Husein v University of Western Sydney (No 2)

[2009] NSWADT 86

CITATION:	Husein v University of Western Sydney (No 2) [2009] NSWADT 86
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Adnam Ali Husein RESPONDENT University of Western Sydney
FILE NUMBER:	051135
HEARING DATES:	22 April 2009
SUBMISSIONS CLOSED:	4 November 2008
DATE OF DECISION:	22 April 2009
BEFORE:	Britton A - Deputy President; Antonios Z - Non-Judicial Member; Nemeth de Bikal L - Non-Judicial Member
CATCHWORDS:	Indirect discrimination - disability discrimination - discrimination in education
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Disability Discrimination Act 1992 (Cth) Evidence Act 1995
CASES CITED:	Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 Australian Medical Council v Wilson (1996) 137 ALR 653 Bonella & ors v Wollongong City Council [2001] NSWADT 194 Contreras-Ortiz v Commissioner, Department of Corrective Services [2008] NSWADT 308 Hurst v Queensland (2006) 151 FCR 562 Husein v University of Western Sydney [2007] NSWADT 278 Kumaran v Rail Infrastructure Corporation [2005] NSW ADTAP 41 Speering v Minister of Education (1993) EOC 92-513 State of Queensland (Queensland Health) v Forest (2008) 249 ALR 145 Styles v The Secretary of the Department of Foreign Affairs and Trade & anor (1988) EOC 92-239 Waters v Public Transport Commission (1991) 173 CLR 349
REPRESENTATION:	APPLICANT In person RESPONDENT A Cheshire, barrister
ORDERS:	Mr Husein’s complaint of disability discrimination is dismissed

REASONS FOR DECISION

1 Former law student, Mr Adnan Husein, made a complaint to the President of the Anti-Discrimination Board, alleging that the University of Western Sydney had discriminated against him on the grounds of disability in the area of education. The President has referred Mr Husein’s complaint to the Administrative Decisions Tribunal for determination.

2 In a decision handed down in November 2007, on the application of the University, the Tribunal summarily dismissed part of Mr Husein’s complaint (Husein v University of Western Sydney [2007] NSWADT 278). In addition, the Tribunal found that, cast as ‘direct discrimination’ (s 49B(1)(a) of the Anti-Discrimination Act 1977), his allegations of discrimination by the University in relation to its decisions to suspend Mr Husein for non-academic misconduct and to fail Mr Husein in four undergraduate subjects ‘lacked substance’.

3 However, the Tribunal was not persuaded that cast as allegations of ‘indirect discrimination’ (s 49B(1)(b) of the Anti-Discrimination Act), grounds for summary dismissal had been made out.

4 The issue that remains to be determined is whether the decisions to suspend and fail Mr Husein, can be substantiated as allegations of ‘indirect discrimination’.

5 In these reasons all references to ‘the Tribunal’ is a reference to the Tribunal as constituted in Husein v University of Western Sydney [2007] NSWADT 278 and, all references to ‘the decision’, are to that decision.

Scope of remaining complaint

6 Four case conferences were held after the Tribunal’s decision was handed down. Following a case conference on 31 March 2008, the Tribunal prepared a summary of the complaint which set out the main issues for determination and the elements Mr Husein needed to establish (‘the Tribunal’s summary’). A copy was provided to both parties.

7 Mr Husein was directed to notify the Tribunal and the University if he did not agree with the characterisation of the complaint set out in the Tribunal’s summary. He did not do so.

What Mr Husein must prove

8 It is not in issue that the decisions to suspend and fail Mr Husein constitute a detriment for the purpose of s 49L(2)(c) of the Act.

9 Mr Husein must establish in respect of each claim that:

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.

10 The claims do not stand or fall together and for that reason we examine each separately.

Claim 1: Decision to suspend Mr Husein

Background

11 In its Reasons for Decision the Tribunal set out the background to the University’s 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:
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.
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’.
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 AIP [Academic Integration Program], 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’.

Did the conduct occur?

