Margan v University of Technology Sydney

[2005] NSWADT 194

CITATION:	Margan v University of Technology Sydney [2005] NSWADT 194
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Simon Margan RESPONDENT University of Technology Sydney
FILE NUMBER:	031157
HEARING DATES:	7/05/2004, 21/07/2004, 6/08/2004, 10/09/2004, 1/11/2004, 5/11/2004, 22/11/2004
SUBMISSIONS CLOSED:	06/21/2005
DATE OF DECISION:	08/19/2005
BEFORE:	Innes G - Judicial Member; Lowe A - Non Judicial Member; Taksa L - Non Judicial Member
APPLICATION:	Homosexual Discrimination - Education - Victimisation - Vilification - Homosexual
MATTER FOR DECISION:	Principal Matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Alone v State Housing Commission (1992) EOC ch692-393 Battenberg v The Union Club [2004] NSWADT 285 Herring v Benevolent Society of NSW (1992) EOC ch692-408 Hill v University of New England (1990) EOC ch692-291 Morrison-Liddy v Director, Department of TAFE (1995) EOC 692-744 Waterhouse v Bell (1991) 25 NSWLR 99 Herring v Benevolent Society of NSW (1992) EOC ch692-408 Hill v University of New England (1990) EOC ch692-291
REPRESENTATION:	APPLICANT In Person RESPONDENT J Hartigan, Solicitor
ORDERS:	The three complaints referred by the Appeal Panel for hearing by a differently constituted Tribunal are dismissed.

INTRODUCTION

1 On 5 June 2003, the Tribunal dismissed a complaint of homosexuality discrimination lodged by Mr Margan against the University Of Technology Sydney (the University). The Tribunal dismissed the complaint under s 111 (1) of the Anti-Discrimination Act (AD) Act 1977. That section states that-

Where, at any stage of an inquiry, the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, it may dismiss the complaint.

2 Mr Margan appealed the decision of the Tribunal to dismiss the complaint. It was heard by the Appeal Panel, and the Panel's decision was brought down on 4 December 2003. The Appeal Panel set aside the decision of the original Tribunal relating to the first three issues of the complaint, and ordered that they should be re-heard before a differently constituted Tribunal. It upheld the original decision of the Tribunal to dismiss the fourth issue of complaint.

3 This is the decision of the differently constituted Tribunal on the first three issues of the complaint.

OUTLINE OF EVENTS

4 Mr Margan is a gay man who completed a degree in applied chemistry (including an honours year) at the University in 1996. His Honours thesis was marked by three lecturers in the Chemistry faculty at the University. Dr Conn awarded 68 marks, Dr Kalman 69, and Dr Patney 71. He was awarded a second division first.

5 Mr Margan then applied for enrolment in a doctoral course. This application was rejected, and he was offered a Masters course by research, with the opportunity to upgrade it to a Doctoral course dependent on his progress. Professor Baker, the then Head of the Department, gave evidence that this process was a common occurrence.

6 Mr Margan was enrolled in the Masters course in 1997, and worked on his post-graduate degree (except for two breaks for leave) until his exclusion from the University in February 2001.

7 Mr Margan asserted that he accepted enrolment in the Masters course on the basis that he wanted it upgraded to a Doctoral course. Following his application for this in 1999, the course was upgraded to a Doctoral degree, and this decision was confirmed to him in a letter dated 8 April 1999. There was some evidence (particularly from Professor Leich) at that time the Head of Research in this area, that the original decision to place Mr Margan in a Masters course may have been a harsh one. However, the Tribunal was not investigating this issue, so makes no findings on the question.

8 In December 1999 Mr Margan wrote to the University requesting that academic records be altered to indicate that he had been completing a Doctoral course from 1997. The registrar of the University, Dr Fitzgerald, replied to this letter on 16 February 2000 refusing Mr Margan's request. Dr Fitzgerald gave evidence that to do so would have been improper, and a misstatement of the facts. He also stated that he had not been aware of either Mr Margan's homosexuality, or of his discrimination complaints against Dr Conn, when he made that decision.

9 Mr Margan was supervised during his post-graduate course by a number of University staff. These included Dr Patney, and Dr Kalman.

