Husein v University of Western Sydney
[2007] NSWADT 278
•29 November 2007
CITATION: Husein v University of Western Sydney [2007] NSWADT 278 DIVISION: Equal Opportunity Division PARTIES: APPLICANT
RESPONDENT
Adnan Ali Husein
University of Western SydneyFILE NUMBER: 051135 HEARING DATES: 19 July 2007 SUBMISSIONS CLOSED: 16 August 2007
DATE OF DECISION:
29 November 2007BEFORE: Britton A - Deputy President CATCHWORDS: Disability Discrimination - Education - Dismissal of complaint - for any other reason MATTER FOR DECISION: Preliminary matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004CASES CITED: Amery & ors v State of New South Wales (Director-General NSW Department Of Education And Training) [2004] NSWCA 404
Bonella & ors v Wollongong City Council [2001] NSWADT 194
Commissioner of Police, New South Wales Police Service v ors [2001] NSWADTAP 16
Commonwealth Bank v Human Rights and Equal Opportunity Commission (1997) 150 ALR 1
Gardiner v WorkCover Authority of New South Wales (EOD) [2004] NSWADTAP 1
Han v NSW Department of Health [2006] NSWADT 113 Harding v Vice Chancellor, University of NSW [2003] NSWADT 74
Hay v State of New South Wales (New South Wales Police Service) [2006] NSWADT 13
Hillman v Bankstown District Sports Club Ltd (No 2) [2007] NSWADT 179
Lin v American International Assurance Company (Australia) Pty Ltd [2005] NSWADT 59
Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73
Razaghi v Director General, Department of Health & anor [2005] NSWADT 202
Razaghi v Director-General, NSW Department of Health & anor [2002] NSWADT 4
Salama v Qantas Airways Ltd [2002] NSWADT 119
Shaikh v Police and Community Youth Clubs NSW Ltd & ors [2001] NSWADT 221
State of New South Wales v Amery (2006) 226 ALR 196
Tannock v State of New South Wales [1999] NSWADT 73
The State of New South Wales v Amery & ors (EOD) [2003] NSWADTAP 16
Wollongong City Council v Bonella & ors and Bonella & ors v Wollongong City Council (EOD) [2002] NSWADTAP 26REPRESENTATION: In person
A Cheshire, barristerORDERS: 1.The respondent’s application made under section 102 of the Anti-Discrimination Act 1977 (AD Act) is dismissed; 2.The allegations made by Mr Husein that the University provided him with incorrect information about the dates and venues of exams and, through its officers, harassed him in the course of an examination, do not form part of the complaint referred by the President, as they are ‘out of time’; 3.Matter is set down for a case conference on 10 December 2007 at 12 pm.
REASONS FOR DECISION
1 Mr Adnan Husein, a former law student, claims that the University of Western Sydney discriminated against him on the grounds of disability. In June 2003 he lodged a complaint with the President of the Anti-Discrimination Board, which was subsequently referred to the Administrative Decisions Tribunal. The University now moves under section 102 of the Anti-Discrimination Act 1977 (the Act) to have Mr Husein’s complaint dismissed on the grounds that it lacks substance or, in the alternative, because the conduct alleged could not establish a contravention of the Act.
2 For the purpose of this application it is not contested that Mr Husein suffers from a ‘disability’ as defined by section 4 of the Act. He identifies that disability to be ‘a physical disability caused by physical injuries overseas. I am vulnerable to stress and pain because of trauma and torture that I have experienced in the past’. I understand that Mr Husein claims that he suffers from, among other things, hand injuries, depression, pain attacks and a propensity to react in a volatile manner when confronted with ‘situations of conflict or interpersonal confrontation’.
Procedural history
3 On 15 March 2006 the University applied for Mr Husein’s complaint to be dismissed under section 102 of the Act and provided written submissions in support. Mr Husein was directed to file submissions in answer to that application. Submissions prepared on his behalf were filed on 31 January 2007 and revised submissions were filed on 10 May 2007.
