MEWETT and CURTIN UNIVERSITY OF TECHNOLOGY
[2016] WASAT 25
•16 MARCH 2016
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION: MEWETT and CURTIN UNIVERSITY OF TECHNOLOGY [2016] WASAT 25
MEMBER: MR J MANSVELD (SENIOR MEMBER)
HEARD: 14 OCTOBER 2016
DELIVERED : 16 MARCH 2016
FILE NO/S: EOA 43 of 2014
BETWEEN: SCOTT MEWETT
Applicant
AND
CURTIN UNIVERSITY OF TECHNOLOGY
Respondent
Catchwords:
Discrimination Equal opportunity Direct discrimination Indirect discrimination Requirement or condition - Impairment Education Post secondary education Vocational education Higher education - Credit for prior learning Australian Qualifications Framework Requirement or condition that applicant complete relevant Diploma before he could be given credit for prior learning - Applicant failed to prove that he could not complete relevant Diploma course Applicant failed to prove that requirement or condition was not reasonable having regard to circumstances of the case
Legislation:
Equal Opportunity Act 1984 (WA), s 4, s 66A(3), s 66I, s 89, s 90(2)
Tertiary Education Quality and Standards Agency Act 2011 (Cth)
Result:
Complaints of discrimination dismissed
Summary of Tribunal's decision:
Mr Scott Mewett, the applicant in these proceedings, is enrolled in an online course, a Bachelor Degree of Applied Science (Architectural Science) at Curtin University.
In November 2014, he lodged a claim with the Equal Opportunity Commission. Mr Mewett alleged that he had been adversely discriminated against 'on the ground of' an impairment.
Mr Mewett suffers from depression and a general anxiety disorder.
Mr Mewett claimed that because of his impairment, he was treated less favourably by Curtin than a person without the impairment in the time taken to process his initial application for a credit for prior learning and in the way in which Curtin dealt with his subsequent complaint.
These two claims are claims of direct discrimination.
The more significant issue for Mr Mewett was the decision by Curtin not to allow him sufficient credit for prior learning, particularly, but not limited to, the decision not to allow him any credit for a partially completed Diploma of Architectural Technology at TAFE NSW. Mr Mewett claimed that because of his impairment he was unable to complete that Diploma.
This was a claim of indirect discrimination.
The Tribunal found that there were no elements of discriminatory behaviour in the conduct of Curtin in the way Mr Mewett's application for a credit for prior learning was handled.
The claim for direct discrimination was dismissed.
The Tribunal was not satisfied that the evidence supported a finding that Mr Mewett was not able to comply with the requirement or condition that he complete the Diploma of Architectural Technology.
In any case, the Tribunal was also persuaded by Curtin’s submission that Mr Mewett had not demonstrated that Curtin’s policy on the giving of credit for prior learning was not reasonable having regard to the circumstances of the case.
The claim for indirect discrimination was dismissed.
Category: B
Representation:
Counsel:
Applicant: Nil
Respondent: Mr A Sharpe
Solicitors:
Applicant: N/A
Respondent: Lisa Forstner
Case(s) referred to in decision(s):
Abela v State of Victoria [2013] FCA 832)
Briginshaw v Briginshaw [1938] HCA; (1938) 60 CLR
Edoo and Minister for Health [2010] WASAT 74
Hurst and Devlin v Education Queensland [2005] FCA 405
Tanious v Australian Medical Council Ltd (2015) NSWCA 189
Waters and Others v Public Transport Corporation (1991) 168 CLR 461
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These proceedings arise in the Tribunal's original jurisdiction under the Equal Opportunity Act 1984 (WA) (EO Act).
On 10 November 2014, the applicant, Mr Scott Mewett (Mr Mewett) lodged a complaint (complaint) with the Equal Opportunity Commission of Western Australia (EOC) alleging discrimination by Curtin University of Technology (Curtin).
The complaint alleges discrimination on the ground of impairment in the area of education. The compliant has elements of alleged direct and indirect discrimination.
The impairment is depression and a general anxiety disorder.
On 28 November 2014, the EOC dismissed the complaint as misconceived or lacking in substance, pursuant to s 89 of the EO Act.
On 1 December 2014, Mr Mewett gave the EOC written notice pursuant to s 90(2) of the EO Act requiring the Commissioner for Equal Opportunity to refer his complaint to the Tribunal.
On 9 December 2014, the referral from the EOC was filed with the Tribunal.
The complaint was referred to mediation in the Tribunal on 12 February, 12 March and 26 June 2015.
Mediation was not successful and the complaint was listed for a final hearing on14 October 2015.
Mr Mewett attended the hearing by telephone from his residence in New South Wales. Curtin was represented by counsel.
Curtin called two witnesses: Associate Provost, Professor Clare Pollock and Associate Professor Werner Soontiens, Director Student Engagement in the Faculty of Humanities.
Mr Mewett gave evidence but did not call any witnesses.
The documentary evidence is referred to below.
The decision was reserved. I have decided to dismiss the complaint. My reasons for this are as follows.