10 Dr Patney gave evidence that Mr Margan had, at times, been a difficult student. Dr Patney had counselled him on a number of occasions about not following the agreed direction on his research, and about incorrect laboratory procedures. Dr Patney said that he was not aware that Mr Margan was gay until after Mr Margan had left the Department in late 1999.

11 Dr Kalman gave evidence that Mr Margan was "a person of some sensitivity" and that he was aware of incidents between Mr Margan and Dr Conn, and Mr Margan and other students. These generally related to possession of equipment and materials. Dr Kalman stated that he was not aware that Mr Margan was gay until well after the mediation in June 1999 which he attended. He said that no references were made to this fact during the mediation between Mr Margan and Dr Conn. He also said that the description of the assault of Mr Margan by Dr Conn, given by Mr Margan in evidence, was not given at the mediation.

12 Dr Costa Conn also taught in chemistry at the University. He did not supervise Mr Margan during his post-graduate degree, but was responsible for the administration of the laboratory in which Mr Margan carried out his research. Numerous incidents occurred between Mr Margan and Dr Conn.

13 Mr Margan asserted that these incidents were caused by the fact that Dr Conn discriminated against him on the ground of his homosexuality. Mr Margan alleged that Dr Conn made specific derogatory references to this on numerous occasions, asserted that homosexual people were stupid, and treated him less favourably than other students as a result. Mr Margan further alleged that Dr Conn encouraged other students to operate in a similar manner. Mr Margan also asserted that Dr Conn had marked his honours thesis much lower than the other two markers. Mr Margan brought no other evidence to support these claims.

14 Dr Conn strenuously denied the discrimination allegations. He agreed that he had had difficulty with Mr Margan over a number of years, but put it down to Mr Margan's behaviour and personality. Dr Conn asserted that Mr Margan "bower-birded" chemicals required in various experiments, did not follow correct laboratory procedure, and reacted negatively when these issues were brought to his attention. These assertions were supported in evidence by other members of academic staff.

15 After a long period of enmity between Mr Margan and Dr Conn, an incident occurred in the early evening of 13 May 1999. The details of this incident are in dispute. It followed a disagreement between the two about the ownership of some solvent. Dr Conn asserted that he grasped the lapel of Mr Margan's lab coat to encourage Mr Margan to come to his office to view receipts which proved ownership of the solvent. Mr Margan asserted that the assault was a more serious one. Mr Margan stated that Dr Conn shook him, lifted him off the ground, and dragged him across the floor.

16 There was a witness to this event, but she was not called by either side. The Tribunal also noted that Dr Conn has a mobility disability. At the time he gave evidence he used two sticks to walk with, although he stated in evidence that at the time of the incident he used to walk with one stick. He further stated that his disability causes him to wear calipers on both legs, and that he is somewhat unsteady on his feet. Whilst Dr Conn appeared to have good upper body strength, it would be unlikely that a person with such a disability could carry out the type of assault which Mr Margan alleged. Further, Dr Kalman gave evidence that Mr Margan's description of the events was not raised at the mediation.

17 An attempt was made to resolve this incident through a mediation which took place on 17 June 1999. An agreement was reached from the mediation which Mr Margan signed on 21 June 1999. Dr Conn did not sign it until 26 October 2000. It is not clear why Dr Conn took so long to sign the agreement. His evidence was uncertain on the point- he suggested that he had not seen a copy of the agreement until the day in October 2000 when he signed it. However, this lapse suggested to the Tribunal an unwillingness to commit to its terms. The Tribunal made no finding on this issue, as it was not directly relevant to the issues which it had to determine.

18 Some days after the incident but prior to the mediation, a computer and software, containing work of both Dr Conn and several of his post-graduate students, was removed from the laboratory. It was found some time later destroyed and in a dumpster. Mr Margan admitted that he had removed the computer.

19 Although the police were initially involved in the investigation of this incident, criminal charges were not pressed. Instead, civil action was taken by the University for restitution.

20 This civil action was delayed firstly, according to the University, because it was hoped that Mr Margan would pay the outstanding amount. It was then further delayed when Mr Margan sought an AVO against Dr Conn in January 2000. This matter was settled at the recommendation of the magistrate, and Mr Margan withdrew his AVO application and contributed to Dr Conn’s costs.

