Spencer v University of New South Wales

[2017] NSWCATAD 193

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Spencer v University of New South Wales [2017] NSWCATAD 193
Hearing dates:	23 May 2017
Date of orders:	19 June 2017
Decision date:	19 June 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Hennessy LCM, Deputy President
Decision:	1. Leave is refused for Mr Spencer’s complaint of race discrimination under the Anti-Discrimination Act 1977 (NSW) to proceed. 2. Leave is refused for Mr Spencer’s complaint of victimisation under the Anti-Discrimination Act 1977 (NSW) to proceed.
Catchwords:	HUMAN RIGHTS – complaint of disability discrimination – where complaints declined as lacking in substance by President of Anti-Discrimination Board – whether fair and just for complaints to proceed
Legislation Cited:	Anti-Discrimination Act 1977 (NSW)
Cases Cited:	Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44
Category:	Procedural and other rulings
Parties:	Henry Spencer (Applicant) University of New South Wales (Respondent)
Representation:	Counsel: B Tronson (Respondent)   Applicant (self-represented) E Grinston (University of NSW) (Respondent)
File Number(s):	2017/00117273
Publication restriction:	Nil

REASONS FOR DECISION

Overview

1. Mr Spencer applied to the University of NSW (UNSW) to study the Master of Biomedical Engineering degree in late 2014. He has now completed the Masters program and is eligible to graduate. He complained to the President of the Anti-Discrimination Board that UNSW had discriminated against him because he is African-American and victimised him for making complaints: Anti-Discrimination Act 1977 (NSW), s 17(2) and s 50. The allegations relate to several decisions including the awarding of credits for previous courses, findings of plagiarism, methods of marking group assignments and being excluded from campus after another student complained about him.

2. The President declined Mr Spencer’s complaints as lacking in substance: Anti-Discrimination Act, s 92(1)(a)(i). He has asked the Tribunal for permission for the complaints to go ahead: Anti-Discrimination Act, s 93A(1).

3. If the matter goes to a hearing, to establish race discrimination, Mr Spencer would have to prove that UNSW has treated him less favourably than they treated or would have treated, a student who was not African- American and that that treatment was on the ground of his race: Anti-Discrimination Act, s 17(2) and s 7(1). To establish victimisation, Mr Spencer would have to prove, for example, that UNSW subjected him to a detriment because he complained about discriminatory conduct: Anti-Discrimination Act, s 50(1)(c).

4. Mr Spencer participated by telephone from the United States of America where he now lives.

5. I have decided that there is insufficient evidence from which an inference could be drawn that any of the decisions that UNSW made were on the ground of Mr Spencer’s race or because he had complained previously. The complaints of race discrimination and victimisation lack substance and it would not be fair or just for them to proceed to a hearing.

Legal principles

6. The Supreme Court set out the principles to be applied when determining whether to grant leave for declined complaints to go ahead in Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [28] – [38]. In that case Schmidt J:

(1) emphasised that a cautious approach should be adopted because a refusal of leave will “finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights”;

(2) found that the Tribunal’s discretion is unfettered and is not confined to the grounds on which the President of the Anti-Discrimination Board may decline a complaint;

(3) concluded that leave must be granted or refused “depending on what (is) fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted”; and

(4) noted that where it is apparent that the complaint lacks substance leave may be refused, if that is what justice dictates.

Summary of allegations

7. In his complaint to the President of the Anti-Discrimination Board Mr Spencer made eight allegations of discriminatory treatment. In summary, the allegations were that UNSW:

1. initially admitted him into the Graduate Diploma of Biomedical Engineering instead of the Masters program and failed to advise him to apply to do a joint degree;

2. initially refused to give him any credit for other courses he had completed and ultimately awarded him 18 credit units (the equivalent of 3 subjects) when he should have been awarded more units of credit;

3. threatened to withdraw credit if he did not stop ‘agitating’;

4. falsely accused him of plagiarism and added his name to the plagiarism register;

5. gave him a lower mark than students of a different race who worked with him on a group assignment;

6. took too long to investigate a complaint by another student against him, restricted him from the campus for 2 weeks and failed to accept his evidence about what had happened;

7. failed to penalise the student who had complained to the same extent as him for making false complaints about him and attempting to blackmail him to do her assignment; and

8. intimidated him and covered up the truth.