4 On 25 June 2007 Mr Husein moved to have the 19 July hearing listed to consider the University’s application vacated and the matter determined ‘on the papers’. He argued that he would be at a disadvantage if required to address fresh issues raised by Counsel for the University in oral submissions. That application was refused. The parties were directed to confine their submissions to the matters raised in their respective written submissions.
5 The application was heard on 19 July 2007. At the close of that hearing Mr Husein requested and was given an opportunity to make further written submissions provided that they were filed within 14 days of receipt of transcript. That timetable was amended following a request by Mr Husein for additional time. Mr Husein did not comply with the revised timetable and sought a further extension of time. That request was refused.
6 On 10 August 2006 the Tribunal (differently constituted) appointed a representative under s 71 of the Administrative Decisions Tribunal Act 1997 having found that Mr Husein was an ‘incapacitated person’ within the meaning of section 71(4) of that Act. Shortly after that appointment, the guardian relinquished her appointment because of an alleged conflict of interest. A new guardian was appointed and he prepared submissions on the section 102 application. That guardian relinquished his appointment shortly before the section 102 hearing. Mr Husein appeared in person at the hearing.
Background
7 Mr Husein commenced studies as a graduate law student at the University of Western Sydney in February 2000. In March 2000 he attended the University’s Disability Service and an Academic Integration Plan (AIP) was developed. Under the Plan, the University agreed to provide Mr Husein with the following ‘reasonable adjustments’:
8 By 2003 further adjustments had been made which included:
A note taker for all lectures;
A separate room for examinations and class tests;
A five minute rest break per hour in all examinations and tests;
An additional 10 minutes writing time per examination or test; and
Unlimited access to a toilet during all examinations and tests.
Period of complaint
Professional note taker, preferably male;
Scribe provided for all exams;
An additional 20 minutes writing time per examination or test;
All toilet breaks taken during examinations to be supervised.
9 Mr Husein lodged a complaint with the President on 2 June 2003 alleging discrimination on the ground of race and disability. (An earlier unsigned complaint made by Mr Husein was not accepted by the President.) He later withdrew his complaint of race discrimination.
10 In his complaint Mr Husein alleged that the University discriminated against him on the grounds of disability by:
11 Mr Husein asked the Tribunal to include as part of his complaint a number of incidents that occurred in the period June to December 2002. These included the first two allegations listed above. He stated that he delayed lodging his complaint to allow the University time to finalise its investigations into various allegations made by and against him. Consequently it would be unfair, he contends, to restrict the temporal scope of his complaint.
Providing incorrect information about exam dates and venues;
Harassing him in the course of an examination;
Suspending him for non-academic misconduct;
Failing him in four undergraduate law courses.
12 Mr Husein’s complaint was lodged before the Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 came into effect on 2 May 2005. By operation of the now repealed section 88(3) of the Act, the period of the complaint is limited to the six-month period immediately before the complaint was lodged with the President, namely 2 December 2002 to 2 June 2003.
13 Irrespective of the reason Mr Husein delayed making his complaint, I do not have power to extend its scope beyond the period, 2 December 2002 to 2 June 2003 (Commissioner of Police v Orr [2001] NSWADTAP 16). Accordingly, I cannot determine the allegations that Mr Husein was provided with incorrect information about exam dates and venues and harassed in the course of an examination.
Should Mr Husein’s complaint be dismissed?
14 The issue raised by the University’s section 102 application is whether the circumstances of this case warrant an exercise of the power to summarily dismiss Mr Husein’s complaint on the grounds the University has advanced. In a long line of decisions, the Equal Opportunity Division of the Tribunal has adopted the approach that the discretion to dismiss a complaint summarily under section 102 (formerly section 111(1)) should be exercised with exceptional caution and only if the circumstances clearly warrant such action. (See Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16; Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73; Tannock v State of New South Wales [1999] NSWADT 73; Karekar v TAFE Commission of New South Wales [2000] NSWADT 187Shaikh v Police and Community Youth Clubs NSW Ltd & ors [2001] NSWADT 221; Salama v Qantas Airways Ltd [2002] NSWADT 119; Razaghi v Director-General, NSW Department of Health & anor [2002] NSWADT 4; Harding v Vice Chancellor, University of NSW [2003] NSWADT 74]; Lin v American International Assurance Company (Australia) Pty Ltd [2005] NSWADT 59; Razaghi v Director General, Department of Health & anor [2005] NSWADT 202; Han v NSW Department of Health [2006] NSWADT 113; Hay v State of New South Wales (New South Wales Police Service) [2006] NSWADT 13; Hillman v Bankstown District Sports Club Ltd (No 2) [2007] NSWADT 179.)
