Parkes v The University of Newcastle

[2011] NSWADT 302

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Parkes v The University of Newcastle [2011] NSWADT 302
Hearing dates:	6 December 2011
Decision date:	20 December 2011
Jurisdiction:	Equal Opportunity Division
Before:	Magistrate N Hennessy, Deputy President
Decision:	Leave is refused for the complaint to proceed.
Catchwords:	LEAVE - discrimination - race and disability - student complaint against University suspension after threats of harm - complaints declined as lacking in substance - leave required for complaints to proceed - leave refused
Legislation Cited:	Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997
Cases Cited:	Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC Dawkins v Department of Environment [1993] ICR 517 Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26; Dutt v Central Coast Area Health Service [2002] NSWADT 133 Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92
Category:	Interlocutory applications
Parties:	Jesos Adrian Parkes (Applicant) The University of Newcastle (Respondent)
Representation:	Counsel R Warren (Respondent) J Parkes (Applicant in person) Hicksons Lawyers (Respondent)
File Number(s):	111119

REasons for decision

Introduction

1. Mr Parkes is a student at the University of Newcastle. He says he is a Rastafarian. He has a history of mental illness but there was no evidence as to the precise nature of that illness. He made the following allegations of race and disability discrimination against the University:

(1)   on 28 February 2011 I was playing music on youtube before the class when Dr Wilks "stormed into the lecture late as he always did, pointed his finger in my face (and told me) never to play music again";

(2)   In my Religion, Nature and Morality class, my lecturer, Dr Wilks, warned me never to ask a question in his class again;

(3)   the University suspended me for a semester for no reason.

1. The President of the Anti-Discrimination Board declined the complaints as lacking in substance. Mr Parkes requested that the complaint be referred to the Tribunal.

1. Section 96 of the Anti-Discrimination Act 1977 (AD Act) provides that a complaint that is referred to the Tribunal after it has been declined by the President, cannot proceed unless the Tribunal gives its permission or 'leave'. The issue is whether leave should be granted for Mr Parkes' complaint to go ahead

1. In Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Schmidt AJ emphasised that leave applications should be determined on the basis of fairness and justice and went on to say that:

Whatever the contest between the parties might be, the question of leave must be determined having in mind the purposes of the Act, which includes precluding unlawful discrimination and to permit those who have been so discriminated against, a remedy. Given that the legislation does not require all complaints to be investigated and dealt with, this means that while on the one hand, an obviously meritorious complaint will not be refused leave, where, for example on the other, it is apparent that the complaint lacks substance, or where the complaint is already being redressed elsewhere, leave may be refused, if that is what justice dictates .

1. When deciding whether to grant leave, the Tribunal may have regard to the grounds on which the President may decline a complaint under s 92(1) of the AD Act , including that the complaint lacks substance or the nature of the conduct is such that further action is not warranted: Jones & Anor v Ekermawi [2009] NSWCA 388 at [60]. The applicant bears the onus of persuading the Tribunal that it is appropriate for leave to be granted. While it is not the Tribunal's role when determining a leave application to decide whether the complaint has been substantiated, the merits of the complaint are relevant.

The complaint

1. The University said that Mr Parkes had been suspended because, on 31 May 2011 he had e-mailed Dr Wilks making threatening comments. The subject of the email was a complaint about being given a lower mark for an assignment than other members in his group. He said every member of the group should have received the same mark. He then wrote:

Thank you for your response. People that murder don't just murder, a lot of planning goes into it. When you push a Rasta Man too far, destruction is unavoidable. I refresh your memory with Crazy Man in Mayfield, youtube, Mayfield woollies (sic). No criminal conviction ever recorded before or after mi (sic) name and I am over 400 years old, SLAVERY.

1. The "Crazy Man in Mayfield" reference is to a youtube clip showing Mr Parkes smashing car windows with a large piece of wood in the car park of Woolworths in Mayfield and subsequently being arrested by police.

1. Mr Parkes' explanation for writing the e-mail was that he was just telling Dr Wilks a story about what happened to him when he was experiencing a psychotic episode. Shortly after that episode he says that nurses injected him with risperdal consta, a brand name for the anti-psychotic medication risperidone.

1. On 6 June 2011 the Vice-Chancellor sent Mr Parkes a Notice of Immediate Suspension and told him that a hearing must be conducted within four weeks. The disciplinary process proceeded and Mr Parkes was suspended for a semester.

1. The University denied Mr Parkes' allegation that Dr Wilks treated him less favourably than other students by telling him not to ask questions. Dr Wilks recalls telling Mr Parkes that he had asked enough questions for now, however he denies telling him not to ask any questions at all in his lectures. The week after that lecture, Mr Parkes complained to Dr Wilks that a female student had been allowed to ask numerous questions in one lecture. Dr Wilks' response was that the questions the student was asking were relevant. Dr Wilks admits that, in hindsight, this incident could have been handled better. However the University denies discriminating against Mr Parkes on the grounds of his race or disability.