Relevant legislation of the EO Act
4. Terms used
(1)In this Act, unless the contrary intention appears ‑
…
educational authority means a body or person administering an educational institution;
educational institution means a school, college, university or other institution at which education or training is provided;
impairment in relation to a person, means one or more of the following conditions ‑
(a)any defect or disturbance in the normal structure or functioning of a person's body; or
(b)any defect or disturbance in the normal structure or functioning of a person's brain; or
(c)any illness or condition which impairs a person's thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour,
whether arising from a condition subsisting at birth or from an illness or injury and includes an impairment ‑
(d)which presently exists or existed in the past but has now ceased to exist; or
(e)which is imputed to the person[.]
66A. Discrimination on ground of impairment
(1)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of impairment if, on the ground of ‑
(a)the impairment of the aggrieved person; or
(b)a characteristic that appertains generally to persons having the same impairment as the aggrieved person; or
(c)a characteristic that is generally imputed to persons having the same impairment as the aggrieved person; or
(d)a requirement that the aggrieved person be accompanied by or in possession of any palliative device in respect of that person's impairment,
the discriminator treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person who does not have such an impairment.
(1a)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of impairment if, on the ground of ‑
(a)the impairment of; or
(b)a characteristic that appertains generally to persons having the same impairment as; or
(c)a characteristic that is generally imputed to persons having the same impairment as,
any relative or associate of the aggrieved person, the discriminator treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person who does not have such an impairment.
(2)For the purposes of subsection (1) or (1a), circumstances in which a person treats or would treat another person who has, or has a relative or associate who has, an impairment are not materially different by reason of the fact that different accommodations or services may be required by the person who has an impairment.
(3)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of impairment if the discriminator requires the aggrieved person to comply with a requirement or condition ‑
(a)with which a substantially higher proportion of persons who do not have the same impairment as the aggrieved person comply or are able to comply; and
(b)which is not reasonable having regard to the circumstances of the case; and
(c)with which the aggrieved person does not or is not able to comply.
(4)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person who is blind, deaf, partially blind or partially deaf (in this subsection referred to as the aggrieved person) if the discriminator treats the aggrieved person less favourably on the ground of the fact that the aggrieved person possesses, or is accompanied by, a guide dog or hearing dog, or on the ground of any matter related to that fact, whether or not it is the discriminator's practice to treat less favourably any person who possesses, or is accompanied by, a dog, but nothing in this Act affects the liability of the aggrieved person for any injury, loss or damage caused by the guide dog or hearing dog.
66I. Education
(1)It is unlawful for an educational authority to discriminate against a person on the ground of the person's impairment ‑
(a)by refusing or failing to accept the person's application for admission as a student; or
(b)in the terms or conditions 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 the student's impairment ‑
(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
(c)by subjecting the student to any other detriment.
(3)Nothing in this section applies to or in respect of a refusal or failure to accept a person's application for admission as a student at an educational institution that is conducted solely for students who have an impairment which the applicant does not have.
(4)Nothing in this section applies to or in respect of a refusal or failure to accept a person's application for admission as a student at an educational institution where the person, if admitted as a student by the educational authority, would require services or facilities that are not required by students who do not have an impairment and the provision of which would impose unjustifiable hardship on the educational authority.
Documents filed by the parties
Mr Mewett filed a number of documents in the Tribunal: a statement of issues, facts and contentions dated 8 September 2015 and a bundle of documents on which he relied.
Curtin filed the following documents: a statement of issues, facts and contentions dated 30 September 2015 and a bundle of documents.
The Tribunal also relied on the referral material filed by the EOC on 9 December 2014.
Background to the complaint
In about July 2014, Mr Mewett applied for and was enrolled in the Bachelor Degree of Applied Science (Architecture Science) at Curtin (Bachelor Degree).
Mr Mewett resides in New South Wales and his enrolment in the Bachelor Degree is by way of Open Universities Australia.
Curtin is the only higher education provider in Australia to provide the Bachelor Degree as an on‑line course.
In about August 2014, Mr Mewett made an 'Application for Credit Transfer through Credit for Recognised Learning (CRL)' (prior learning) with Curtin. In that application, Mr Mewett sought credit for prior learning against the Bachelor Degree for: completing one year of a Diploma of Architectural Technology at TAFE NSW in 2012; in respect of completing units towards a Bachelor of Architecture at the University of Canberra in 2013; and for work/life experience, mainly at the Catholic Education Office in Sydney during 1997 to 2001.
The final decision by Curtin concerning credit for prior learning is contained in a letter dated 5 November 2014 to Mr Mewett from Professor Majella Franzmann, Pro Vice‑Chancellor, Faculty of Humanities. This letter followed a complaint made by Mr Mewett to Curtin regarding the initial decision for credit for prior learning.
That decision of Professor Franzmann was that Mr Mewett would be given credit for two units completed at the University of Canberra (he had completed more than two units); no credit for the partially completed Diploma of Architectural Technology; and no credit for a Diploma of Interactive Digital Media (a diploma completed by Mr Mewett in 2011 at TAFE NSW). Mr Mewett was then invited to provide more detail and supporting documents if he wanted to pursue a credit for work/life experience and his 'portfolio'.
The bases for the decision by Professor Franzmann were that a 'mapping exercise' had been undertaken in respect of the units completed at the University of Canberra; that Curtin's policy was to not allow any credit for an uncompleted diploma at a lower level than a Bachelor Degree, under the Australian Qualifications Framework (see below); and that work/life experience had not been taken into account because of a lack of relevant information provided by Mr Mewett.
Mr Mewett's case
Mr Mewett states that he is unable to meet the requirements of Curtin regarding recognition of his prior learning; in particular, that he is unable to complete the Diploma of Architectural Technology.