15 As the Tribunal commented in Karekar v TAFE Commission of New South Wales at [36], the need for caution is even more apparent in cases such as this where the application to have the complaint dismissed is made prior to the adducing of the Applicant’s evidence at the substantive hearing.
16 It is not in issue to ascertain whether the complaint, as the University asserts, lacks substance or does not disclose a contravention of the Act. Mr Husein’s evidence should be taken at its highest: see Prakash v Bobb Borg Enterprises Pty Ltd at 13-14; Ravel v Plastral Fidence Pty Ltd [1999] NSWADT 18. In other words if the University’s evidence conflicts with Mr Husein’s, the University’s evidence is to be disregarded. In this matter, no evidence has been filed. The only evidence – or more correctly, material – capable of being converted into evidence, is that contained in the President’s Report.
17 In written submissions (at page 17), Mr Husein identifies section 49 B(1)(b), or what is more commonly known as ‘indirect discrimination’, as the provision he relies on for the purpose of his complaint. Somewhat confusingly, the submission at times uses the language of ‘direct discrimination’ (section 49 B(1)(a)). Given this apparent ambiguity and having regard to the fact that Mr Husein was not legally represented, I have decided to consider his complaint on the basis that both direct and indirect discrimination are alleged.
18 It is convenient to deal with the subject matter of the complaint in two parts, namely the decision to suspend Mr Husein and the decision to enter on his academic record that he failed four subjects.
Allegation 1: Decision to suspend Mr Husein
19 By letter dated 2 April 2003, University Secretary, Rhonda Hawkins, notified Mr Husein that on the recommendation of the Non-Academic Student Misconduct Committee, the Vice Chancellor had decided that he would be suspended for the first semester of 2003.
20 In March 2003 the Committee found the following allegations sustained:
21 What Mr Husein says Mr Husein does not deny saying the words attributed to him by Ms Wilson. However, he gives a more innocent account of the altercation (see statement prepared by Mr Husein dated 14 March 2003). On his account, the examination paper was confusing and because of this he asked Ms Wilson to contact the lecturer to clarify the exam question. He claimed that when she refused he ‘felt totally blank’, his ‘physical pains flared up’ and he became distressed that he would fail the exam. He claims that when he said the offending words he was very upset and distressed and it had been a reaction to ‘the traumatic pain, stress and frustration resulting from his argument with Ms Wilson’.
That on 24 June 2002 Mr Husein acted in a threatening manner towards examination supervisor Jenelle Wilson and said: ‘Be careful because if I see you outside I will come after you’.
That on 15 July 2002 Mr Husein acted in a threatening manner towards examination supervisor John Burton, saying ‘If I fail in my course I’ll come after you’. In addition, that Mr Husein failed to follow Mr Burton’s instructions and stop writing when instructed.
22 In relation to the July exam, Mr Husein claims that when he realised he would be unable to complete it within the allocated time he became distressed. He said he requested an extension of time, which he believed to be in line with the IAP, but this was refused. He claimed that after pleading for an extension the supervisor, ‘snatched’ the exam paper from him. Mr Husein said he was ‘outraged…humiliated and abused’ by this ‘unusual conduct’. He conceded that he might have said words to the effect, ‘if I fail I would chase the matter or him beyond…the university’ but claimed he ‘always meant to pursue the matter through legal channels. But the atmosphere and the heated situation would cause a mistake in the interpretations. I never meant to hurt anybody…It is obvious what happened… during that transient wave of anger was only an automatic reflection to the pain and trauma.’