21 Disciplinary proceedings were commenced against Mr Margan in August 2000 relating to the removal of the computer, and the failure to make restitution. In February 2001 he was advised that the committee had determined that he would be excluded from the University for four years, and that he was required to pay $10000 for the loss of the computer and software. The University offered to establish an Appeal Committee to re-consider this decision, but following lack of response from Mr Margan the file was closed in December 2001.

22 In early 2000 the OUTS Action Collective of the UTS Students Association, a group with which Mr Margan was involved, applied to the Student Affairs and Equity Committee for $14000 funding for the preparation of a float for the Gay and Lesbian Mardi Gras Parade to take place in 2001. This application was put to the University Council for consideration.

23 The then Chancellor of the University, Justice Gerard Brennan, circulated a statement to Council members expressing his opposition to such funding. This statement set out his view that the proposed funding was outside the power of the University's governing body to make, because it did not relate directly to educational purposes. The statement also referred to the fact that some groups within society would find the Mardi Gras "morally undesirable and offensive" and that the University should not, by providing financial support, be seen to be challenging these views.

24 Dr Fitzgerald gave evidence that the Chancellor had a traditional civil libertarian view of universities. He said that the Chancellor believed that a University has to be a place which supports all points of view. All staff and students should be treated in a way that allows them to exercise their rights, provided that other people are able to express their own views, and be true to their own beliefs. Dr Fitzgerald said that he was distressed when he saw how this statement was being quoted and misquoted around the University as vilification.

25 Professor Brian Lowe, who was Acting Vice-Chancellor during this time, gave evidence that he did not share the Chancellor’s view, but due to the Chancellor’s knowledge of the law he did not argue with him. Professor Lowe felt that the University should take a "broader" view, although he thought that the Chancellor’s views were valid views for the Chancellor to hold. As head of Equity and Diversity at the University, Professor Lowe held the view that the University had to have multi-faceted appeal to its members- Christian, Muslim, gay straight or whatever. He noted that, following the decision of the Council not to fund the float, the Student Affairs and Equity Committee recommended that a staff and student float be organised but not funded by the University, and that the Council supported this decision.

26 Professor Lowe gave evidence that, as Acting Vice-Chancellor, it had been his office that had been occupied by members of the OUTS Action Collective following the Council's first decision. He stated that he was not aware that Mr Margan was gay until he saw Mr Margan's name on an email circulated on behalf of the OUTS Action Collective several days after the occupation of his office.

27 Mr Margan and other members of the OUTS Action Collective asserted that both the Chancellor’s statement, and the University Council decision not to agree to the funding for the float, reinforced, and gave permission for more open expression of, anti-gay views held by students and staff at the University. They asserted that the statement and the decision constituted homophobia and villification. Mr Margan, as well as other witnesses, agreed that gay issues had a higher profile after the statement and the decision, and this caused both support for, and opposition to, gay people.

28 Ms Michelle Sparks, a student at the University from 2003, supported Mr Margan’s position. She had been involved in "queer" issues from that time, and was the Sexuality Officer at the University. She said that the Chancellor’s statement was still having a negative effect on campus at the time of her arrival.

29 Mr Nick Campbell, a "queer" student at the University since 1999, also supported Mr Margan's evidence. He had been involved in "queer" issues during the time of the Chancellor's Statement and the Council decision. He supported evidence of the negative impact which they had on the way gay people were regarded at the University.

30 The matter was debated by the Council on 15 June 2000, and funding was refused. However, the issue was referred back to the Student Affairs and Equity Committee to see if alternative assistance was available. This Committee recommended in July support of the float for students and staff, but no funding, and this recommendation was accepted by the Council in August.

31 In its decision the Appeal Panel set out the background to this case as follows-

"Mr Margan's complaint to the President of the Anti-Discrimination Board (ADB) contained allegations of discrimination on the grounds of homosexuality and victimisation under the AD Act. The President of the ADB declined his complaint under s 90 (1) of the AD Act as "lacking in substance". A case conference was held on 27 September 2002 at which the Judicial Member requested that further material in support of the appellant's complaint be provided. The appellant provided further material to support his complaint in a document entitled "Reply to Lack of Substance Complaint". A further case conference was held on 29 November 2002 at which the University indicated that it would be making an application under s 111 (1) of the AD Act for the complaint to be dismissed. The matter was listed for hearing to consider the s 111 (1) application on 30 January 2003. However the hearing was adjourned because the appellant was attempting to obtain legal advice. The matter was finally heard on 3 April 2003.