In addition, Mr Mewett states that the information he provided Curtin about his work/life experiences and his portfolio was sufficient for credit for prior learning to be given. In respect of his 'CV' which he had submitted to Curtin, Mr Mewett states:
My CV was completely suitable and it was a slight against my character that [Professor Franzmann] felt that that was not substantial enough … I was not capable of submitting any further documentation to her because [I] had already done so. I had done the best that I was capable of already previously … I couldn't do a better job for her. I was not capable of it. I was also distressed by her manner in asserting that what I had submitted was not suitable. (T: 24, 25; 14/10/2015)
Mr Mewett says that he is unable to meet the requirements of Curtin because of a disability.
In his evidence and in the documents before the Tribunal, Mr Mewett's disability is described in a number of ways.
Mr Mewett relies principally on a diagnosis contained in a letter from Dr John Baker, Consultant Psychiatrist, dated 25 July 2012.
Dr Baker had first attended to Mr Mewett in December 2010. He diagnosed Mr Mewett as suffering from 'Major Depressive Disorder ‑ treatment resistant type'. Dr Baker referred to a recent MRI scan of Mr Mewett's brain which had revealed the presence of areas of gliosis and damage to the pre‑frontal cortex which Mr Mewett had sustained when he was about five years of age. Both the gliosis and the acquired brain injury were said by Dr Baker to be associated with major depressive disorders which do not respond well to treatment.
Dr Baker stated:
… it is my opinion that it is very unlikely that Mr Mewett would be able to work in any capacity in the open employment market. He is essentially deskilled and [the] learning [of] new skills [is] likely to be severely impaired by his past history of closed head injury and subsequent severe prolonged Major Depressive Disorder which had not responded to management.
In the documents submitted by Mr Mewett, two more recent medical reports by general medical practitioners provide opinions on Mr Mewett's disability.
In a letter dated 17 June 2014, Dr Abdul Matin Talukder states that Mr Mewett suffers from 'Anxiety‑Depression' for which he was being prescribed antidepressant medication. The plan was for Mr Mewett to see a psychologist for counselling.
In a report to the University of Sydney Disability Services (Student Support Services) by Dr S Anand dated 23 February 2015, Mr Mewett is diagnosed with a general anxiety disorder and depression. The disability is stated to be severe and its status as 'ongoing stable'.
Dr Anand describes the symptoms of the disability as low mood, slowness of comprehension and speech, insomnia, anger, palpitations, sweating, somatisation, loss of pleasure and an increased sense of fear.
In responding to the question of how the disability might impact on Mr Mewett's studies, Dr Anand opines that Mr Mewett would have impaired concentration and comprehension, memory disturbance, would be easily fatigued, would procrastinate and would have difficulties in making decisions.
Dr Anand assessed Mr Mewett as requiring extra time to complete assignments and exams, and that he would prefer working in smaller groups; would need rest breaks in exams; and that he should be permitted to give his presentations before teachers and not before the class.
Dr Anand assessed that Mr Mewett was not in need of a mental health safety plan which might otherwise be required for a student considered to be at mental health risk.
In his oral evidence, Mr Mewett states that he does not know what it is like not to be depressed:
So I mean lifelong depression. And through that, there has been increasing anxiety which in these recent years has shown ‑ they say manifested itself in many physical disabilities that I have internally, and distress of mind, and expression of my character or distress or pain or suffering, be it anger or something else from me. So I have become completely isolated. I have zero friends. I have one life companion [who] is the person I care for, physically care for. I am her carer. I have no other human contact other than people that you meet by happenstance. So I am in a position of extreme isolation. (T:15; 14.10.15)
In the transcript of a recorded complaint Mr Mewett made against the University of Technology, Sydney on 27 August 2015, he suggests that because of his need for structure in the context of his behavioural issues, he might fall within the definition of 'Asperger's Syndrome'.
In a statement dated 29 November 2014 made to the EOC, Mr Mewett states that he is in 'the very early stages of late onset vascular dementia' although, in his oral evidence, he describes the condition as 'vascular dementia which was brain strokes, multifocal' and that, because of a family predisposition to that illness, 'it's almost certain that I am going to have that condition' (T:16; 14/10/2015). Mr Mewett is 57 years old.
Mr Mewett states that his disability (or disabilities) has resulted in a '… very sorry tale of my experiences at TAFE and at university …' (T:8; 14.10.15). He cites a number of examples where he has run afoul of employers and educational authorities.
Mr Mewett states that from the late 1990s he worked as a publications designer for Catholic Education for about four years but that during that period he was constantly being harassed by his immediate manager in an attempt to have him leave the organisation. He states that his employment was terminated because of an 'explosion of my behaviour' after he had unilaterally ceased taking his antidepressant medication (T:19; 14/10/2015).
Mr Mewett states that in 2008 or 2009 his then employment with Sensis was terminated because he was too slow in his work, and he says this is an example of 'the inability of me being able to work within a company' (T:19; 14.10.15).
Regarding his tertiary education, Mr Mewett states that in 2010 he was thrown out of class at Campbelltown TAFE after allegedly threatening a teacher, which he denied. The following year he says he was forced to leave the Diploma in Architecture course at St George TAFE because of student pressure. In 2013, he says that he left the University of Canberra due to problems with staff and students concerning his university accommodation. In August 2015, he was given a formal warning by the University of Technology Sydney (UTS) for allegedly engaging in intimidating conduct against a staff member, and was given approval for a leave of absence for spring 2015. Mr Mewett states that he has received a letter of warning from Curtin.