12 In closing submissions, Mr Husein apparently denied having ‘threatened’ exam attendants, Jenelle Wilson and John Burton.

13 Mr Husein argued that he could not possibly have intimidated Mr Burton, the July 2002 exam attendant, as ‘he was a tall, big, young guy’. He contended that, it was inconceivable that ‘a person like me half his size with medical disability’ would be capable of threatening or frightening Mr Burton. Mr Husein argued that the offending comments should be seen in the context of Mr Burton’s account which acknowledged that Mr Husein had been most distressed. Mr Husein also asserted that during the exam University officers did not comply with their obligations under the AIP (Academic Integration Program) and this had caused him great distress.

14 Mr Husein claimed in respect of the June 2002 exam, that from the outset, exam supervisor, Ms Wilson, had ‘some stereotyping feeling about me without anything at all she had negative attitude’. He claims that he arrived late to the exam because the University had provided him with the wrong information about the examination venue and his request for an extension of time was refused.

15 While Mr Husein maintains that his actions should be seen in context and mitigating factors taken into account, he has not denied using the words attributed to him by the attendants and has implicitly admitted to those comments (see for example, President’s report pp 32-39, especially [28] to [36]).

16 We proceed on the basis that, as found by the Non-Academic Student Misconduct Committee, Mr Husein said the words attributed to him by Ms Wilson and Mr Burton.

Requirement or condition

17 The Tribunal identified the impugned requirement in the following terms:

That Mr Husein conduct himself in a proper fashion towards members of the University’s staff (‘the conduct requirement’)

18 The University now contends that that formulation of the requirement would be better expressed in the following terms:

That students not direct verbal threats at members of the University staff.

19 As submitted by the University, the requirement or condition relied upon in a claim of indirect discrimination must be formulated with some precision: Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 per Dawson J at 185; McHugh J at 195-196; Waters v Public Transport Commission (1991) 173 CLR 349 per Dawson and Toohey JJ at 393; McHugh J at 406-407.

20 We accept that the University’s formulation of the offending requirement is more precise than that contained in the Tribunal’s summary and adopt it for that reason. Mr Husein, in our view, is not prejudiced by this reformulation as throughout these proceedings the parties proceeded on the basis that the reference to ‘the conduct requirement’ was a reference to what Mr Husein said to Ms Wilson and Mr Burton following the 2002 examinations.

Does not or unable to comply

21 Mr Husein must establish that during the June and July 2002 exams, he did not or was unable to comply, with the conduct requirement.

22 Mr Husein’s ability to comply was the focus of much discussion in these proceedings. He claimed that because of his disability, he could not comply with the conduct requirement. The University challenged that claim.

23 ‘Ability to comply’ in the context of s 49B(1)(b) of the Anti-Discrimination Act must be assessed in a practical, not a theoretical, sense. (See the approach adopted 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.) In Hurst v Queensland (2006) 151 FCR 562, the Full Federal Court held at [134] that for the purpose of s 6(c) of the Disability Discrimination Act 1992 (Cth) it is sufficient that the complainant establish that they will suffer serious disadvantage in complying with the relevant requirement or condition.

24 While not argued on this basis, it seems to us that Mr Husein’s ability to comply need not be determined, as the evidence is clear that at the relevant time he did not comply.

25 In Australian Medical Council v Wilson (1996) 137 ALR 653, the Full Federal Court considered an appeal against a decision of the Human Rights and Equal Opportunity Commission to uphold a complaint of unlawful race discrimination brought by Dr Burney Siddiqui. Dr Siddiqui was seeking to practise medicine in Victoria on an unrestricted basis. The appellant qualifying body, the Australian Medical Council, required doctors who had not trained in a medical school it had accredited to sit and be placed in the first 200 candidates in order of merit in an examination it set. Dr Siddiqui, who had not trained in a medical school accredited by the Council, sat the exam a number of times but failed to achieve a place in the first 200 students on any occasion.