8. Mr Spencer referred to breaches of laws other than the Anti-Discrimination Act such as the law of defamation. This Tribunal can only decide whether there has been a breach of the Anti-Discrimination Act.

Admission to Graduate Diploma instead of Masters program and failure to advise to do a joint degree

9. Admission to the Masters program requires satisfactory completion of a four-year Bachelor of Engineering or a four-year bachelor degree in a bio-medical health-related discipline including one year of university level mathematics. Despite applying for admission to the Masters program, Mr Spencer was initially offered admission to the Graduate Diploma Program. After he complained he was offered admission to the Masters program.

10. In these cases the School of Biomedical Engineering (the School) said it was its policy to offer admission to the Graduate Diploma Program first and then allow students to transfer to the Masters program if their performance was satisfactory. The reason for the initial decision was said to be that Mr Spencer’s academic transcripts did not clearly indicate that he had completed the required 4 year undergraduate degree and one year of university level mathematics.

11. Mr Spencer’s version of events is that he provided UNSW with information about the subjects he had completed at the Florida Atlantic University.

12. Mr Spencer says that the length of his undergraduate degree and the extent of his study of Mathematics should have been clear to UNSW from the information he provided in the attachments to his application including the program and course descriptions.

13. Alternatively, if in doubt, he says that UNSW should have contacted the Florida Atlantic University. He considered that the way his qualifications had been assessed to be “shocking and unprofessional”.

14. Mr Spencer also complained that UNSW forced him to complete more subjects than was necessary and should have advised him to do a joint degree of mechanical engineering and the Masters degree. UNSW says that Mr Spencer never applied for entry to the dual degree, which takes 5 years full-time study to complete, and that degree has different entry requirements from the Masters program.

Credit for completed subjects and threat to withdraw credit

Allegations

15. Mr Spencer said that he found it very insulting that UNSW had only given him a total of 18 units of credit when that was not in accordance with UNSW’s policy. Although it is not clear from his submissions which additional subjects he should have received credit for, I understand that Mr Spencer is submitting that UNSW should, at least, have given him credit for undergraduate foundation engineering courses.

16. Mr Spencer also alleges that the Head of School, Professor Whitelock, told him during a meeting on 4 April 2016 that he would withdraw the credit for the Statistics subject unless he stopped “agitating” or stopped “pushing”. Professor Whitelock denies making that comment and says that the meeting was cordial. Following that meeting Mr Spencer lodged a complaint because, in his words, “no-one has the right to nullify my qualifications”.

Policy on transfer credits

17. The following passages are extracted from UNSW’s policy for granting units of credit for subjects already completed:

A postgraduate coursework student may be granted credit by the programme authority. The credit granted must be consistent with the guidelines detailed below. Any credit granted must also be consistent with the rules governing progression within the program as determined by the relevant faculty.

...

At least 50% of the program requirements must be completed at UNSW for the award of a UNSW postgraduate coursework degree or diploma. Credit transfer to a maximum of 50% of UNSW program requirements may be granted for completed or partially completed postgraduate awards from UNSW or from another institution.

…

Some postgraduate programs include preliminary courses similar in content to undergraduate courses, and provide exemption from these courses for students with the appropriate undergraduate background. In such programs, postgraduate coursework students may be granted credit on the basis of a completed undergraduate degree but must complete a program of study equivalent to one year of full-time study or 48 units of credit.

18. My reading of this policy to the extent it is relevant to Mr Spencer’s case is that:

1. at least 36 of the 72 units for the Masters degree (50%) must be completed at UNSW;

2. credit may be given for completed or partially completed postgraduate awards from UNSW or other Universities;

3. some postgraduate programs provide exemption from preliminary courses for students with the appropriate undergraduate background.