Mr Mewett states that the examples he gives regarding his employment and educational history are consistent with his daily interactions with people such that 'it is a bad outcome that causes harm to others and myself' (T:19; 14.10.2015).
In his statement of issues, facts and contentions, Mr Mewett states:
My primary claim is that I am not able to complete the Diploma [of Architectural Technology] due to my disability and the associated psychological problems that on repeated occasions [has led me to being a] victim of extreme emotional disturbance both to myself and those involved with me in further education.
Mr Mewett states that he wants to continue with higher education to make up for his lack of prospects for employment and to:
… give my mind some structure and hopefully some building blocks to be able to carry through in later life as [vascular dementia], if it does affect me, starts to affect me, that I might have more to work with. (T:16; 14.10.2015)
Mr Mewett states that it is because of his inability to interact with people in person that he approached Curtin to enrol in the online Bachelor Degree course. He says that the online course meant that he would not have to be involved with university staff and other students on a face‑to‑face basis.
In a document provided by Mr Mewett titled 'Curtin Access Plan' prepared by the Curtin Disability Advisor, adjustments are to be allowed to his coursework on the basis of his 'acquired brain injury which is linked to a Major Depressive Disorder and visual loss that results in difficulty reading a computer screen for prolonged periods of time'. The plan, which is valid from 8 August 2014 to 31 December 2015, accepts that Mr Mewett:
•will require significant extensions on due dates;
•will attempt group interactions and presentations on‑line (however, he may require some adjustments to be made, depending on how he manages); and
•will require journal articles to be printed off in hard copy.
Mr Mewett also questions the validity or correctness of Curtin's policy to not allow him any credit for his partially completed Diploma of Architectural Technology. This was on the basis that both the University of Canberra and the UTS have allowed him some credit. Thus, Mr Mewett said:
At Canberra University clearly understood ‑ according to the [Australian Qualifications Framework, see below] and other guidelines, that a half‑completed diploma at such a high degree shows complete competence in the subject matter of Technology 1 and Technology 2 and their undergraduate degree, and UTS, even then being far more constrained in their thinking ‑ and a greater ‑ far greater ATAR level of entry, acknowledged at least one technology unit for technology 1. (T:75; 14.10.15)
Mr Mewett alleges that Curtin failed to genuinely enter into discussion with him concerning the dispute on the amount of credit to be given for his prior learning. In particular, Mr Mewett cites the decision not to give him credit for his portfolio, work/life experience and the Diploma in Interactive Digital Media.
In early October 2014, Mr Mewett made a complaint to Curtin following its initial assessment of the credit to be given for his prior learning: see the evidence of Associate Professor Werner Soontiens below.
Mr Mewett alleges that Curtin took an unreasonable time to process his initial application for credit for prior learning and his subsequent complaint to Curtin, which was ultimately responded to by Professor Franzmann (see above).
Mr Mewett said in a written statement made to the EOC on 29 November 2014 that he had planned to undertake an international study exchange in the United Kingdom in September 2014 and had asked Curtin to quickly process his application for prior learning because it would impact on his decision whether he would embark on the overseas exchange.
Mr Mewett states that Curtin initially gave him credit for the Diploma of Architectural Technology but reversed that decision when it was discovered that he had not completed the Diploma of Architectural Technology. He says that he made the decision not to travel to the United Kingdom in the knowledge that he had been given credit for the Diploma of Architectural Technology.
Mr Mewett states that Curtin at first refused to accept a verbal complaint from him in respect of the initial prior learning decision, and it was only after he advised that he was unable to make the complaint in writing because of his disability that Curtin agreed to accept a verbal complaint. However, it still took a month to arrange the oral recording of the complaint.
Mr Mewett submits that Curtin did not properly deal with his oral complaint, and he alleges that only a short written summary of his concerns was relied upon. He submits that this was a further discriminatory act, given that he was unable to complete the complaint in writing because of his disability.
In a statement to the EOC dated 29 November 2014, Mr Mewett proposes that the remedy for his complaint of discrimination is for Curtin to give additional credit for the units completed at the University of Canberra, as well as including the half completed Diploma of Architectural Technology in the calculation for credit ('in light of my disability') as well as his previous work/life experience and portfolio.
However, in his statement of issues, facts and contentions dated 8 September 2015, Mr Mewett restricts his concerns to Curtin not allowing any credit for his uncompleted Diploma of Architectural Technology.
Curtin's case
The evidence of Professor Clare Pollock
Professor Pollock is the officer responsible at Curtin for its compliance with the Tertiary Education Quality and Standards Agency Act 2011 (Cth).
Professor Pollock's evidence was as follows.
There are two broad areas of post‑secondary education in Australia:
•vocational education and training, which focuses on the achievement of technical skills and being able to apply them in specific contexts; and
•higher education, which is undertaken by universities and other higher education providers, and is more focused on lifelong learning, creative thinking and critical analysis.
Studies at Curtin are in the area of higher education. Generally speaking, studies at TAFE are in the area of vocational education and training.
The Diploma of Architectural Technology undertaken by Mr Mewett at TAFE NSW is a vocational education and training course.