26 Sackville J said (at pp 685, 686):

Section 9(1A)(b) [Racial Discrimination Act 1975 Cth] requires a complainant seeking to invoke the provisions of s 9(1A) in a case of alleged indirect discrimination to show that the person required to comply with the relevant term, condition or requirement “does not or cannot comply with the term”. In the present case it is necessary to apply these words in a situation where Dr Siddiqui, at the time he sat the written examination, was required to rank in the first 200 candidates, in order to proceed to the clinical examination. The use of the present tense in s 9(1A)(b) suggests that the critical question in the present circumstances is whether, at the time Dr Siddiqui was required to comply with the condition, he did not or could not comply with it.
If the words of s 9(1A)(b) are read in their ordinary sense Dr Siddiqui satisfies them. The simple fact is that he did not comply with the relevant condition at the time he was required to satisfy it. This was regarded by the Commission as sufficient to show that s 9(1A)(b) was satisfied. The Commission’s approach was consistent with that taken by Bowen CJ and Gummow J in Foreign Affairs v Styles at 254-265, although their Honours did not have occasion in that case to consider the question of construction at any length.

27 His Honour went on to say at (p 686):

A particular individual within a group subjected to discriminatory practices often will have some chance of complying with the offending condition or requirement. The chances of compliance may depend on how the condition is administered, or on whether the individual is able to overcome the practical obstacles placed in his or her path by the invidious condition or requirement. … [The] purpose [of the indirect discrimination provision] is satisfied if the relevant individual in fact does not comply with the condition or requirement, regardless of whether the non-compliance flows from some immutable characteristic or from a different cause.

28 The Appeal Panel in The State of New South Wales v Amery & Ors (EOD) [2003] NSWADTAP 16 rejected the appellant’s argument that the phrase, ‘does not or is not able to comply’ in s 24(1)(b) of the Anti-Discrimination Act (the test of ‘indirect’ sex discrimination) should be read conjunctively, not wholly disjunctively. The Panel held that it was sufficient for the complainants to establish that they did not comply with the requirement (at [40]). (The Appeal Panel’s decision on this point was undisturbed on appeal to the Court of Appeal and the High Court).

29 Adopting that approach, it is apparent that at the relevant time, that is, when Mr Husein sat the June and July 2002 exams, he did not comply with the conduct requirement.

Substantially higher proportion

30 Mr Husein must establish that a substantially higher proportion of students without his disability, comply, or are able to comply, with the conduct requirement as compared to students with his disability.

31 It is useful at this point to set out s 49B(1)(b):

(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 …, the perpetrator:
(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.

32 As a preliminary step, s 49B(1)(b) requires the identification of two groups - ‘persons who do not have that disability’ and those with that disability. The words ‘that disability’, refer to the ‘aggrieved person’s disability’ - in this case, Mr Husein’s disability (see s 49B(1)). Before this task can be undertaken, it is necessary to identify the nature of Mr Husein’s disability.

Nature of Mr Husein’s disability

33 ‘Disability’ is defined in s 4 of the Anti-Discrimination Act to mean:

(a) total or partial loss of a person’s bodily or mental functions or of a part of a person’s body, or
(b) the presence in a person’s body of organisms causing or capable of causing disease or illness, or
(c) the malfunction, malformation or disfigurement of a part of a person’s body, or
(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or
(e) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

34 Mr Husein told the Tribunal that he suffers from a number of chronic medical conditions. He described them in various ways in the many documents provided to the Tribunal. Mr Husein does not claim to suffer from any psychiatric or psychological condition.

35 For the purpose of identifying the nature of his disability, Mr Husein relies on a report provided by his treating GP, Dr Michael Mason, and the evidence given in these proceedings by the University’s Disability Advisor, Ms Kerry Heavens.