23 What needs to be proved. To succeed in a claim of indirect discrimination, as defined by section 49B(1)(b) of the Act, Mr Husein must establish that:
24 As I understand the University’s submissions for the purpose of this application, it does not contest that the decision to suspend Mr Husein could constitute a detriment and/or the denial of access to a benefit, for the purpose of section 49L(2) of the Act.
The University imposed a requirement or condition; and
He was unable to comply with that requirement or condition; and
A substantially higher proportion of persons without his disability comply or are able to comply with the subject requirement or condition; and
The requirement or condition was not reasonable having regard to the circumstances of the case.
25 The University contends that the decision to suspend Mr Husein is time barred and therefore the Tribunal has no power to entertain that allegation. Before considering that argument, I will first examine whether there is any evidence which, if accepted, could support a finding that each of the elements necessary to support a complaint of indirect discrimination are made out.
26 (i) Requirement or condition. Mr Husein’s written submissions make numerous references to allegations of indirect discrimination but do not particularise the offending requirement or condition. It is to be noted that at this stage of the proceedings the parties has not been directed to provide Points of Claim and Defence.
27 What constitutes the condition or requirement necessary to support a claim of indirect discrimination is a question of fact (Waters v Public Transport Corporation (1991) 173 CLR 349) and must be identified with some precision (Australian Iron and Steel Pty Ltd v Banovic (1987) 168 CLR 165 at p 185, per Dawson J and Waters per McHugh J at p 20).
28 The University contends that the focus of Mr Husein’s complaint has never been on any requirement or rule imposed by the University nor has he ever asserted that any of its requirements are ‘unfair’. In truth, it contends that his real complaint is that the AIP did not go far enough, in terms of adjustments to the circumstances in which he was expected to perform as a student. Rather it argues that at the heart of Mr Husein’s complaint is his belief that he was not provided with adequate support or sufficient latitude to enable him to comply with the rules and requirements imposed on the student community.
29 There is no requirement that the subject matter of the complaint represents the complainant’s key concern in relation to the perpetrator’s conduct. It is enough that it alleges a contravention of the Act.
30 For the purpose of this application, I proceed on the basis that the relevant requirement is that Mr Husein conduct himself in a proper fashion towards members of the University’s staff (the conduct requirement).
31 (ii) Unable to comply. It falls to Mr Husein to establish that he was unable to comply with the conduct requirement. The authorities make it clear that ‘ability to comply’ in the context of indirect discrimination is to be assessed in a practical, not theoretical, sense. (See the approach adopted by Einfeld J in The Australian Public Service Association v The Australian Trade Commission (1988) EOC 92-228, at page 77, 1672; by Wilcox J in Styles v The Secretary of the Department of Foreign Affairs and Trade & anor (1988) EOC 92-239 at 77, 238 and by the Western Australian Equal Opportunity Tribunal in Speering v Minister of Education (1993) EOC 92-513 at 79,621.)
32 There is no firm evidence before me on the precise nature of Mr Husein’s alleged disability. Based on his self report it would appear to be a physical disability which makes him vulnerable to stress and pain and a possible mental disability that manifests itself in a physical form.
33 While no medical evidence has been filed to date, Mr Husein’s account of his condition, if accepted, might support a finding that he was unable to comply with the conduct requirement. He claimed for example that in the second exam ‘my pain flared up’, ‘I was very anxious and very upset’ and ‘what happened was an automatic, uncontrolled reaction actuated by the fact that I am very vulnerable to stress’.
34 In my view, it could not be said that at this stage of the proceedings that there is no evidence on which to base a finding that Mr Husein was unable to comply with the conduct requirement.
35 (iii) Substantially higher proportion.Mr Husein must establish that a substantially higher proportion of students who do not suffer from his disability comply, or are able to comply, with the conduct requirement. The Tribunal in Bonella & ors v Wollongong City Council [2001] NSWADT 194 outlined the steps necessary to determine whether this element is established. Applied to the facts of this case, Mr Husein must:
36 Mr Husein has not addressed these issues. However, for the purpose of this application, in my view, it could not be said that there is no evidence that a substantially higher proportion of students without Mr Husein’s disability can comply or have complied with the conduct requirement, as compared with those who suffer from that disability. As a matter of commonsense, the overwhelming number of students enrolled in a tertiary institution such as the University of Western Sydney, comply or can comply with the conduct requirement.