The document Higher Education Standards Framework (Threshold Standards) 2011 sets out the rules that apply to every higher education provider in Australia. This process is regulated by the Tertiary Education Quality and Standards Agency.
Curtin has recently completed its registration as a higher education provider (as assessed by the Tertiary Education Quality and Standards Agency), which means that it is considered to be compliant with the Higher Education Standards Framework (Threshold Standards) 2011. Registration is current until 2022.
The Australian Qualifications Framework (AQF), sets out a framework of the knowledge, skills, outcomes and purposes of any qualification that may be obtained in an Australian educational context. It covers both vocational education and training courses and higher education courses.
The aim of the AQF is to ensure consistency across all types of qualifications that flow from Australian educational institutions.
The AQF has an overarching framework that describes 10 levels of qualification. A diploma is a level 5 qualification and a bachelor degree is a level 7 qualification.
From 1 January 2015, all universities in Australia must comply with the AQF. Universities must design their courses so that, for example, all students will have achieved level 7 outcomes when they have completed a bachelor degree. The way in which compliance with the AQF will be achieved will vary between institutions due to the different types of courses and expectations.
The AQF contains a qualification pathways policy (pathways policy) which deals with how the qualification levels articulate and join together so that students and prospective students can progress, if appropriate, between levels.
Amongst other things, the AQF pathways policy guides educational institutions as to how they are to apply credit from diploma courses, advanced diplomas and associate degrees into three year or four year bachelor degrees. For example, the AQF pathways policy establishes the principle that a student should receive 33% credit for a diploma linked to a three year bachelor degree if it is in the same or in a related discipline.
The Curtin document Credit for Recognised Learning Manual applies the principles set out in the AQF for the giving of credit for prior learning. For example, a certificate 4 qualification (AQF level 4) is not given credit for a level 7 bachelor degree qualification. Importantly, a completed diploma (level 5 qualification) is given 33% credit towards a three year bachelor degree consistent with the AQF pathways policy. An incomplete diploma is given no credit for a bachelor degree. Professor Pollock said:
As a principle, you do not apply credit for incomplete diplomas. The challenge with diplomas at AQF ... level 5 is that it's not clear but will vary significantly across types of diplomas what sorts of outcomes or what level of outcomes can be achieved at what point in the diploma course, and so we have a principle that we know that at the end of the course, you've achieved certain outcomes. It's not clear where you may have got to part‑way along the course … [The] [D]iploma of [A]rchitectural [T]echnology is a two‑year course and you might expect that the earlier parts of the course, for example, the first year[,] might qualify you and might have learning outcomes which might be, say, at level 4, AQF level 4. That would not be unexpected and that would be a sensible way to interpret it. That wouldn't get any credit at all towards a Curtin [qualification] at level 7. (T:33; 14.10.15)
Educational institutions can enter into 'Articulation Agreements' which set out arrangements for credit to be given (transferred) between different courses in different institutions, consistent with the AQF.
For example, the document Approved Articulation Agreements from TAFE NSW to Australian universities and higher education providers from December 2012 shows the credit that could be given for:
•the Diploma of Architectural Technology into a Bachelor of Construction Management and Property at the University of New South Wales;
•a Bachelor of Construction at the UTS; and
•a Bachelor of Housing and a Bachelor of Construction Management at the University of Western Sydney (now known as the Western Sydney University).
The amount of credit given varies. If a student has achieved credit or a distinction level for the diploma, then a maximum of one semester advanced standing may be given towards the Bachelor of Construction Management and Property at the University of New South Wales and the Bachelor of Construction at the UTS. For the Bachelor of Housing at Western Sydney University, the student would get one year's credit towards a three year degree, and for the Bachelor of Construction Management, one year's credit towards a four year degree.
Another example of how the giving of credit varies between educational institutions is that the University of Canberra specifically permits credit for AQF qualifications at level 4 towards its bachelor degrees whereas Curtin does not.
Professor Pollock states that in regard to the giving of credit for diplomas, Curtin's policy is consistent with the University of Western Sydney and slightly more generous than the University of New South Wales and the UTS, although Curtin does not have any specific articulation agreements with those institutions concerning architectural studies.
Professor Pollock states that despite the fact that the online Bachelor Degree is a new course and not yet fully accredited by the relevant professional body, Curtin is very experienced in formulating policies and procedures concerning prior learning and in assessing students who are applying for credit towards the regular undergraduate course in architecture.
The evidence of Associate Professor Werner Soontiens
Associate Professor Soontiens is the Director, Student Engagement in the Faculty of Humanities at Curtin. He has responsibility, on behalf of the Pro Vice‑Chancellor (Professor Franzmann), for dealing with student appeals and complaints.
His evidence was as follows.
Between the period 3 October 2014 (when he was forwarded an enquiry made by Mr Mewett to Curtin's counselling service) and 5 November 2014 (when Professor Franzmann wrote to Mr Mewett with her decision regarding the credit allowed for prior learning), Associate Professor Soontiens communicated and liaised with Mr Mewett and the relevant officers at Curtin in the investigation of Mr Mewett's complaint.