Background

19. In February 2015 UNSW gave Mr Spencer 12 units of credit out of a total of 72 units required to be completed for the Masters degree. That was the equivalent of two subjects because each subject is worth six units of credit.

20. Mr Spencer relied on the partial completion of a Doctor of Pharmacy program from the Palm Beach Atlantic University to support his application. He did not provide a transcript from that University and UNSW says it could not verify that the degree from that institution was a postgraduate degree. The pharmacy course is listed under “Traditional Undergraduate” on the relevant Palm Beach University website. UNSW acknowledged that it was able to see from his Florida Atlantic University transcript that he had received credits for pharmacy subjects that were completed at Palm Beach Atlantic University. UNSW decided to award Mr Spencer 12 credit units for these subjects. The credits were said to be in recognition of the total volume of his previous studies.

21. In March 2016 Mr Spencer applied for a further six units of credit so that he did not have to complete the subject in which he had enrolled called Engineering Statistics. The School initially declined the application but after Mr Spencer objected, the School approved the awarding of a further credit of six units for that subject

22. The School told Mr Spencer in an email from the Student Manager dated 4 March 2016, that it does not award credits to students for previous courses that have been completed at an undergraduate level. In addition, because the Masters program does not have core or mandatory subjects, it is not compulsory for him to complete the Engineering Statistics subject. As all students can select from a large number of elective subjects he can avoid any repetition arising from previously completed undergraduate courses. Mr Spencer was told that if he had already completed several statistics courses he should think about changing classes.

23. UNSW denies that it failed to apply the credit transfer policy to Mr Spencer’s case. According to UNSW, at least for the last 6 years, no other student in the Masters program has received any transfer credits. When questioned about the lack of evidence for that assertion, UNSW submitted that it cannot provide documentary evidence of the number of students in the Masters program who were given transfer credits when no-one received any credits.

Allegation of plagiarism

24. One of Mr Spencer’s lecturers, Dr Martens, identified a passage in his assignment and wrote, “You can’t just use a section of text. You must put into your own words. This is over 10% plagiarism.” Mr Spencer says that 23 points were deducted from his mark. Other correspondence from his advocate suggests that 5 marks were deducted. UNSW also says that 5 marks were deducted.

25. Mr Spencer alleges that Dr Martens said in the class that, “If you hear your name called, know that you have plagiarised and you have to come and see me”. Mr Spencer says that Dr Martens called his name and he went to see her. Dr Martens denies that she called out Mr Spencer’s name in class but agrees that she met with Mr Spencer about the issue of plagiarism.

26. According to UNSW, plagiarism software detected that Mr Spencer’s essay contained more than 20% of direct citations or quotes from third party sources. The UNSW’s policy, “UNSW Managing Plagiarism for Students enrolled in Coursework Procedure” describes three levels of plagiarism. UNSW described Mr Spencer’s conduct as “Level 1” plagiarism. The first level occurs when a post graduate student in their first semester who is an international student or who has not studied for some time, plagiarises another’s work.

27. Mr Spencer provided the Tribunal with a copy of the relevant passage from his assignment and submitted that he had not plagiarised that text because it was in quotation marks, italicised and in bold font. After complaining, Mr Spencer says that the Head of School, Professor Whitelock, wrote to the solicitor who had written on Mr Spencer’s behalf, to say that he had reviewed the assignment. Professor Whitelock agreed that this was not a case of plagiarism because Mr Spencer had put the passage in quotation marks. Professor Whitelock stated that Mr Spencer would not be placed on the School’s plagiarism register. Mr Spencer says that in August 2016 he found out that he had been placed on the plagiarism register.

28. In correspondence to the President of the Anti-Discrimination Board and at the hearing, UNSW denied that Mr Spencer’s name had ever been placed on the plagiarism register and that even if it had, no teaching staff has access to the Level 1 Plagiarism Register.