At the hearing before the Tribunal Mr Margan agreed that a correct summary of his allegations was set out in a letter from the President of the ADB to Dr Fitzgerald, the Registrar of the University dated 3 April 2002. That summary states that:

(1) On 16 February 2000, the registrar advised (the applicant) that his academic record would not be altered from a Master's to PhD to reflect the true nature of his enrolment. In this letter he was advised that he would not be given the possibility of enrolling in a PhD course. The reason given revolved around a computer incident in June 1999. He appears to be alleging that this is an example of victimisation arising from his earlier complaint of homosexual harassment against a lecturer, Dr Costa Conn.

(2) On 16 June 2000, University of Technology (in its Council meeting) decided not to fund a special grant to the Organising Committee for a float in the 2001 Sydney Gay and Lesbian Mardi Gras. He alleges that the method used to arrive at this decision amounts to homosexual discrimination against himself in the area of education.

(3) On 28 August 2000, proceedings were taken to exclude Mr Margan from study. He alleges this was a result of his earlier complaint of homosexual harassment against a lecturer, Dr Costa Conn.

(4) On 16 August 2001, he was advised that he would not automatically be given the opportunity to appeal [from] a decision that effectively ended all possible avenues of his completing a PhD project at UTS. This effectively excluded him from study. He alleges this occurred because of his homosexuality and victimisation arising from his conflict with Dr Conn".

It is apparent from this summary that incidents (1) and (3) were complaints of victimisation under s 50 of the AD Act, incident (2) was a complaint of homosexual discrimination in education under s 49ZO of the AD Act and incident (4) was a complaint of homosexual discrimination and/or victimisation."

32 This differently constituted Tribunal adopts the Appeal Panel's summary of the background to this case.

33 The Tribunal notes that Mr Margan's homosexuality was not in dispute in these proceedings. However, it also notes that knowledge of Mr Margan's homosexuality was denied by a number of the University's witnesses for much of the time that he studied at the University. Some of those witnesses asserted that they were not aware of it until just prior to the time of the first hearing in this matter.

RELEVANT LEGISLATION

34 The following sections of the AD Act are relevant for the purposes of this hearing.

35 Section 50 states that:

(1) It is unlawful for a person ("the discriminator") to subject another person ("the person victimised") to any detriment in any circumstances on the ground that the person victimised has:
(a) brought proceedings against the discriminator or any other person under this Act,

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

36 Section 49ZO states that:

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

(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 homosexuality:

(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 private educational authority.

37 Discrimination on the ground of homosexuality is defined in s 49ZG:

(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of homosexuality if, on the ground of the aggrieved person's homosexuality or the homosexuality of a relative or associate of the aggrieved person, the perpetrator:
(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 he or she did not think was a homosexual person or who does not have such a relative or associate who he or she thinks was a homosexual person, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not homosexual persons, or who do not have such a relative or associate who is a homosexual person, 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 homosexuality if it is done on the ground of the person's homosexuality, a characteristic that appertains generally to homosexual persons or a characteristic that is generally imputed to homosexual persons.

38 Mr Margan's first complaint was framed by the President of the ADB as follows-

"On 16 February 2000, the registrar advised (the applicant) that his academic record would not be altered from a Master's to PhD to reflect the true nature of his enrolment. In this letter he was advised that he would not be given the possibility of enrolling in a PhD course. The reason given revolved around a computer incident in June 1999. He appears to be alleging that this is an example of victimisation arising from his earlier complaint of homosexual harassment against a lecturer, Dr Costa Conn."

39 This complaint relates to the refusal by the University, through the Registrar, to backdate the change to Mr Margan's academic record. Mr Margan had received advice in early 1999 (following his application) that his course had been upgraded from a Masters to a Doctoral course. He then sought backdating of the academic record so that it indicated that his post-graduate study had been Doctoral for the whole time. The reason given by the Registrar for the University's decision was that such a change would be a misrepresentation of the facts.

40 The complaint also relates to the refusal by the University to allow Mr Margan to continue his studies because of the removal of the computer and software in June 1999, and the fact that restitution for this had not been received.

41 The complaint is one of victimisation. Mr Margan asserts that these decisions were made by the University as a result of his earlier complaints of discrimination on the grounds of his homosexuality by Dr Conn.