During that time, Associate Professor Soontiens said that he:
•arranged for the complaint to be taken orally at Mr Mewett's request;
•listened to the recording of the complaint;
•spoke to the Head of School and the OUA Coordinator of the School of Built Environment;
•appointed Associate Professor Reena Tiwari in the School of Built Environment as an independent assessor for the purpose of Mr Mewett's complaint so as to take a fresh look at the recognised (prior) learning mapping relevant to Mr Mewett's application;
•liaised with Professor Twari;
•sought advice from the University Manager of Credit Recognised Learning to check that his interpretation of policy was correct;
•sought advice from the officer who manages the Ethics and Equity and Social Justice team at Curtin; and
•met twice with the Pro Vice‑Chancellor, Professor Franzmann, to review the case and determine an appropriate response to Mr Mewett.
Concerning the process of having Mr Mewett make his complaint orally, which was something new for Curtin, Associate Professor Soontiens said that he accepts that Curtin 'stumbled, maybe as a university slightly in terms of ‑ getting our act together'. However, he submits that regular contact was made with Mr Mewett during the complaint process (T:57; 14.10.15).
Associate Professor Soontiens states that despite its request, Curtin has not received any additional material from Mr Mewett to progress his request for credit on his work/life experiences.
Curtin's submission on the alleged discrimination
Curtin's case may be summarised as follows.
1.Curtin has not refused to accept Mr Mewett's admission as a student in the Bachelor Degree, nor placed any term or condition on his enrolment.
2.Mr Mewett has not been subject to a detriment in not allowing him credit for prior learning for the incomplete Diploma in Architectural Technology.
3.Even if it could be said that Mr Mewett has been deprived of a benefit in Curtin refusing the credit for prior learning (and this is not conceded), Mr Mewett's claim must, so Curtin contends, fail on the facts of the case.
4.Mr Mewett suffers from a major (treatment resistant) depressive disorder. However, he has not provided expert evidence to explain how that condition affects him, or would affect people generally who suffer from such a disorder.
5.Curtin's policy on giving credit for prior learning is reasonable in the circumstances.
6.Curtin is authorised to self‑accredit its courses for the purposes of the Tertiary Education Quality and Standards Agency Act 2011(Cth).
7.Higher education providers such as Curtin that self‑accredit courses are given responsibility for determining how to assess the credit to be given in their own courses for units studied at other tertiary education institutions.
8.It is open for different universities to adopt different policies.
9.In essence, Mr Mewett is asking that he be treated as if he has completed the Diploma in Architectural Technology when he has not completed that award. This is, in itself, inconsistent with ensuring the academic integrity and worth of Mr Mewett's Bachelor Degree.
10.Mr Mewett has successfully completed a Diploma of Interactive Digital Media. This demonstrates that Mr Mewett is capable of completing a diploma course, and he has not provided any expert or other evidence as to why his impairment prevents him from completing the Diploma in Architectural Technology.
11.Mr Mewett's side claim that Curtin failed to genuinely engage with him in the process of deciding the credit for prior learning has no relevant connection with his impairment and does not amount to discrimination for the purposes of the EO Act.
12.In any event, Mr Mewett was given ample opportunity to discuss his application for credit for prior learning, as the evidence of Associate Professor Soontiens demonstrates.
13.Mr Mewett confirmed in cross‑examination that he has not provided Curtin with a more extensive CV and other documentation to substantiate a case for credit for prior learning for his work/life experiences and his 'portfolio'. He has not established why he is not able to provide that documentation.
Discussion of the issues in the case
Section 66I of the EO Act provides that it is unlawful for an educational authority to discriminate against a person on the ground of a person's impairment.
Mr Mewett is enrolled as a student with Curtin in the Bachelor Degree course. Section 66I(1) of the EO Act does not therefore apply, because the provision refers to an application by a person for admission as a student.
Section 66I(2) of the EO Act states that it is unlawful to discriminate against a student on the ground of the student's impairment by:
•denying the student access, or limiting the student's access, to any benefit provided by the educational authority;
•expelling the student; or
•subjecting the student to any other detriment.
Section 66I(2)(b) of the EO Act does not apply to Mr Mewett because he has not been expelled from Curtin.
Although not made precisely clear by Mr Mewett, it appears that as a consequence of what he alleges are the discriminatory actions of Curtin, he believes that he has been subjected to a detriment; that is, the right to have his prior learning taken fully into account in the Bachelor Degree: s 66I(2)(c) of the EO Act.
It may also be suggested that Mr Mewett's claim is that he is being denied the benefit of a credit for prior learning provided by Curtin: s 66I(2)a) of the EO Act.
It appears to me that Mr Mewett's application has both elements of what is commonly called direct discrimination (s 66A(1) of the EO Act) and indirect discrimination (s 66A(3) of the Act) in his enrolment for the online Bachelor Degree course at Curtin.
Mr Mewett claims that because of his impairment, he was treated less favourably by Curtin than a person without the impairment in the time taken to process his initial application for a credit for prior learning, and in the way in which Curtin dealt with his subsequent complaint (direct discrimination complaint), which was ultimately responded to by Professor Franzmann.
The more significant issue for Mr Mewett is the decision by Curtin not to allow him sufficient credit for prior learning, particularly, but not limited to, the decision not to allow him any credit for a partially completed Diploma of Architectural Technology at TAFE NSW. Mr Mewett claims that because of an impairment, he is unable to complete the Diploma of Architectural Technology (indirect discrimination complaint).