Marking a group report individually

29. Mr Spencer complained about the way Dr Martens graded a group assignment as he did not consider it was marked in accordance with the policy in the course outline.

30. Mr Spencer’s version of events is that the Major Project for the subject of Biocompatibility consisted of a report to be written by each student individually and two sections to be completed by the group. Mr Spencer was in a group of 5 with 2 students from a Caucasian background, 2 students from an Asian background and himself. Mr Spencer alleges that one of the Caucasian students “took” part of the assignment that he and one of the Asian students had been working on. Dr Martens allegedly told the group that even though it was group work, she would be marking it as if it was an individual assignment. Each student was given a different grade for group work.

31. Mr Spencer says he received a mark of 53 while the Caucasian student received a mark of 89. After complaining, Mr Spencer was awarded another 5 marks. According to Mr Spencer, nothing in the course outline allows for grading a group assignment as if it was individually written. He says that “grading group work like this provides an avenue for discriminating against students that (Dr Martens) does not like”. Mr Spencer says he cannot be sure of Dr Martens’ impartiality because he has reason to believe she does not like him.

32. On another occasion, Mr Spencer alleged that the reason the marking system was changed was in retaliation for him complaining about the plagiarism finding.

33. UNSW’s version of events is that each student was required to identify their individual contribution to the assignment so that an individual assessment could be given. Mr Spencer objected to that approach and requested that a global group mark be given to each student. Following a vote by the members of the group, each student asked to be assessed individually. Mr Spencer denies that there was a vote. He maintains that he was being set up to fail the course and he was not the only victim. Other students were also unfairly disadvantaged by the decisions taken by Dr Martens.

34. Mr Spencer received a mark of 53% for his contribution. The other students’ marks were 70%, 66%, 57% and 55%. According to UNSW, the two highest marks were not awarded to the Caucasian members of the group. Later, Mr Spencer told Dr Martens that he was not happy with that approach. Following a meeting about the assessment for the course, Mr Spencer was offered the group mark of 58% for the second assignment.

Complaint by another student

35. After receiving a complaint from a female student, Professor Wai Fong Chua wrote to Mr Spencer on 21 September 2015 advising him that allegations had been made that he had “engaged in unwelcome communications with female students in person and via email and text of a sexual and intimidating nature”.

36. Professor Wai Fong Chua decided to prohibit Mr Spencer from attending the campus for 14 days from 21 September 2015 until 5 October 2015 while the allegations were being investigated. Mr Spencer says that was not justified because he responded to the complaint on the same day with evidence that he did not do what the female student had alleged. He says he was forced to miss a mid-term examination which he had to make up. According to UNSW, Mr Spencer was permitted to enter campus to sit for the exam with everyone else but he chose not to do so because of his state of mind at that time.

37. On 27 November 2015, following an investigation, some of the allegations of serious misconduct were substantiated and some were not substantiated. The first finding was that Mr Spencer had not engaged in any ‘in person’ harassment or any harassment via text message. The second finding was that SMS correspondence on 15 September 2015 was not substantiated because the text messages were between two other students and Mr Spencer, not between the female student who complained and Mr Spencer. The third finding was that the following email to the female student, which Mr Spencer copied to UNSW staff, amounted to “threatening or intimidating behaviour”:

Go walk in front of a MAC truck you piece of racist trash. You think I give a rip what you do? You messing with the wrong cat.

You messed with the wrong person. You little snake.

38. Mr Spencer claimed that the student who complained was blackmailing him to do her university assignments and that the email about walking in front of a MAC truck was “black talk for get off my face”. He said he wrote the email to express his frustration with the way that student was behaving towards him and he did not intend it to be a threat.