1. Finally, the University denies the allegation that Dr Wilks "stormed into the lecture late as he always did, pointed his finger in my face (and told me) never to play music." Dr Wilks' version is that on 28 February 2011 he was walking towards a lecture theatre when he heard loud music. He walked in and found Mr Parkes sitting at the front of the class behind the University's equipment console. He saw that Mr Parkes had turned on the computer, accessed the Internet and was playing a youtube video clip of a live band at maximum volume. Dr Wilks walked over to where Mr Parkes was sitting and told him to turn the music off and not to do that again. The University maintains that that was an appropriate response in the circumstances.

1. The Tribunal gave the following reasons for declining the complaint:

Your exclusion from the University of Newcastle was due to the threats you made against Dr Colin Wilks.

The University judged these threats to be credible.

The University followed its procedures to suspend you from the University campus due to a bona fide concern for the University community.

The University would have followed the same procedures for any student regardless of their race or disability.

There is no evidence that your race or disability was a factor in the University's decisions.

Merits of the complaints

1. For Mr Parkes to prove that the University has discriminated against him 'directly' on the ground of disability or race, he would have to prove that:

(1)   he has a disability or is a member of a particular race: s4, s 49A;

(2)   the University expelled him or subjected him to some other detriment: s 49L(2) and s 17(2);

(3)   the treatment afforded to Mr Parkes was less favourable than the treatment that was or would have been afforded to a person not of his race or without his disability (differential treatment): s 7(1)(a) and s 49B(1)(a); and

(1)   at least one of the reasons for the treatment was his race or disability: (causation) s 7(1)(a) and s 49B(1)(a).

1. I do not understand Mr Parkes to be saying that the discrimination to which he was allegedly subjected was 'indirect' discrimination as defined in s 7(1)(b) and s 49B(1)(b).

Disability and race

1. Even though there is no evidence of the nature or extent of Mr Parkes' mental illness, it is likely that if the matter were to proceed, a Tribunal hearing the complaint would find that he has a disability. It is also likely that the Tribunal would find that Mr Parkes is a member of a certain race, although he has not disclosed that race other than to say he is a Rastafarian. Courts have held that Rastafarians do not have a sufficient shared history to be regarded as a racial group: Dawkins v Department of Environment [1993] ICR 517.

Detriment

1. A Tribunal hearing this complaint is also likely to find that the University has subjected Mr Parkes to a detriment by suspending him. Whether or not the other allegations are sufficiently serious to constitute a detriment is debatable, but for the purpose of these proceedings, I accept that they are.

Differential treatment

1. The first component of the test for direct discrimination is the 'differential treatment' test. The treatment afforded to Mr Parkes must be compared with the treatment that would have been afforded to a person without Mr Parkes' disability or a person of a different race in the same or similar circumstances. In relation to the allegation about being told not to ask questions, Mr Parkes nominated a "white" student as an example of a person who asked numerous questions without being censured. No comparator was suggested in relation to the other allegations.

1. The University's response to the "white" student as a comparator was that the circumstances were materially different because she was asking relevant questions.

1. In the absence of an actual person whose treatment could be compared with, in relation to being suspended and being asked to stop playing music before the lecture, the treatment given to Mr Parkes, the Tribunal would have to rely on a hypothetical person in a comparable situation. In those circumstances, the differential treatment and causation requirements merge because the Tribunal could only reach the conclusion that the respondent treated the applicant less favourably than a hypothetical person without a disability would have been treated by determining that disability was a reason for that different treatment: Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26; Dutt v Central Coast Area Health Service [2002] NSWADT 133.

Causation

1. At least one of the reasons for being treated in the way he was treated must be Mr Parkes' race or his disability: s 4A. In Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 although interpreting the words 'because of' rather than 'on the ground of', the majority of the High Court explained that the accepted test for causation in the context of anti-discrimination legislation is to ask why the aggrieved person was treated as they were. The focus is on the 'true basis' (per Gleeson CJ at 102), 'genuine basis' (Gleeson CJ at 102), or the 'real reason' (McHugh & Kirby JJ at 144) for that treatment.

1. In relation to the request not to ask questions, it is likely that a Tribunal hearing this case would be satisfied that it was the nature and persistence of those questions, rather than Mr Parkes' race or disability, that prompted Dr Wilks' response.

1. Similarly, in relation to the request to turn off the music and not access the University's computer equipment, it is likely that a Tribunal hearing this case would be satisfied that it was the nature and extent of that conduct, rather than Mr Parkes' race or disability, that prompted Dr Wilks' response.

1. In relation to the suspension, a Tribunal hearing this case is unlikely to accept Mr Parkes' explanation for the email. The email contains a thinly veiled threat to murder Dr Wilks. There is no reason for Mr Parkes to "tell Dr Wilks a story" in the context of complaining about his assessment mark. This allegations lacks merit because the overwhelming likelihood is that a Tribunal would find that the suspension was not on the ground of Mr Parkes' race or disability but was an appropriate response to a serious threat.

Order

Leave is refused for the complaint to proceed.

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Decision last updated: 20 December 2011