First, identify a pool or base group.
Second, identify the members within that group who suffer from the subject disability and can comply with the conduct requirement.
Third, identify the members of the base group who do not suffer from the subject disability and can comply with the conduct requirement.
Finally, compare the proportion of students without the subject disability who can comply with the conduct requirement, with the proportion of students with the subject disability who can comply.
37 Whether the proportionality element can ultimately be made out will depend among other things, on the identification of the base group and the subject disability. This will be a matter for the evidence and submissions.
38 (iv) Not Reasonable. Mr Husein must establish that the offending requirement is ‘not reasonable’. These words in the context of indirect discrimination have been the subject of extensive consideration. They have been considered by the High Court in Banovic, Waters and Amery; by the Court of Appeal in Amery & ors v State of New South Wales (Director-General NSW Department of Education And Training) [2004] NSWCA 404; by the Federal Court in Commonwealth Bank v Human Rights and Equal Opportunity Commission (‘Finance Sector Union Case’) (1997) 150 ALR 1; Styles v The Secretary of the Department of Foreign Affairs and Trade (1989) 23 FCR 251, Commonwealth v HREOC (1995) 63 FCR 74. In this Tribunal it has been considered by Appeal Panels in The State of New South Wales v Amery & ors (EOD) [2003] NSWADTAP 16, Wollongong City Council v Bonella & ors and Bonella &ors v Wollongong City Council (EOD) [2002] NSWADTAP 26; Gardiner v WorkCover Authority of New South Wales (EOD) [2004] NSWADTAP 1.
39 Sackville J in the Finance Sector Union Case provided a useful summary of the relevant principles (at 32-35):
40 The High Court commented in Waters (at page 395) that ‘reasonableness is a question of fact’, that could only be determined by a ‘weighing of all the relevant factors’. An assessment of whether the offending requirement is ‘not reasonable’ requires first, the identification of all relevant factors and second, the weighing up or evaluation of those factors.
Firstly, “the test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience. … The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account.” (per Bowen CJ and Gummow J in Styles at FCR 263; ALR 634) Because the test is objective, the subjective preferences of the complainant cannot be determinative of the reasonableness of the requirement or condition, although subjective preferences may be relevant.
Secondly, the question whether the requirement or condition is unreasonable must be uninfluenced by any concept of discrimination which exists outside the statutory definition.
Thirdly, the complainant bears the onus of establishing that the requirement or condition is unreasonable in the circumstances of the case. Any difference in the treatment of the complainant compared with other employees is not prima facie discriminatory and therefore unreasonable.
Fourthly, while non-reasonableness is a question of fact for the Tribunal, the failure to consider a relevant factor in the circumstances of the case is an error of law. Relevant factors differ from case to case, but will usually include the financial or economic circumstances of the alleged discriminator, including its ability to accommodate the needs of the complainant. It may also be relevant to consider the availability of alternative approaches which would achieve the objectives of the alleged discriminator, but in a less discriminatory way. Reasonableness:
Fifthly, it is no part of this exercise to determine whether the decision to impose the requirement or condition was the correct one. The question is not simply whether the alleged discriminator could have made a better or more informed decision. The presence of a logical and understandable basis for the requirement or condition is a factor in determining whether the requirement is reasonable.
