The Tribunal cannot be satisfied that a detriment can be established by the evidence at a substantive hearing.

presuming that Mr Davies had a mental health disability

46. It does appear from the evidence that the University did presume that Mr Davies had a mental health disability as it was advised of this by a social worker from the Illawarra mental health team. However, the presumption that Mr Davies had a mental health disability is not of itself a detriment. Mr Davies did not provide evidence that the presumption was a detriment. This element establishing detriment is unlikely to succeed at hearing on the basis of the evidence before the Tribunal.

refusing to provide Mr Davies with student support via disability services

47. The University provided evidence of support provided to Mr Davies through student disability services. The University asserted that Mr Davies did not always avail himself of the support provided. The issue of whether the University provided Mr Davies with student support through disability services is a factual contest which would need to be resolved at hearing.

placing Mr Davies on “Exclusion status”

48. The Tribunal accepts that placing Mr Davies on “Exclusion Status” could be considered to be a detriment.

Causation

The/ one of the, reasons for the less favourable treatment was Mr Davies’ disability and (presumed) disability

49. Mr Davies did not offer evidence of why the University refused to offer him student support via disability services because of his hand injury or his presumed mental health disability. A Tribunal could not find on the available evidence that even if it were satisfied that Mr Davies was refused student support via disability services, it was either on the ground of his disability or presumed mental health disability.

50. The University stated that it placed Mr Davies on “Exclusion Status” because of his failure to progress in his studies – consistently with the University’s policy on students who do not progress in their studies. Mr Davies did not provide evidence that his hand injury was the reason he was placed on “Exclusion Status”.

That a comparator (a person not thought to have the same disability as the Applicant) would have been treated more favourably in the circumstances and that the Respondent treated Mr Davies less favourably because of his disability and presumed disability.

51. Mr Davies did not provide either a real or hypothetical comparator student in respect to either his hand injury or his presumed mental health disability. A Tribunal would not be able to find on the evidence that a student without Mr Davies’ hand injury or presumed mental health disability would have been treated differently in the provision of student disability services or in being accorded an “Exclusion Status”.

Tribunal’s consideration

52. In answering the question of whether leave for the Complaint to proceed should be granted, the Tribunal must examine the Complaint and decide whether in the circumstances of this case it is “fair and just” to grant or refuse leave. In undertaking that task the Tribunal must consider among other things, whether, if the facts asserted by Mr Davies are accepted, cast as a complaint of direct and/or indirect discrimination, the impugned conduct might disclose a contravention of the Act.

53. The problem remains that Mr Davies’ complaint does not meet the requirements of the Act in a number of respects as set out in the Tribunal’s analysis.

54. It follows that, it is highly unlikely that Mr Davies’ complaint of race and disability discrimination in education could succeed at a hearing before the Tribunal.

Should the Tribunal in all the circumstances grant leave ?

55. The President declined Mr Davies’ complaint on the basis it was lacking in substance. The Tribunal is satisfied that a Tribunal hearing the matter is likely to find that Mr Davies has a disability in his hand and that the University presumed he had a mental health disability. Further the Tribunal accepts that Mr Davies is a Yuin man. It is highly unlikely however that a Tribunal would find that Mr Davies was treated less favourably by the University of Wollongong on either the grounds of his race or disability – because of the lack of evidence before the Tribunal of this. The Tribunal must exercise the discretion to grant leave, having regard to the purpose of the legislative scheme established by the ADA and be guided by the consideration that the refusal of leave will finally determine Mr Davies’ rights under that scheme.

Decision

56. For the reasons set out above the Tribunal concludes that the prospects of the referred Complaint succeeding are poor, and it is fair and equitable, having regard to the interests of both parties to refuse to grant leave for the Complaint to be the subject of proceedings before the Tribunal.

Order

57. Leave to proceed with the complaint under section 96 of the ADA is refused.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 09 January 2020