39. The fourth finding was that in SMS correspondence with another student, Student A, between 15 July 2015 and 20 September 2015, Mr Spencer engaged in correspondence of a romantic and sexual nature. Each time Student A indicated that she did not wish to talk about such things and preferred to be friends. UNSW rejected Mr Spencer’s assertion that the correspondence did not constitute harassment because Student A initiated all the conversations and if they were unwelcome she could have stopped participating. Following investigation the finding was made that these conversations constituted “failure to treat others equitable and without discrimination and harassment”. Mr Spencer was reprimanded and the matter was recorded in the Student Misconduct Register.

38. Mr Spencer complains about the time taken to complete the investigation (just over 2 months), the fact that he was excluded from campus for 14 days and the failure of UNSW to accept his evidence and find that he did not do what the female student had alleged.

Addressing Mr Spencer’s counter complaint

41. Mr Spencer complained about the female student who had complained about him. He said weeks passed before his complaint was acknowledged and although the student had attempted to blackmail him, she was not prevented from attending campus while the complaint was being investigated. As far as he knows, that student was not penalised. Mr Spencer regards the way he was treated compared to the way the other student was treated as amounting to race discrimination.

42. According to UNSW, Mr Spencer’s complaint was acknowledged on 24 September 2015, the same day it was made. A decision was issued on 8 December 2015, two and a half months later. The complaint was partially upheld. The other student was counselled about the impact that her online comments could have on others. UNSW maintains that counselling Mr Spencer and the other student about inappropriate academic practices was the correct approach. The other student was not restricted from campus because, unlike Mr Spencer, she did not threaten violence against anyone.

Intimidation and cover-up

43. Mr Spencer complained about the way the School treated him in a letter to the Vice Chancellor. He says that the response he received from Ms Pettigrew, Legal Counsel UNSW, was a ‘cover up’. I understand this allegation to be that UNSW discriminated against him on the ground of his race by not adequately investigating his complaints.

Should the complaints go ahead?

Overview

44. The Tribunal’s role is to determine whether it is fair and just for the complaints to go ahead. In this case that depends on the likelihood that, even if Mr Spencer’s version of events is accepted, he will be able to prove that any of UNSW’s conduct was victimisation as defined in s 50 of the Anti-Discrimination Act or race discrimination which is unlawful under s 17(2) of that Act. If the likelihood is so low that it is apparent that his complaints lack substance, it will not be fair or just to grant leave.

Victimisation complaints

45. The alleged conduct which Mr Spencer describes as victimisation was that:

1. Dr Martens marked a group report individually and gave him a lower mark than the other members of the group; and

2. Professor Whitelock told him at a meeting on 4 April 2016 to withdraw credit for the Engineering Statistics subject unless he stopped “agitating” or stopped “pushing”.

46. It is unlawful for a person to victimise a student because they complained that they had been discriminated against on the ground of their race, or any other ground: Anti-Discrimination Act, s 50(1)(c):

50 Victimisation

(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.

47. The phrase “on the ground” in s 50(1) has been interpreted to mean one of the “real”, “genuine” or “true” reasons for subjecting Mr Spencer to a detriment: Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20 at [37].

48. Mr Spencer alleges Dr Martens changed the marking system in retaliation for him complaining about the plagiarism finding. He maintains that he was being set up to fail the course and he was not the only victim. He says other students were also unfairly disadvantaged by the decisions taken by Dr Martens.

49. Mr Spencer would not be able to prove that changing the marking system was a breach of s 50 of the Anti-Discrimination Act because the change was not made as a result of him making a complaint under the Anti-Discrimination Act or for any of the other reasons listed in s 50(1)(a), (b) or (d). The marking system was changed after he complained of plagiarism but that complaint made no reference to the Anti-Discrimination Act or any ground of discrimination under that Act. This part of the complaint lacks substance and permission for it to go ahead is refused.

50. The same reasoning and conclusion applies to comments allegedly made by Professor Whitelock during the meeting on 4 April 2016. Mr Spencer’s complaints about credit transfers do not fall within any of the descriptions in s 50(1)(a) – (d). This part of the complaint lacks substance and permission for it to go ahead is refused.