“…must be determined by reference to the activity … in which the putative discriminator is engaged. Provided the purpose of the activity … is not to discriminate on impermissible grounds, the reasonableness of a requirement or condition depends on whether it is reasonable to impose the requirement or condition in order to perform the activity … There are two aspects to this criterion of reasonableness: first, whether the imposition of the condition is appropriate and adapted to the performance of the activity …; secondly, whether the activity could be performed ... without imposing a requirement or condition that is discriminatory … or that is as discriminatory as the requirement or condition imposed. These are questions of fact and degree. Effectiveness, efficiency and convenience in performing the activity … and the cost of not imposing the discriminatory requirement or condition or of substituting another requirement or condition are relevant factors in considering what is reasonable.” (per Brennan J in Waters at 378)
41 The University contends that there is nothing in Mr Husein’s material to support a conclusion that the offending requirement was anything but reasonable. It argues that ‘never in a million years’ could it be said that the conduct requirement was not reasonable and that it is ‘fanciful’ to think that Mr Husein could establish otherwise.
42 It is difficult to see how the task of determining whether a requirement is not reasonable can be undertaken before any evidence is adduced or the parties have been given the opportunity to identify those factors they consider relevant to the exercise and the weight to be afforded to each. In my view it would be premature to reach a finding at this stage of the proceedings, that the offending requirement is not reasonable. While there is considerable strength in the proposition put for the University, in keeping with the cautious approach that must be taken in determining an application for summary dismissal, I do not accept the proposition that it is unarguable that the requirement is unreasonable.
43 ‘On the grounds of’. The University submits that in addition to the elements listed above, Mr Husein must prove that the offending condition or requirement was imposed ‘on the ground’ of his disability.
44 Counsel for the respondent, Mr Cheshire, contends that as a matter of statutory construction the words ‘on the ground of’ contained in section 49B(1) must be given some work to do and operate to require the offending requirement or condition to have been imposed ‘on the ground of’ the complainant’s disability.
45 To consider this submission it is useful to set out section 49B(1) in full:
46 The meaning of the words ‘ on the ground of’ in the context of section 24(1)(b) of the Act, which defines indirect sex discrimination, and in all relevant respects mirrors section 49B(1)(b), was considered by the Appeal Panel in The State of New South Wales v Amery & ors (EOD) [2003] NSWADTAP 16. The Panel accepted that a literal reading of the opening paragraph of section 24(1) together with subsection (1)(b) required a finding to be made that the requirement or condition imposed must have been imposed because of, or on the ground of, the aggrieved person’s sex. However after examining its legislative history and its statutory context (at [13]–[20]), the Panel concluded that this literal interpretation of the provision should not prevail. The Panel took the view that the words ‘on the ground of the aggrieved person’s sex’ in s 24(1) should be confined to section 24(1)(a) of the Act, that is, the test of so-called ‘direct’ discrimination.
1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if, on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, the perpetrator: [emphasis added]
(a) 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 who does not have such a relative or associate who has 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, or who do not have such a relative or associate who has 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.
47 On appeal, the Court of Appeal endorsed that analysis: Amery & ors v State Of New South Wales (Director-General NSW Department Of Education and Training) [2004] NSWCA 404. Her Honour Beazley JA (Hodgson JA and Cripps AJA agreeing) concluded that the words ‘on the ground of the aggrieved person’s sex’ in section 24(1), are surplus in relation to section 24(1)(b) and therefore should be ignored.
48 On appeal, the decision of the Court of Appeal was set aside: State of New South Wales v Amery (2006) 226 ALR 196. The High Court did not address the statutory construction point raised by the words ‘on the ground of’. Accordingly, the interpretation given to section 24(1)(b) by the Court of Appeal remains binding on this Tribunal and the University’s argument is rejected.
49 Out of time? In oral submissions the University asserted that the allegation concerning the decision to suspend Mr Husein is out of time. This issue was not addressed in the University’s written submissions. As noted at [4], the parties were directed to confine their oral submissions to the matters raised in their written submissions. However, as I do not accept the University’s submission, for convenience I will dispose of the argument in these reasons.