42 He must firstly argue that he has suffered a detriment. This is not a difficult argument- he asserts that the two detriments he suffered are the refusal to backdate his change of status from Masters to Doctoral, and the refusal to allow him to continue his post-graduate studies. The University admits making these decisions.

43 Mr Margan had made complaints to the University (to the Student Ombudsman and the Equity and Diversity Unit) regarding Dr Conn. They alleged discrimination against him by Dr Conn, although it was not clear from the written complaints what the grounds of discrimination were. During the hearing Mr Margan asserted that they constituted complaints of discrimination on the grounds of his homosexuality.

44 The Tribunal was somewhat surprised that the University did not pursue the allegations of discrimination included in these complaints, and attempt to determine what ground of discrimination was being alleged. Staff at the University would be aware of the difficulty experienced by some people who are the victims of discrimination in clearly enunciating the basis on which they allege discrimination is occurring. This is particularly true for gay men who have not “come out”. Had University staff demonstrated a little more sensitivity or preparedness to investigate at this early stage, then perhaps this matter may not have reached the point which it has. However, such fault is not what the Tribunal is required to investigate.

45 Further, there is no dispute that Mr Margan lodged complaints of discrimination relating to the alleged actions of Dr Conn. Dr Conn and the University strenuously denied that such discrimination had occurred, but for the purposes of determining this first victimisation complaint it is enough for Mr Margan to show that such complaints were lodged. The Tribunal does not have to determine the veracity of Mr Margan's complaints of discrimination against Dr Conn.

46 As the complainant Mr Margan bears the onus of proof to make out his complaint. The responsibility lies with him to persuade the Tribunal that, on the balance of probabilities, one of the reasons for the University's decision was the prior lodgement by him of a discrimination complaint relating to the alleged conduct of Dr Conn.

47 Unlike complaints of discrimination, s 48 of the AD Act does not apply to victimisation complaints. This is the provision which allows for the discrimination to be only one of a number of reasons for the act complained of, and not necessarily the substantive or dominant reason. For victimisation complaints, though, the ground must be the "substantial and operative factor, Morrison-Liddy v Director, Department Of TAFE (1995) (EOC) 692-744; or the "operative ground" Waterhouse v Bell (1991) 25 NSWLR 99. This means that Mr Margan would have to show that his lodgement of a complaint against Dr Conn met these tests.

48 Chris Ronalds, in Chapter 8 of her Discrimination: Law and Practise, provides a useful analysis of the proof required to make out discrimination complaints. She states-

"The crucial issue which emerges in many cases is establishing the causal nexus between the detriment perceived by the complainant and the lodging of the complaint or other actions taken by them to assert their rights.

Many victimisation complaints fail as that link cannot be demonstrated. In many cases this is because the link is not there, rather than there being any lack of credible evidence to demonstrate it. It is an unfortunate part of the whole discrimination complaint process that some complainants may come to perceive themselves as a "whistle blower" within an organisation. They view any action taken by the organisation as an act of retribution or retaliation for the complaint, especially after it has been lodged with an outside agency. Doubtless, that does occur in some situations and those are the very ones the legislative proscription is directed towards.

However, it is also correct that in some circumstances some complainants view all subsequent events from the position of "victim" and seek to draw interconnecting links when there are none available. There is a danger that such a characterisation both overstates the role of the complainant and overstates the antagonism of the [respondent] to her complaints. (Bailey v Australian National University (1995) EOC ch692-744 at 78'554) This difficulty can arise particularly for an employer or any respondent where there is an on-going relationship or connection with a complainant. Given the sometimes lengthy delays in investigating and conciliating a complaint, there may be a period of 12 months or even longer in which the relationship continues. This can mean that anything that occurs to a complainant which is not to their own liking or request can form the basis of a complaint of victimisation, even when there is no link at all. For example, where a person lodges a complaint and it is unresolved and they unsuccessfully apply for a promotion, this can form part of their perception of victimisation. In fact, their inability to be promoted on that occasion may only be related to a decision on the merit of the competing candidates.

This is not to underestimate the difficulty for a complainant in establishing the causal nexus. It is trite to say that just because the complainant perceives an act of victimisation does not mean that no such act has occurred.

The further difficulty is the balance which a respondent is required to strike between the interests of the complainant in a particular circumstance and the interests of others, including other employees. To act deliberately to ensure that there is no perception of victimisation may result in a complainant in some circumstances being treated more favourably than if they had not lodged a complaint.