51. In summary, to the extent that Mr Spencer alleges victimisation in s 50 of the Anti-Discrimination Act, those complaints lack substance and permission for them to go ahead is refused.

Race discrimination

52. Race discrimination by “educational authorities” against “students” is unlawful: Section 17(2) of the Anti-Discrimination Act provides that:

(2) It is unlawful for an educational authority to discriminate against a student on the ground of race:

(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.

53. The University is an educational authority and Mr Spencer is a student: Anti-Discrimination Act, s 4.

54. Discrimination on the ground of race is defined in s 7(1):

(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person" ) on the ground of race if the perpetrator:

(a) on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, 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 of a different race or who has such a relative or associate of a different race, or

(b) on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or

(c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have a relative or associate not of that race, 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) and (b), something is done on the ground of a person’s race if it is done on the ground of the person’s race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.

55. I understand Mr Spencer’s complaint to be one of direct race discrimination as defined in s 7(1)(a).

56. On the basis of these provisions, and s 4A, in order to substantiate a complaint of direct race discrimination Mr Spencer would have to prove that:

(1) he is of a particular race as defined in the Anti-Discrimination Act;

(2) UNSW denied or limited his access to a benefit or subjected him to a detriment;

(3) that treatment was less favourable than the treatment that was or would have been afforded to an actual or hypothetical person of a different race in the same or similar circumstances; (differential treatment) and

(4) at least one of the reasons for the less favourable treatment was his race (causation).

Mr Spencer’s race

57. Race is defined in s 4 of the Anti-Discrimination Act to include “colour, nationality, descent and ethnic, ethno-religious or national origin”. Mr Spencer is an African American. He also refers to himself as Negro. My understanding is that he alleges discrimination on the basis of both his colour and his ethnic origin.

Denied a benefit or subjected to a detriment?

58. The word “detriment” in s 50 has been interpreted to mean “loss, damage or injury” that is “real and not trivial”: Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [40]. Whether something constitutes a detriment must be determined objectively and not subjectively: Sivananthan v Commissioner of Police, NSW Police Service at [41].

59. Failing to advise Mr Spencer that he could apply to do a joint degree is not a detriment nor is it conduct which denied or limited his access to a benefit provided by UNSW. Otherwise, UNSW would breach the Anti-Discrimination Act every time they failed to expressly advise a student of an option for study when the person had not even applied for entry into that program. This part of the complaint lacks substance and permission for it to go ahead is refused.

60. Failing to penalise the female student to the same extent as UNSW penalised him is not a detriment to Mr Spencer. Only conduct affecting Mr Spencer can be the subject of a complaint by him. To the extent that Mr Spencer alleges that UNSW has breached the Anti-Discrimination Act in the way it treated other students, the complaint lacks substance and permission for it to go ahead is refused.

61. Apart from these two instances, it is likely that, if this matter were to proceed to a hearing, the Tribunal would find that the alleged conduct, if proved, constitutes a “detriment” or limiting Mr Spencer’s access to a benefit: Anti-Discrimination Act, s 17(2)(a) and (b).

62. But proving detriment or proving that UNSW has limited or denied his access to a benefit, does not establish a breach of the Anti-Discrimination Act. The treatment must be “differential treatment” and it must be “on the ground of” Mr Spencer’s race.

Differential treatment

63. The first component of the test for direct race discrimination is the "differential treatment" test: Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 at [45]. If I give Mr Spencer permission for the complaint of race discrimination to go to hearing, the treatment afforded to him would be compared with the treatment that was or would have been afforded to a person not of his race in circumstances which are the same or not materially different.

64. Mr Spencer identified certain students, although not by name, as comparators for the purpose of the differential treatment part of the test for direction discrimination. For example, in relation to the awarding of individual marks for a group assignment, Mr Spencer claimed that a Caucasian student received a mark of 89%. UNSW said that the two highest marks were not awarded to the Caucasian members of the group. There is a disputed question of fact about whether there is a relevant comparator. Mr Spencer was ultimately awarded the group mark of 58% for the second assignment.