50 Mr Cheshire contends that the relevant date for the operation of the statutory time limit enshrined in the now repealed section 88(3) is the date the conduct requirement was imposed and not complied with – not the date of the subsequent decision to suspend Mr Husein. In support of that proposition, he points to the wording of section 49B(1)(b) which provides that the perpetrator discriminates against the aggrieved person if [the perpetrator] requires the aggrieved person to comply with a requirement…’. He argues that this situation is analogous to what can be seen as the two-step process in the criminal law, the first being the development of a law (or the requirement) and the second, the criminal proceedings where the law (or requirement) is enforced. The April 2003 decision to suspend Mr Husein was, he argues, the enforcement of the requirement or a ‘simple decision in relation to what has already passed’.
51 The alleged contravention of the Act is the relevant act for the purpose of the statutory time rules. This is plain from the words of section 88(3):
52 To identify the relevant date for the purpose of section 88(3) it is therefore necessary to determine when the alleged contravention occurred. The substantive provision of the Act on which Mr Husein relies is section 49L(2) which makes it unlawful for an education authority to discriminate against a student on the ground of disability:
A complaint shall be lodged within 6 months after the date on which the contravention of this Act … which is the subject of that complaint is alleged to have been committed. [emphasis added]
53 The alleged contravention occurred or crystallised, when the University did, or is alleged to have done, one of the things listed above. Section 49B does not, as the University’s submission suggests, identify those acts which constitute a contravention of the Act, but rather sets out the test to be used to determine if conduct caught by section 49L(2), falls within the statutory definition of discrimination.
(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.
54 The alleged contravention occurred when Mr Husein was subjected to a detriment/denied access to a benefit. That is, when he was suspended from the University. That did not occur until the decision to suspend him was made in April 2003. It follows that the allegation concerning the decision to suspend Mr Husein is within time.
55 Summary. Taking Mr Husein’s material at its highest, I am not satisfied that that part of the complaint that relates to the decision to suspend him lacks substance or does not disclose a contravention of the Act.
Allegation 2: Award of fail grade
56 By letter dated 16 April 2003, the Head of the University’s School of Law confirmed the decision to award Mr Husein ‘fail’ grades in four subjects namely, criminal law, litigation, professional responsibility and legal ethics and equity and trusts. She gave these reasons for the decision:
57 Out of time? In oral submissions the University argued that the decision made by the Head of School in April 2003 was nothing more than the confirmation of an earlier decision to award Mr Husein a fail grade and, as such, was out of time. The University in its written submissions did not raise this issue.
The policy of the Law School was to not permit students to carry over interim assessment work from year to year,
The School refused to override an earlier decision made by an academic not to accept an assignment that had been submitted by Mr Husein two months after the due date, and
The School refused to set further deferred examination dates after 'multiple dates' previously set had not been taken up by Mr Husein.
58 As recorded at [4] of these reasons, parties were directed to restrict their oral submissions to the matters raised in their written submissions. As a matter of procedural fairness and having regard to the fact that Mr Husein is not legally represented, in my view it would be inappropriate to determine this issue without giving him the opportunity to make further submissions.
59 Even if the University’s characterisation of the April 2003 decision is correct, from the material before me it is not possible to discern when the ‘original’ decision to grade Mr Husein as a fail in each of the four subjects was made. It is apparent that the School’s decision was based on events which pre-dated the period of the complaint but it is unclear when fail grades for each subject were recorded.
60 For these reasons, I will not determine this issue at this stage of the proceedings.
61 (i) Requirement or condition. I agree with the University’s submission that on the basis of his submission, the offending requirement/s identified by Mr Husein would appear to be:
62 I refer to the above in these reasons as the ‘performance requirement’.
That he submit assignment work within a reasonable period of time,
That he be bound by the policy which prohibits students from carrying over assessment work from incomplete or failed courses to a subsequent year,
That he attend and perform satisfactorily at end-of-course examinations.
63 Unable to comply. There is no medical evidence before me to support a finding that Mr Husein was unable to meet the above requirements on account of his alleged disability. His self-report, if accepted, might support such a finding.
64 Substantially higher proportion. It was argued for the University that because of the impact of the AIP regime, Mr Husein was not required to comply with the same requirements as other students and therefore it could not be maintained that a substantially higher proportion of students who do not have his disability comply or are able to comply with the performance requirement as compared to those who suffer from the subject disability.