36 In a report dated 13 January 2002, Dr Mason stated:

Adnam Husein has a chronic medical condition as a result of previous injuries. This manifests in frequent attacks of pain, which require strong analgesics. The attacks of pain are accompanied by emotional stress.
Any conflict or interpersonal confrontation triggers his pain and exacerbates his emotional reaction. Any reaction or behaviour or verbal statement when in this state is most likely to only reflect his physical pain and resulting emotional distress rather than his real personality.
I have advised Mr Husein to be referred for counselling or specialist help relating to this dispute with University examiners and the complaint that he became of aware of in December [2002].

37 Tendered in these proceedings were two statements prepared by Ms Heavens, who also gave oral evidence. Ms Heavens is responsible for, among other things, assisting students with disabilities develop an Academic Integration Plan (AIP). An AIP, requires the University to provide targeted support to a student identified as requiring assistance because of their disability.

38 According to Ms Heavens, Mr Husein disclosed the following medical conditions to the University: an injury to his right arm and interstitial cystitis and chronic prostatitis. On the basis of that information, an AIP was developed in consultation with Mr Husein. Introduced in March 2000, it required the University to provide Mr Husein the following ‘reasonable adjustments’:

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.

39 In 2003, the University agreed to provide additional adjustments which included:

A professional note taker, preferably male;
A scribe for all exams;
An additional 20 minutes writing time per examination or test;
Toilet breaks taken during examinations to be supervised.

40 According to Ms Heavens, Mr Husein did not disclose any psychiatric condition to the University’s Disability Service. In cross-examination, she was asked why no steps had been taken to assist Mr Husein overcome his ‘behavioural problems’. She conceded that it was her view that his conduct would ‘eventually’ become the subject of disciplinary proceedings. She said that as he had not disclosed any psychiatric or any other medical condition that might explain that conduct, she had not suggested counselling or the like and nor was it requested. She pointed out that in developing an AIP, the Disability Service was reliant on the student’s self report of their medical condition.

41 Findings and conclusions It is not in issue that at the relevant time Mr Husein suffered from a number of chronic orthopaedic and urological conditions, the symptoms of which included, chronic back, right arm and leg pain and difficulties with bladder control. It is common ground that by 2002, Mr Husein had experienced pain and discomfort over an extended period.

42 In making his claim of unlawful disability discrimination, Mr Husein is not restricted to the conditions he disclosed to the University. Nonetheless, there must be some evidence to support, what he appears to contend, that the disclosed conditions represented only a portion of those he in fact suffered from in 2002.

43 Mr Husein has not suggested that he suffered any psychological or psychiatric condition and nor is there any medical evidence to support that finding. What he argues, in effect, is that a by-product of his many physiological conditions was that he had been made ‘vulnerable to stress and pain’.

44 The term ‘disability’ is broadly defined by the Act. It is not confined to recognised psychiatric illness or conditions, and includes a ‘disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour’ (par (e) of the definition of disability).

45 The best evidence about whether Mr Husein’s urological and orthopaedic conditions affected his ‘thought processes, perception of reality, emotions or judgment’ or resulted in ‘disturbed behaviour’ is the report provided by Dr Mason. That report does not, as we understand Mr Husein to suggest, support a finding that his diagnosed physiological conditions rendered him unable, at times of stress, to control his emotions. At its highest, Dr Mason’s opinion is that Mr Husein’s physiological condition:

Manifests itself in frequent attacks of pain, which require strong analgesics and are accompanied by emotional stress.
Conflict or interpersonal confrontation triggers his pain and exacerbates his emotional reaction.

46 We proceed on the basis that Mr Husein’s ‘disability’ at the relevant time encompasses the orthopaedic and urological conditions he reported to the University and, in addition, the effect of those conditions, or more correctly the pain that resulted from those conditions, on his emotional responses to stress. For convenience we will refer to these conditions by the shorthand term, ‘Mr Husein’s disability’.