Mr Mewett bears the onus of proof in establishing his claims of discrimination. The standard of proof is the balance of probabilities but, in cases of alleged discrimination, the seriousness of the allegations requires the Tribunal to adopt the approach taken in Briginshaw v Briginshaw [1938] HCA; (1938) 60 CLR when assessing the strength of the evidence: see Abela v State of Victoria [2013] FCA 832); see also Edoo and Minister for Health [2010] WASAT 74 at [53] and [54].
It is common ground that Curtin is an educational authority for the purposes of the EO Act: s 4 and s 66I(1).
I am satisfied that Mr Mewett has an impairment as defined in s 4 of the EO Act. His impairment is depression and a general anxiety disorder, the most recent diagnosis having been made by his general practitioner, Dr Anand, in February 2015 and which is consistent with earlier assessments made in 2012 and 2014. I also accept the assessment of the psychiatrist, Dr Baker, in 2012, that the impairment is difficult to treat and is likely a permanent condition.
Mr Mewett has provided no medical evidence to support the existence of the other conditions mentioned in the documents filed with the Tribunal – namely, Asperger's Syndrome and vascular dementia.
I will first deal with the direct discrimination complaint.
To sustain a complaint of direct discrimination Mr Mewett has to show that because of his impairment, Curtin has treated him less favourably than Curtin treats, or would treat, a person without his impairment in the same circumstances, or in circumstances that are not materially different: s 66A(1).
The essence of Mr Mewett's complaint is that Curtin took too long to process his initial application for credit for prior learning, and also took too long to respond when he sought a review of the original decision to deny aspects of his prior learning.
Mr Mewett states that Curtin initially gave him credit for the Diploma in Architectural Technology but reversed the decision when it was discovered he had not completed the course.
Mr Mewett also alleges that Curtin failed to genuinely enter into discussions with him concerning the dispute about the amount of credit he should be given for his prior learning.
Mr Mewett submits that as a consequence of Curtin's intransigence, he was not able to consider whether, within the required timeframe, he should embark on an international study exchange in the United Kingdom.
I find that there were no elements of discriminatory behaviour in the conduct of Curtin in the way Mr Mewett's application for a credit for prior learning was handled.
The initial decision of Curtin to deny Mr Mewett a credit for prior learning for the Diploma in Architectural Technology was a decision based on the application of its academic policy, which applies to all students. Such a policy is required to maintain standards.
As to the way in which Mr Mewett was subsequently treated by Curtin, the evidence of Associate Professor Soontiens, which I accept, is that the process from the time of receiving Mr Mewett's enquiry to the final decision of Professor Franzmann was little more than one month (3 October to 5 November 2014). The evidence shows that in that time, Curtin needed to develop a means by which Mr Mewett could present his complaint orally ‑ a new process for Curtin ‑ and then go through a process to ensure that the final decision by Professor Franzmann had been checked at a number of levels, having regard to Curtin's academic and administrative structures.
Despite the admission, in passing, of Associate Professor Soontiens that Curtin may have 'stumbled' in its processes, I find that Curtin acted appropriately and reasonably in dealing with Mr Mewett's initial application for credit for prior learning and with his subsequent complaint. Contrary to the allegation by Mr Mewett, I find that Curtin went out of its way to make allowances for his impairment and to engage with him in the process of deciding the amount of credit he should ultimately be given for his prior learning.
Whatever happened to Mr Mewett in this process, none of it occurred on the ground of his impairment.
For these reasons, Mr Mewett's claim of direct discrimination must fail.
I will now turn to the indirect discrimination complaint. I will contextualise the complaint in terms of the decision by Curtin not to give credit for prior learning for the incomplete Diploma of Architectural Technology. Mr Mewett has also referred to his 'portfolio' and work/life experience, and units completed at the University of Canberra.
Mr Mewett must establish four separate matters if he is to prove indirect discrimination:
•First, he must show that Curtin requires him to comply with a requirement or condition.
•Secondly, he must show that a substantially higher proportion of persons without his impairment have complied, or are able to comply, with that requirement or condition.
•Thirdly, the requirement or condition must not be reasonable having regard to the circumstances of the case.
•Fourthly, the requirement or condition must be one with which Mr Mewett has not complied or is not able to comply: s 66A(3) of the EO Act.
As to the first matter, the question for Mr Mewett is whether the policy of Curtin not to allow any credit for prior learning for his incomplete Diploma of Architectural Technology is a 'requirement or condition'.
The words 'requirement or condition' are to be construed broadly and beneficially but, in each instance, should be formulated with some precision: Hurst and Devlin v Education Queensland [2005] FCA 405 (2005) EOC ¶93‑386 (rev'd on other grounds not affecting this point: [2006] FCAFC 100; (2006) 151 FCR 562) at [67] and [68] (Hurst) citing Waters and Others v Public Transport Corporation (1991) 168 CLR 461 (Waters).
The concept of 'requirement or condition' must involve more than what is inherent in what is being provided (Edney and Public Transport Authority [2006] WASAT 362 at [40] also citing Waters).
I am satisfied that the need to complete a particular course of education before receiving a credit against a course taken at a higher level is a 'requirement or condition' of the higher level course.
This can be contrasted with, for example, (and speaking generally), the need for every student in every course of education to undergo an assessment process to establish whether the student has met the course standards and therefore can ultimately be awarded the particular qualification. It might be argued that the notion of an assessment process would not be a requirement or condition of the course of education because the assessment process itself (as distinguished from the particulars of the assessment) is inherent in a course of education.