A flow of events is not automatically an act of victimisation just because one event follows another event. Mere knowledge that a person is asserting or has asserted their rights is not sufficient to meet the test for an act of victimisation to be established. The link must be able to be demonstrated. If there is another, more plausible or likely explanation for a certain event, then that version must be preferred: Alone v State Housing Commission (1992) EOC ch692-393 at 78'798-90.

If there is no evidence on the face of the act complained of, apart from the subjective view of the complainant that one leads to the other, then there is no basis for a complaint of victimisation to be sustained: Herring v Benevolent Society of NSW (1992) EOC ch692-408 at 78'896-7; Hill v University of New England (1990) EOC ch692-291 at 77'951."

49 Mr Margan gave evidence that the two decisions of the University referred to were due to his discrimination complaints. His assertions in this regard were not supported by any of his other witnesses. He did not provide any evidence of correspondence or conversations which would directly support his assertion.

50 Mr Margan argued that the marks awarded for his Honours thesis demonstrated that Dr Conn was biased against him, and that the University supported Dr Conn’s position. However, the mark of 68 which Dr Conn awarded for the thesis was only one mark lower than the 69 awarded by Dr Kalman, and three marks lower than the 71 awarded by Dr Patney.

51 Mr Margan also argued that Dr Conn’s attitude towards him, and the numerous incidents which occurred between them, supported his allegations of discrimination. However, none of these allegations were supported by other witnesses, and the academics called to give evidence (including Dr Conn) stated that they did not know he was gay until well after the events in question. They characterised the incidents between himself and Dr Conn as being either because of Mr Margan's personality, or because of a personality clash. Whilst the Tribunal does not have to make a finding on the allegations of discrimination against Dr Conn, it is of the view that Mr Margan would have difficulty making them out. This reduces his chances of making out a victimisation complaint.

52 Mr Margan has to show that the homosexual discrimination allegations are the "plausible or likely explanation". Given the reasons in the University's letter, supported by the evidence of Dr Fitzgerald, this would be difficult.

53 The University's reason for the first decision regarding the backdating of Mr Margan's record was that it would not be appropriate to change what in fact had occurred. The Tribunal views this reason as entirely plausible. Whether or not the first decision to place Mr Margan in the Masters course was flawed, it would not be appropriate for the University to re-write history. The University subsequently upgraded Mr Margan to a Doctoral course, and in the Tribunal's view, this was the best that he could expect. The Tribunal is satisfied that victimisation was not a ground for this decision.

54 With regard to the second decision to not allow Mr Margan to continue to study because of disciplinary proceedings, this again is an entirely plausible course to take. The Tribunal is not reviewing the appropriateness of the University's actions, or the need for such disciplinary proceedings. The only finding it needs to make is whether the decision to prevent further study until such proceedings were completed constitutes victimisation. The Tribunal finds that it does not.

55 Mr Margan's first complaint is therefore dismissed.

MR MARGAN's SECOND COMPLAINT

56 Mr Margan's second complaint was framed by the President of the ADB as follows-

"On 16 June 2000, University of Technology (in its Council meeting) decided not to fund a special grant to the Organising Committee for a float in the 2001 Sydney Gay and Lesbian Mardi Gras. He alleges that the method used to arrive at this decision amounts to homosexual discrimination against himself in the area of education."

57 The evidence of Dr Fitzgerald and Dr Lowe was that they were not aware that Mr Margan was gay until after the date on which the Council made its first decision. Mr Margan brought no evidence to challenge this. Further, he brought no evidence to establish that other members of the University Council, including the Chancellor, were aware that he was gay. It is therefore difficult to see how Mr Margan could argue that the decision of the Council discriminated specifically against him on the ground of his homosexuality.

58 However, the Tribunal allowed Mr Margan to further argue that the decision of the Council could constitute vilification on the grounds of homosexuality against him and other gay students at the University. This argument was allowed to occur because, pursuant to the principles set out in Battenberg v The Union Club [2004] NSWADT 285, even though Mr Margan had not alleged homosexual villification in his letter of complaint, the Tribunal was able to interpret his letter of complaint broadly enough to allow such an argument. The respondent opposed this view, but the Tribunal so ruled.