Comparing compliance levels

47 In Bonella & ors v Wollongong City Council [2001] NSWADT 194 the Tribunal outlined the steps necessary in a claim of indirect discrimination to determine whether the offending ‘requirement or condition’ had a disproportionately adverse impact on persons with the relevant characteristic, in this case Mr Husein’s disability. Applied to the facts of this case, Mr Husein must:

First, identify a pool or base group.
Second, identify the members within that group with his disability who comply or are able to comply with the conduct requirement.
Third, identify the members of the base group without his disability who comply or are able to comply with the conduct requirement.
Finally, compare the proportion of students without his disability who comply or are able to comply with the conduct requirement, with the proportion of students with his disability who comply or are able to comply with the conduct requirement.

48 Step One: Identify base group An appropriate base group would seem to us to be undergraduate law students enrolled at UWS in 2002.

49 Step 2: Identify members of the base group with Mr Husein’s disability who comply or are able to comply This step requires first, the identification of the group of students within the base group with Mr Husein’s disability; and second, the calculation of the proportion of students within that group who comply, or are able to comply, with the conduct requirement.

50 No evidence has been provided which might assist us to identify either the members of this group, or those members within the group who comply or are able to comply, with the conduct requirement.

51 Step 3: Identify members of the base group without Mr Husein’s disability who comply or are able to comply Similarly, there is no evidence which might assist us identify either the membership of this group or their level of compliance with the conduct requirement.

52 Step 4: Compare compliance levels between the two groups It is self-evident that without the information from Steps 2 and 3, this comparison cannot be undertaken.

Matter of common knowledge?

53 It follows from the above that Mr Husein’s claim must fail unless, as we understand him to contend, it is a matter of ‘common knowledge’ that a substantially higher proportion of students without his disability can or do comply with the conduct requirement as compared with the group to which he belongs, namely students with his disability.

54 This submission raises the question of what matters can be regarded as matter of ‘common knowledge’. Under s 144(1) of the Evidence Act 1995 proof is not required about knowledge that is not reasonably open to question and is:

(a) common knowledge in the locality in which the proceeding is being held or generally, or
(b) capable of verification by reference to a document the authority of which cannot reasonably be questioned.

55 In a number of decisions of the Equal Opportunity Division of the Administrative Decisions Tribunal it has been held that statistical evidence was unnecessary to determine whether a significantly higher proportion of people without the relevant characteristic can or did comply with the impugned requirement. For example, in Contreras-Ortiz v Commissioner, Department of Corrective Services [2008] NSWADT 308, it was held that it was a matter of common knowledge that a higher proportion of Australian citizens could comply with the requirement that they not be susceptible to removal or deportation under the Migration Act 1958 (Cth), than Colombian citizens. The Appeal Panel in Kumaran v Rail 1nfrastructure Corporation [2005] NSW ADTAP 41, found no error in the Tribunal’s finding that it was a matter of common knowledge that a substantially higher proportion of employees whose first language was English could comply with a requirement that any written communication be in English and of a prescribed standard than employees of Sri Lankan nationality whose first language was not English.

56 Whether the disproportional impact of the impugned requirement on the group with the relevant characteristic constitutes a matter of ‘common knowledge’ - that is, not reasonably open to question or capable of verification by reference to a document the authority of which cannot reasonably be questioned - will depend on the facts of the case.

57 This issue was considered by the Full Federal Court in State ofQueensland (Queensland Health) v Forest (2008) 249 ALR 145. That matter concerned a claim of indirect discrimination brought under the Disability Discrimination Act 1992 (Cth). Mr Forest was told he could not attend two hospitals operated by Queensland Health if he was accompanied by his two dogs on whom he relied for assistance.

58 In setting aside the finding that Queensland Health had discriminated against Mr Forest, the Full Federal Court held that that the trial judge had erred by failing to define either the ‘comparator group’, the group of persons without Mr Forest’s disability, or the ‘base group’, the group with Mr Forest’s disability.