65 There is no evidence before me on which to base a finding, as the University’s submission seems to suggest, that Mr Husein was the sole student required to comply with a modified performance requirement. I could not be satisfied at this stage that there is no evidence that would support a finding that a substantially higher proportion of persons without Mr Husein’s disability can comply or are able to comply with the subject requirement or condition.
66 Not Reasonable. For largely the same reasons given in relation to the suspension allegation, I do not accept the proposition that at this stage of the proceedings it is unarguable that the performance requirement is unreasonable.
67 Summary. Taking Mr Husein’s material at its highest, I am not satisfied that that part of his complaint relating to the decision to award him a fail grade, should be dismissed on the ground that it lacks substance or does not disclose a contravention of the Act.
68 The University’s application is therefore dismissed in relation to that part of the complaint relating to the allegation concerning the suspension of Mr Husein and the decision to award him fail grades.
Direct Discrimination
69 Given the decision set out above, strictly speaking it is unnecessary to consider the University’s submission that if cast as an allegation of direct discrimination, Mr Husein’s complaint ‘lacks substance’. It goes without saying that the power to dismiss under section 102 will only be enlivened if, cast as an allegation of ‘direct’ and ‘indirect’ discrimination, the complaint is found to satisfy one of the grounds for dismissal available under section 102.
70 The issue of whether the complaint lacks substance if cast as an allegation of direct discrimination, was addressed by both parties. Accordingly, in the interests of refining the matters to be determined in the substantive hearing I will address this issue in these reasons.
71 To succeed with an allegation of direct discrimination, Mr Husein must establish that, in respect of the decisions to suspend him and/or enter ‘fail’ grades on his academic record, the University:
72 The two allegations do not stand and fall together. It is not necessary for Mr Husein to establish both allegations for his claim to succeed.
Treated him less favourably than, in the same or similar circumstances, it treated or would have treated a person who did not have his disability,
And, that one of the reasons for that treatment was his disability.
73 Less favourable treatment Section 49B(1)(a) requires the University’s treatment of Mr Husein to be compared with that afforded to an actual or hypothetical student who did not suffer from Mr Husein’s disability who was, or would be, in the same, or not materially different circumstances. This task requires the identification of the relevant circumstances in which to place the actual or hypothetical comparator. (In the absence of a nominated actual comparator I proceed on the basis of a notional or hypothetical comparator, namely a hypotheictcial able-bodied law student enrolled at the University of Western Sydney.)
74 The majority in Purvis v New South Wales (2003) 217 CLR 92 (at pages 160, 161) described the approach to be taken, in this way:
75 The suspension decision. The comparable circumstances include the circumstances surrounding the altercation between Mr Husein and exam staff or more correctly, for the purpose of this application, the conduct Mr Husein admits to. There is no direct evidence, or evidence from which it could be inferred, that in comparable circumstances the University has treated or would treat a student who did not suffer from Mr Husein’s disability, more favourably.
In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, section 5(1) [Disability Discrimination Act 1992 (Cth)] requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled…
The circumstances referred to in section 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the “discriminator”. It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person’s disability…
76 The fail grade decision. Nor is there any direct evidence, or evidence on which it could be inferred, that in comparable circumstances the University would have treated an able-bodied student more favourably. The relevant circumstances include the failure to submit assignments within the requisite period and to sit compulsory and/or deferred examinations.
77 On the grounds of. There is no direct evidence, or evidence from which it could be inferred, that one of the reasons the University suspended and/or failed Mr Husein in four subjects was his disability.
78 Summary. Taking Mr Husein’s evidence at its highest, cast as allegation of direct discrimination, I am satisfied that it lacks substance.
Orders
1. The respondent’s application made under section 102 of the Anti-Discrimination Act 1977 (AD Act) is dismissed.
2. The allegations made by Mr Husein that the University provided him with incorrect information about the dates and venues of exams and, through its officers, harassed him in the course of an examination, do not form part of the complaint referred by the President, as they are ‘out of time’.
3. Matter is set down for a case conference on 10 December 2007 at 12 pm.
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