59 The relevant provision of the AD Act is s 49ZT. It provides that-

49ZT Homosexual vilification unlawful

(1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.

(2) Nothing in this section renders unlawful:

(a) a fair report of a public act referred to in subsection (1), or

(b) a communication or the distribution or dissemination of any matter comprising a publication referred to in Division 3 of Part 3 of the Defamation Act 1974 or which is otherwise subject to a defence of absolute privilege in proceedings for defamation, or

(c) a public act, done reasonably and in good faith, for academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.

60 Mr Margan is therefore required to demonstrate that the Chancellor’s statement and the Council’s decision not to fund the float incite hatred towards, serious contempt for, or severe ridicule of him on the ground of his homosexuality. The Tribunal took the following issues into account in making its decision on this complaint of Mr Margan-

- The Chancellor’s statement was prepared for the Council, and the University did not circulate it more broadly than to Council members.

- The Chancellor’s statement did not itself assert that the Mardi Gras was morally undesirable and offensive. It made reference to the fact that these views may be held by some groups in society.

- In its decision the Council of the University did not adopt the Chancellor’s view of how some members of society may view the Mardi Gras. It simply resolved not to fund the float.

- In a subsequent decision the Council confirmed the recommendation of the Student Affairs and Equity Committee to support a float for University staff and students.

61 Bearing all of the above in mind, the Tribunal is not persuaded that the actions of the University incite hatred towards, contempt or ridicule of, Mr Margan. In this day and age the views expressed by the Chancellor in his statement may be regarded by many as incorrect, and a somewhat narrow assessment of Australia's diverse society. However, it would, in the Tribunal's view, be a stretch to regard them as vilification.

62 Further, the evidence as to why the Council did not fund the float was far from clear. It could have as easily been because the Council was of the view that it did not have the power to fund such a float. Whilst such a view could again be regarded as a narrow view of the University Council's powers of operation, it is difficult to see how it could constitute vilification.

63 The Tribunal accepts the evidence of Mr Margan, supported by that of Mr Campbell and Ms Sparks, that there was an increase in homophobic comment and behaviour on campus following the Council’s decision. However, this could as easily be as a result of public opposition to the Council’s decision by the OUTS Action Collective as to the Chancellor’s statement or the Council’s decision itself.

64 The Chancellor’s statement and the Council’s decision may have been unfortunate, but the Tribunal is not satisfied that they constitute vilification within the terms of the section. Mr Margan’s second complaint is therefore dismissed.

MR MARGAN's THIRD COMPLAINT

65 Mr Margan's third complaint was framed by the President of the ADB as follows-

"On 28 August 2000, proceedings were taken to exclude Mr Margan from study. He alleges this was a result of his earlier complaint of homosexual harassment against a lecturer, Dr Costa Conn."

66 Once again this is a victimisation complaint, and the Tribunal adopts the law and reasoning set out for Mr Margan's first complaint. The detriment is the commencement of the disciplinary proceedings which is not disputed. The alleged discrimination is the same as that for the first complaint. Again, the question is whether the causal nexus exists.

67 The Tribunal's view with regard to the discrimination allegations against Dr Conn remains the same. Once again, therefore, it would be difficult for Mr Margan to make out a victimisation complaint.

68 The "plausible or likely explanation" for the University's action is the removal of the computer and software, which Mr Margan admitted to. The Tribunal does not have to assess whether (in all of the other circumstances - including the assault by Dr Conn) such disciplinary proceedings were warranted. It only needs to determine whether the removal of the computer was a plausible explanation for such proceedings. The Tribunal is satisfied that it was. Therefore Mr Margan cannot make out his complaint of victimisation, and the third complaint is dismissed.

CONCLUSION

69 This hearing was the latest of a number of attempts made by Mr Margan to right a series of perceived wrongs which he asserts were done to him by the University and its staff between 1996 and 2001. Whilst he has been able to demonstrate a long list of most unfortunate circumstances which have occurred to him, he has not been able to show that any of these circumstances have constituted discrimination.

70 As with any such set of circumstances, neither party is completely blameless. Mr Margan's personality and approach have not assisted his cause. Perhaps, as well, the University may have dealt with some of the issues somewhat more sensitively than it did.

71 It is hoped that the extensive airing of concerns which this hearing allowed will bring an end to the matters, so that both parties can move on to more positive aspects of their activities.