59 Black CJ stated at (p 149):

In some instances the required disproportional impact may be established as a matter of inevitable inference. This will occur when the very nature of the disability is such as to show, without further proof, that none of the members of the comparator group — the persons with the disability — could not comply with the requirement or condition, leading to the necessary conclusion that a substantially higher proportion of persons without the disability could comply.
To my mind the learned judge was in error in the present case in failing to define the comparator group so as to enable the comparison required by the section to be made. Rather, it seems, her Honour attributed to an undefined comparator group the alleged difficulties of access that were at the heart of Mr Forest’s case. While this attribution might well have been sufficient where, for example, there was an obvious physical disability, there was no warrant for doing so here. The proportional impact was by no means self-evident. In the present case, whether the class of persons with Mr Forest’s disability was large or small, and however broadly or narrowly his disability might be defined (and this seems to have been a matter of controversy at the trial), there was no evidence to establish the respective proportions of persons who could comply with the requirement or condition.
For this reason alone a case of indirect discrimination under s 6 [Disability Discrimination Act 1992 (Cth)] was not made out.

60 In our opinion this is not a case where the disproportionate impact of the impugned requirement on the comparator group (students with Mr Husein’s disability) could be said to be a matter of common knowledge, or to use the expression used by Black CJ, an ‘inevitable inference’. We accept, as Mr Husein contends, that it is probably a matter of common knowledge that most students and most students without his disability, comply or are able to comply with the conduct requirement. However, we do not accept that it is a matter of common knowledge that students with his disability cannot comply with the requirement. In reaching that conclusion, we have applied the liberal approach to the words ‘ability to comply’ adopted by the authorities referred to in paragraph [23] of these reasons.

61 While we do not question the sincerity of Mr Husein’s views, that does not elevate his hypothesis to a matter of common knowledge.

62 Summary Mr Husein’s hypothesis about the disproportionate impact of the conduct requirement on members of his group, is just that, a hypothesis, unsupported by any evidence, direct or indirect. Nor are his hypothesis, or the critical assumptions on which it is based, matters of common knowledge.

63 Without evidence to support a finding that a substantially higher proportion of students without his disability comply or are able to comply with the conduct requirement as compared with students with his disability, Mr Husein’s complaint must fail. Therefore, is it unnecessary to consider whether the offending requirement was reasonable.

64 For these reasons, this part of his complaint is dismissed.

Claim 2: Decision to fail Mr Husein

65 The following extract from the Tribunal’s decision sets out the background to this decision:

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:
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.

Relevance of submissions

66 Before examining whether the elements necessary to support a claim of indirect discrimination have been established it is necessary to comment on the scope of Mr Husein’s submissions.

67 Mr Husein made detailed and lengthy submissions about many alleged defects in the University’s decision-making processes. He alleged that he had received inadequate support from the University’s Disability Service. He also made detailed submissions about his alleged mistreatment by various teachers and support staff. Many of the issues raised by Mr Husein in these proceedings concern those parts of his complaint dismissed by the Tribunal in Husein v University of Western Sydney [2007] NSWADT 278.

68 In these Reasons we have confined ourselves to those parts of Mr Husein’s submissions that are relevant to the matters that remain to be determined.

69 The offending requirements are agreed to be:

That Mr Husein 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.

70 We will refer to these collectively as ‘the performance requirement’.

Substantially higher proportion

71 There is no evidence before us from which we could determine whether, as asserted, a substantially higher proportion of students without Mr Husein’s disability comply or are able to comply with the performance requirement as compared with students with his disability. Nor, in our opinion, are this hypothesis, or any of the factual assumptions on which it is based, matters of common knowledge.

72 The little evidence before us on this issue does not assist Mr Husein. For example, then Head of School, Professor Carolyn Sapideen, testified that throughout the period covered by Mr Husein’s complaint she was regularly approached by students who had failed to attend exams and/or submit assignments on time and apparently did not suffer any disability.

73 Without some evidence from which we could assess the impact of the performance requirement on students with Mr Husein’s disabilities, this part of the complaint must fail. It is therefore unnecessary to consider whether Mr Husein complied or was capable of complying with the offending requirement or whether it was reasonable in all the circumstances.

74 For these reasons, this part of his complaint is dismissed.

The complaint of discrimination on the ground of disability is dismissed.