Curtin has developed a policy for the giving of credit for prior learning which is unique to it, and is therefore different to other higher education providers. This is permitted by the regulator. It is a particular requirement of Curtin that to receive a credit towards a level 7 bachelor course, the student must have completed any level 5 diploma course for which they are seeking credit recognition.
Faced with such a 'requirement or condition', Mr Mewett must then establish the existence of all the matters provided for in s 66A(3)(a) to s 66A(3)(c) of the EO Act to sustain a claim of discrimination.
For the following reasons, I am not satisfied that the evidence before me can support a finding that Mr Mewett is not able to comply with the requirement or condition that he complete the Diploma of Architectural Technology (s 66A(3)(c) of the EO Act).
The evidence upon which Mr Mewett mainly relies is the fact of his impairment, and his own view of the limitations and restrictions that impairment places on him and his ability to undertake and finish a particular course of education.
There is reference in Dr Baker's 2012 report, in the context of Mr Mewett's capacity to be employed, that his ability to learn new skills is likely to be 'severely impaired'.
However, as regards his educational capacity, Mr Mewett has produced no expert or other substantial evidence that he cannot complete a course of education such as the Diploma of Architectural Technology which requires him to attend TAFE NSW and participate directly with other students and teachers.
After all, in 2011, Mr Mewett completed a diploma course, the Diploma of Interactive Digital Media.
The February 2015 report of Dr Anand to the University of Sydney states with some precision the effects of Mr Mewett's impairment, such as impaired concentration and comprehension, memory disturbance, fatigue, procrastination and difficulty in making decisions.
These are broadly consistent, in my view, with how Mr Mewett sees his impairment, except perhaps where he maintains that he is, in addition, unable to associate with other students.
The assessment of Dr Anand is not that Mr Mewett cannot undertake a course of education by way of direct participation at an educational institution, but rather, that allowances should be made for his impairment. These include extra time to complete assignments and exams, a preference for working in smaller groups, rest breaks in exams, and that his presentations be given to teachers rather than before a class of other students.
Mr Mewett's claim is also possibly undermined by his own evidence that in late 2014, he considered undertaking a study exchange in the United Kingdom. I infer from that evidence that Mr Mewett believed that he could participate in such an exchange, despite his impairment. If so, this not consistent with his evidence that he cannot participate in a course of education directly with students and teachers.
In my view, it is sufficient to find that Mr Mewett has not provided evidence to the required standard that he is not able to comply with the requirement or condition that he complete the Diploma of Architectural Technology before being given a credit towards the Bachelor Degree.
His case must fail on that basis.
Even if I am wrong in this, I am persuaded by Curtin's submission that Mr Mewett has not, in any event, demonstrated that Curtin's policy on the giving of credit for prior learning is not reasonable, having regard to the circumstances of the case: s 66A(3)(b) of the EO Act.
The question of reasonableness was considered in Hurst, at [71] and [72]:
[The concept] requires a consideration of all relevant circumstances and a judgment whether, objectively, it was reasonable for the discriminator to impose the requirement or condition. The relevant circumstances will include the reasons advanced for the requirement or condition; the effect upon those disabled persons who cannot comply with the requirement or condition; and any alternative requirement or condition or other method addressing the reasons advanced that are not discriminatory within the meaning of [the EO Act].
A requirement or condition will not be reasonable simply because it is convenient or even more convenient. It must be reasonable. On the other hand, it need not be the only cause of action available. In the end result, it just has to be reasonable.
Curtin is registered as a higher education provider, which means that it is compliant with the relevant legislative and policy requirements that allow it to set for itself ‑ amongst other things, the way it treats qualifications from other learning institutions in allowing credit towards its own courses.
Curtin's general policy regarding credit for prior learning is that units studied in a diploma course (vocational education and training) will only be eligible for credit towards a bachelor degree course at Curtin if the diploma course has been completed.
I accept as reasonable the evidence of Professor Pollock that, in not applying credit for incomplete diplomas, Curtin has formed a view that it is not clear what outcomes may have been achieved by a student partway through such a course, and it is therefore difficult to allocate a credit towards a (higher) bachelor course.
Thus, requiring Curtin to give Mr Mewett credit for his incomplete Diploma of Architectural Technology would involve the Tribunal, in effect, adjudicating on academic standards and going behind the design of the Bachelor Degree. This is not something which is ordinarily considered suitable for a judicial body to do: cf Tanious v Australian Medical Council Ltd [2015] NSWCA 189.
As for Mr Mewett's claim that Curtin should give him greater credit for the units he completed at the University of Canberra, I am not satisfied that this claim relates to his impairment. Mr Mewett has not produced sufficient material to justify his claim.
Regarding Mr Mewett's 'portfolio' and work/life experience, Curtin has not precluded Mr Mewett from being given credit for these matters, but Curtin has required more information before the assessment for credit may be given. Mr Mewett's evidence is that he has provided what he is capable of providing. However, I am not satisfied there is sufficient evidence to find that this situation relevantly relates to his impairment.
Mr Mewett's application is therefore dismissed.
Order
For all of the reasons given above, the Tribunal makes the following orders:
1.The application in proceedings SAT 43/2014 Scott Mewett and Curtin University of Technology is dismissed.
I certify that this and the preceding [141] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, SENIOR MEMBER
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