65. Mr Spencer said that when he complained about the female student of a different race who complained about him, she was treated more leniently than he was. He said weeks passed before his complaint was acknowledged and although the student had attempted to blackmail him, she was not prevented from attending campus while the complaint was being investigated. As far as he knows, that student was not penalised. Mr Spencer regards the way he was treated compared to the way the other student was treated as amounting to race discrimination.

66. Mr Spencer is highly unlikely to be able to prove differential treatment in relation to any of the allegations because the circumstances in which he was treated are materially different from the circumstances in which any actual comparator was treated: Anti-Discrimination Act, s 7(1)(a). For example, the female student was not restricted from campus or reprimanded because, unlike Mr Spencer, she did not threaten violence against anyone. I understand that Mr Spencer asserts that his email does not threaten violence or intimidation but, in my view, a Tribunal hearing this matter is likely to find that the circumstances relating to the complaint against the female student were materially different.

67. For each of the instances where there is no actual person whose treatment can be compared with the treatment given to Mr Spencer, the Tribunal would have to rely on a hypothetical person in a comparable situation: Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 at 20. It is difficult to assess how a hypothetical person would have been treated without first addressing the second component of direct discrimination - causation.

Causation

68. The second component of the test for direct race discrimination is causation. To substantiate his complaints, Mr Spencer must prove that at least one of the reasons for UNSW treating him in the way they did was his race. As with the vast majority of complaints of discrimination, a causal link would have to be established by inference from primary facts: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262. The following principles identified in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70] are relevant:

“... (b) an inference must be reasonably drawn on the basis of the primary facts;

(c) an inference can be drawn from a combination of facts, none of which viewed alone would support that inference ;

(d) a fact relied on as the basis of an inference need not be proved to the requisite standard of proof; it is not enough that the inference is a mere possibility: it must be one of "probable connection";

(e) the inference must be a logical one, and not supposition;

(f) an inference cannot be made where more probable and innocent explanations are available on the evidence.”

69. Mr Spencer complains about the way he was treated by at least six academics and staff members of UNSW - Professor Wai Fong Chua (Pro-Vice-Chancellor, Students), Dr Martens, Professor Whitelock (Head of School), Ms Kim Pettigrew (Legal Counsel), Bronwyn Ward (Student Manager) and Matthew Rodney (Student Integrity Adviser). According to Mr Spencer, each of these people was motivated by his race to make unfavourable decisions about him.

70. Despite that assertion, Mr Spencer speculates as to other reasons for UNSW’s conduct. For example, he says in relation to the marking for the group assignment that Dr Martens treated him and other students unfavourably because she does not like them. Even if Mr Spencer could prove that Dr Martens did not like him and other students, treating someone unfavourably for that reason is not discrimination as defined in the Anti-Discrimination Act. Similarly, Mr Spencer speculates that the reason the marking system was changed was in retaliation for him complaining about the plagiarism finding. Again, even if Mr Spencer could prove that that was the case, treating someone unfavourably for that reason is not discrimination or victimisation as defined in the Anti-Discrimination Act.

71. Mr Spencer’s submission that all of the decisions that UNSW made which were unfavourable to him were on the ground of his race is speculation. There is no evidence on which such a serious inference could be drawn. In my view, if this matter was heard, the Tribunal is likely to find that UNSW had more probable and innocent explanations for the decisions it made about Mr Spencer.

72. In those circumstances it would not be fair or just to allow his complaints of race discrimination or victimisation to go ahead.

Orders

1. Leave is refused for Mr Spencer’s complaint of race discrimination under the Anti-Discrimination Act 1977 (NSW) to proceed.

2. Leave is refused for Mr Spencer’s complaint of victimisation under the Anti- Anti-Discrimination Act 1977 (NSW) to proceed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 19 June 2017